JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 9, 1999

• 0942

[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): Good morning, ladies and gentlemen.

We have with us this morning, from Guardian Interlock Systems, Mr. Ian Marples and Mr. Jean-Claude Mercure.

Good morning. I understand you have a presentation of approximately five to ten minutes. You also have brief tapes, in both English and French. We'll play those. You'll show us the interlock machine you have here, and then perhaps we'll go outside to see its use on a motor vehicle that you have outside. All that within an hour—and questions.

In any event, that's the routine for the first witness this morning.

I invite you, Mr. Marples, to start your presentation.

Mr. Ian Marples (President, Guardian Interlock Systems Corporation): Mr. Chairman, members of the committee, I'd like to thank you for the opportunity to appear here today. It's certainly an honour to appear at this important time in the context of a review of the drinking-driving provisions of the Criminal Code.

I'd like to introduce my colleague, Mr. Jean-Claude Mercure, the chargé du projet for our company in connection with an interlock program we have in the province of Quebec.

[Translation]

If the francophone members of the committee have questions and would like to be given an answer in French, it would be best if they addressed their questions to Mr. Mercure.

[English]

I have prepared a written brief, and I'll be following the text of that quite closely. If you have any questions as we go along, please feel free to interrupt me.

Impaired driving is certainly Canada's most prevalent crime, measured in numbers. In terms of the effect—deaths, injuries, destruction—it's arguably the most serious as well.

Judging from statistical indicators such as charges laid and fatal accident crashes involving alcohol, the drinking-driving problem appears to have diminished somewhat since it was last addressed in major amendments to the Criminal Code in 1985. However, according to such sources as the Canada Safety Council, the actual incidence of impaired driving may in fact have increased rather than decreased. Certainly one thing is clear: impaired driving in Canada continues to manifest itself at levels that are socially, politically, and economically unacceptable.

Over the years, numerous federal and provincial laws have been enacted to combat drinking and driving in Canada. However, many of these laws reflect assumptions that are arguably more myth than reality, and as such, in my view, are inherently flawed.

These assumptions are: that first-time impaired-driving offenders are fundamentally different from repeat offenders; that enforcement of anti-drunk-driving laws will be effective, and consistently applied; that public advertising and awareness campaigns directed toward reducing impaired driving will have a positive effect at all levels; that licence suspensions imposed for impaired-driving offences will be complied with; that traditional legal sanctions, such as fines, licence suspension, and incarceration, will be effective deterrents against impaired-driving recidivism; and finally, that increasing the severity of traditional legal sanctions for such offenders will enhance the deterrence effect.

Impaired-driving laws frequently draw important distinctions between first-time offenders and repeat offenders, as if these groups were fundamentally different. In fact, virtually everyone caught drinking and driving these days is a repeat offender.

• 0945

If there's any doubt about this statement, consider the fact that it's generally accepted by researchers than a person can drive between 200 and 2,000 times in an alcohol-impaired condition before they are likely to be caught once.

On this basis, legislative distinctions between so-called first offenders and repeat offenders are really just perpetuating a myth. Measured against reality, the distinction between these groups is at best a blurred one, for today's impaired-driving offenders are not just casual social drinkers who inadvertently made an error in judgment. That may have been true to some extent in the past, but it's no longer true today. A succession of public education and awareness campaigns over the past decade has had an impact. People have gotten the message, and responsible people have listened.

In the face of widespread awareness about the dangers of drinking and driving, impaired-driving offenders are today, by definition, people who have demonstrated by their conduct that they are unable or unwilling to make responsible decisions about driving after drinking. By and large, they are problem drinkers, people who can't control their consumption or who are alcohol dependent.

The conduct of drinking and driving offenders, both pre- and post-conviction, also indicates that they're not deterred by such traditional legal sanctions as fines, licence suspension, or incarceration. Because of their alcohol problems, the integral part that driving plays in the lives of most adults today, and the very low probability of detection on any given occasion, they are likely to continue driving, and driving after consuming excessive quantities of alcohol.

In light of this, what about recent moves in some jurisdictions to increase licence suspension periods? If suspending licences of convicted impaired drivers is unlikely to prevent them from reoffending, can we at least keep them off the roads longer?

The answer, unfortunately, is no. Although there is evidence of high compliance with short suspension periods, that's not the case with long suspension periods.

In fact, there are indications that at some point in time, licence suspensions tend to become counterproductive, as people not only drive under suspension but at the end of the suspension period they also fail to apply for licence reinstatement, and are lost forever to the system of legal licensing and control.

Briefly put, it is unrealistic to expect that people who have proven themselves to be irresponsible about driving after drinking, and are undeterred by the threat of a lengthy licence suspension, will be any more responsible about complying with such a suspension after it has been imposed, or deterred by an even longer suspension period if caught again.

On a more general level, it's my contention that it would appear that underlying the assumptions we've gone over are more fundamental notions that place reliance on responsible decision-making and self-control by people who could be characterized as inherently deficient in these very areas. Unfortunately, measures based on such notions cannot be expected to achieve a high level of effectiveness.

Therefore, unless governments are prepared to commit vast resources to enforcement—the proverbial police officer on every street corner, as it were—it's unlikely that the problem of impaired driving will be alleviated to any significant degree in the foreseeable future.

Against this backdrop, ignition interlocks represent a promising new initiative in the struggle against impaired driving. An interlock is basically a sophisticated breath-alcohol testing instrument that is installed in the vehicle in a way that links its operation with that of the ignition, the starter, the electrical system, and other on-board vehicle systems. The user must take and pass a breath test before being able to start or drive the vehicle.

Retests are also required at random times, as long as the engine is detected as running. In the event that a retest is not taken, or alcohol is detected above a pre-set limit on any of those retests, an alarm is activated, and it remains on until the person either takes and passes the breath test or pulls over and shuts off the vehicle.

• 0950

The interlock device includes features designed to monitor and record data on critical functions and events, guard against tampering or circumvention attempts, and ensure that users comply with the supervision and reporting requirements prescribed by jurisdictional administering authorities.

In this regard, the use of interlocks by impaired-driving offenders doesn't take place in isolation. It typically involves participation in a program of close monitoring and supervision that's administered either by court officials pursuant to a probation order or by driver licensing authorities as a condition of licence reinstatement.

In criminal justice terminology, ignition interlocks constitute a form of incapacitation that prevents impaired driving by physically stopping a vehicle from being operated if the intended driver has had too much to drink. With interlocks, the focus is primarily on controlling behaviour in the interests of public safety.

This approach does not involve assumptions grounded in the kind of questionable notions about self-control and responsible decision-making that seem to underlie most drinking-driving countermeasures.

On the contrary, interlocks imply a practical recognition that the type of offender we've been referring to will probably continue trying to drive after drinking in spite of the risks, and apparently in spite of the consequences as well.

Viewed in these terms, interlocks make sense as an effective way to control drinking-driving behaviour and prevent further offences.

If it makes sense to use ignition interlocks to prevent impaired driving offenders from reoffending, then, in my view, it also makes sense from a traffic safety perspective to get these offenders on an interlock program at the earliest opportunity.

This is not to suggest that interlocks ought to replace driving prohibition orders under the Criminal Code, or licence suspension imposed under provincial legislation, or even that the duration of those measures should necessarily be reduced. They serve to underlie society's determination not to accept, and to protect itself from, people whose behaviour represents an unacceptable level of risk that all too often results in tragedy.

On the other hand, acknowledging that the meaning of many terms undergoes evolution as times and circumstances change, it is suggested that recent developments in interlock technology afford both an opportunity and a reason to reconsider what terms such as “licence suspension” should mean, and what they should entail with regard to impaired-driving offenders.

At the provincial level, a growing number of jurisdictions have adopted a graduated approach to reinstatement for impaired-driving offenders, which includes an interlock component at an intermediate stage. In these jurisdictions, persons whose drivers' licences have been suspended or revoked for drinking-driving offences under the Criminal Code may become eligible for restricted driving privileges, with an interlock installed in their vehicle, upon the expiry of the mandatory driving prohibition period imposed pursuant to subsection 259(1) of the Criminal Code, even though technically they continue to be under suspension or revocation.

In many cases, an interlock-restricted permit allows the offender to get, or keep, a job. This can be particularly beneficial in areas that are not well served by public transit, which, as we all know, outside of a handful of major metropolitan areas represents geographically the bulk of this country. These positive effects can have spillover consequences in terms of family life, reduced social welfare costs, etc.

At the same time, because the interlock is a highly effective means of control—in other words, people can continue to drink, and they can drive, but they cannot combine the two behaviours—the public is protected from further incidents of impaired driving.

Under the scenario just described, the offender is kept on an interlock program for at least the remainder of the suspension period, but possibly longer, depending on both performance and compliance with program conditions.

In fact, it appears that at least one jurisdiction, Alberta, is moving in the direction of open-ended interlock programs under which offenders are required to keep an interlock unit in their vehicles until they can demonstrate it's no longer required in the interests of public safety, and that the risks have been reduced to acceptable levels. For some people, that may mean keeping it in for a very long time—perhaps indefinitely.

• 0955

Apart from control, two other potential benefits also point in the direction of early interlock use. The first is that interlocks are a very effective screening tool.

As an adjunct to assessment, reports of events that are monitored and recorded by the interlock device can be of great assistance in determining what type of therapeutic intervention is most appropriate for that particular offender.

Second, interlock use, over time, particularly when combined with treatment, is also showing promising results in terms of long-term behavioural change, helping impaired driving offenders develop new and more responsible patterns in relation to drinking and driving. Of course, that means a reduction in recidivism.

It's submitted, therefore, that serious consideration should be given to ignition interlocks as a sanction, and perhaps even the principal sanction, for most drinking and driving offences under the Criminal Code. The exceptions, of course, would be offences that involve injury or death. In addition, particular attention should be paid to specific measures directed toward early, widespread, and, in appropriate cases, for those who need it, long-term use.

Admittedly, many measures will involve, and in some respects depend upon, complementary legislation enacted at the provincial level. This, of course, is a major concern.

For example, even if Parliament were to abolish driving prohibition orders in favour of mandatory probation tied to interlock use, provincial authorities could still effectively thwart efforts to encourage interlock use at an early stage by postponing eligibility until after completion of a lengthy suspension period.

Nevertheless, it is suggested that in spite of such obstacles there is an opportunity, through careful planning and drafting of provisions under the Criminal Code, to establish a flexible legislative framework to both accommodate existing provincial differences and encourage progress toward an approach that places greater emphasis on controlling, as opposed to punishing, drinking-driving behaviour.

Although not intended to be a comprehensive list of suggestions, recommended changes might include these.

The first is providing for conditional driving prohibition orders, pursuant to which driving would be prohibited unless the offender participated in and complied with the conditions of an interlock program recognized and approved by the court.

Another change might include mandatory probation for all impaired-driving offenders, with standard conditions to include a restriction on driving unless pursuant to and in compliance with an approved interlock program.

A third approach might be to extend the term of probation orders in impaired-driving cases. This is particularly appropriate in the face of a lengthy provincial driving suspension period. Extend the term of probation orders in such cases until well after the expiry of the applicable provincial driving suspension, with a stipulation calling for a review prior to expiry of the probation order—a kind of “show cause” hearing.

At the hearing, offenders who had either not participated in an interlock program prior to that point or not complied with the conditions of the program could be required to show cause with regard to why they should not be re-sentenced on the original charge.

Two other alternatives might be providing, in appropriate cases, for probation orders of an indefinite duration in order to track not only participation in an interlock program but also, in appropriate cases, continuing compliance.

Finally, I think it would behoove the committee to seriously consider, for so-called first offenders, permitting conditional discharges, with a stipulation that the terms of probation would include mandatory participation in and successful completion of an interlock program approved by the court.

• 1000

To summarize, although interlocks are not presented as a panacea, a growing body of evidence that's based on experience to date in Alberta, Quebec, and 37 states in the U.S.—and as of February of this year, Sweden—supports the contention that widespread use of interlocks among impaired-driving offenders throughout Canada could very well result in a significant improvement in the overall problem.

Thank you.

The Chair: Thank you, Mr. Marples.

We have the tape here, but I think we'll forgo it because of our timing problem. It's available for members to watch. It's just a five-minute presentation on how it works.

Perhaps you would like to come forward, Mr. Marples, and show us how it actually works. You have one of the interlocks here. Then we'll go to questions and answers.

Mr. Ian Marples: It's difficult to get a true appreciation for what the interlock is just by looking at something like this, a tabletop demonstration unit, because in a vehicle you don't see all of this paraphernalia.

The interlock consists of two components. A control module, which is about the size of a CB radio, is typically mounted underneath the dash of a vehicle. It has a digital display that will display messages for the driver, particularly when the unit is ready to accept a test. If the test subject has not delivered the sample properly, it will contain suggestions as to what they can to provide a proper sample. The other component is the very sophisticated breath-alcohol tester.

That's it, in essence. You can see all these wires that come from the control module. Those are hard-wired into various connections in the vehicle, so it's linked to the ignition and the starter. There's a separate alarm horn. It picks up a tachometer signal to record when the engine's running. It's also connected to the vehicle's power system.

Having said that, it doesn't depend on the vehicle's power system to preserve the data recorded. A lot of interlock program participants think they can defeat it by simply disconnecting the battery, but it has its own internal power source to make sure all logged events are preserved so that they can be downloaded to a computer and forwarded to administering authorities.

Before starting the vehicle, the person must provide a breath sample that shows a breath-alcohol concentration below whatever the pre-set limit is. That depends on individuals' jurisdictions, or, in theory, it could be legislated through the Criminal Code.

In Alberta, for instance, the level is set at .04, so after a couple of drinks, chances are you're over. In Quebec, it's set at .02.

As I understand it, from a forensic science standpoint, that's effectively zero tolerance. One drink and you're over.

The reason it's set below the legal limit is that philosophically, what interlock programs are trying to do is not only control drinking-driving behaviour but also teach offenders to develop more responsible patterns in relation to driving after drinking.

If you're going to be drinking, don't plan to drive. That's the message. For people who can't or won't make a responsible decision in that regard themselves, the interlock makes it for them.

When I say that this is sophisticated, I mean it has a very extensive range of what we call “anti-circumvention” features. This unit was developed to meet standards that are prescribed for devices used in Alberta. Alberta has set the standard, worldwide. Interlocks that meet the Alberta standard are significantly more sophisticated and effective than those used in the United States, for instance.

That's partly due to more severe climatic conditions, but as well, Alberta said, okay, if we're going to have an interlock program, we want a device that's rugged, durable, can't be fooled, accurate, and alcohol-specific.

This is all of those things and more. You can't fool it by filtering the breath sample, using a bogus breath sample, or anything of the sort. It is a highly sophisticated device that effectively ensures that people who are driving an interlock-equipped vehicle cannot have been drinking.

• 1005

So to get the vehicle started, you blow into the device, and partway through the blow you introduce a hum without backing off on the pressure. This is because the interlock is looking for a human breath signature. It's looking at the pressure you introduce the sample with. It's looking for the volume of air. It's looking at the temperature. It's looking at the frequency of the hum and several other incidents that tell it that this is coming from a human subject, and it hasn't been altered or filtered in any way.

I'll demonstrate what you have to do. It's kind of tricky.

Now it's processing the sample.

That beep tells me I can start the vehicle.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Which vehicle?

Mr. Ian Marples: Well, if you'd like to see it in the flesh, as it were, I have brought my own car. It has an interlock in it. You can see it work in a real-life, real-time setting.

Having had an interlock in my vehicle for quite some time, I'm firmly convinced that from the user's standpoint, it's a no-brainer. It tells you when it wants a test. You simply take the test and continue on your way—unless, of course, you're trying to do that after drinking. Then it becomes your worst nightmare.

Mr. Gary Lunn (Saanich—Gulf Islands, Ref.): If you're in the city, stopping and starting all the time, will it know that and ask you for a test only every couple of hours? Two, what happens if you're driving down the highway and it wants another test?

Mr. Ian Marples: I'll answer your questions in order.

It tests and retests at random points in time. Because this is a demo unit, the time sequence is in effect moved up to show you those features. This beeping sound is what happens when a retest is required.

To your second question, no, you don't have to pull over. It's called a running retest. The idea is that it can be taken while the vehicle is running, even while it's in motion, without significantly impairing safety. It requires less attention than tuning the radio in the car. You don't have to take your eyes off the road. You'll hear the signal. You don't have to look at the display. You simply pick up the sample head, blow, and continue driving.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): What happens if you fail while you're driving? What if you consumed alcohol, passed when you started the car, but 15 minutes down the road your blood-alcohol concentration is over the limit?

Mr. Ian Marples: Yes, that's certainly conceivable, and that's one of the reasons for the retests. It's partly to ensure that the person who started the vehicle is the person who's driving and partly to ensure that they haven't been consuming alcohol while they're driving or that they're not in a rising blood-alcohol mode.

If you fail the test or don't take a retest, then a signal will sound telling you either to pull over or that you must pass the test. If neither of those actions are taken within the allotted time, which can be anywhere from two to five minutes, depending upon what the jurisdiction prescribes, an alarm will sound. That alarm will remain on until remedial action is taken.

It will also be logged, on what we call the “data logger”, as a program violation. People who are on an interlock program have to have their vehicles serviced, typically ever couple of months, but that's if they're in compliance. If they do things such as miss or fail a retest, it may result in automatically advancing the recall date. If they don't come in when they're recalled, the vehicle will shut down. It will go into a permanent lockout state. It cannot be started at all, regardless of how sober the person is.

Interlock programs are intended to be programs with real teeth to them. As long as you comply, it's a no-brainer, but if you try to fool with the system or defeat the program conditions, you won't be driving.

The Chair: Perhaps we can go into the formal questioning right now, with five-minute rounds. I'm not sure we'll need that long.

Go ahead, Mr. Harris.

Mr. Richard M. Harris (Prince George—Bulkley Valley, Ref.): If we had one of these in every new vehicle made, eventually we might be able to completely eliminate impaired driving as a result of alcohol. But that's probably just a wish.

• 1010

What is the cost of one of these devices, both as an outright purchase and also as used under the Alberta scheme?

Mr. Ian Marples: For drinking-driving offenders, interlocks are typically not available for sale. They're provided as part of a program package that includes the use of the device, installation, monitoring, servicing, and reporting to jurisdictional authorities. In Canada, the cost to the user is about $3 a day.

Now, that's not an insignificant amount, but if you translate that into terms that our clients can understand, it's about the price of a drink a day. The reality for these people is that they have to drink less; otherwise, they're not going to be driving.

Mr. Richard Harris: I know you did make a comment in your presentation that in no way should the interlock system be considered a substitute for criminal and administrative sanctions but rather should be used in addition to any type of sanctions that are in place or could be improved on.

Mr. Ian Marples: I certainly think sanctions represent a statement by society, if you will, that the behaviour is unacceptable, that it will not be tolerated, and that society is determined to take whatever measures are necessary to protect itself from people who create unreasonable risk. Having said that, given the benefit of my experience in this business for a number of years now, I can tell you that the key to widespread interlock use is to get it on at an early stage. If people are subject to sanctions that include a driving prohibition period or a licence-suspension period that goes on for years and years, those people are going to be lost to the system forever. Because the chances of being caught are so low, it's in their interest to drive while under suspension or under prohibition. And the vast majority do.

Mr. Richard Harris: I think that's one of the points we looked at during these hearings, the ability to increase the chances of being caught by giving the policing powers more authority or more powers to make random tests, to have field devices approved as full certification, and to make that certificate evidence more acceptable in the courts.

Mr. Ian Marples: I think all of those measures are going to yield positive results, but having said that, the reality is that enforcement authorities have limited resources, and they can't be there on every street corner, outside every bar, every weekend evening.

Mr. Richard Harris: I think some of us have thought during these hearings that certainly one of the things we have to do is make those resources available if we're going to take the fight against impaired driving seriously.

One last question. You're probably asked this in every session. What's stopping someone on this program from simply getting in someone else's car and driving? That's where the law comes in. We have to have the teeth to back it up if we're going to say, “You can't drive”.

Mr. Ian Marples: Yes. The jurisdictions that have the more successful interlock programs are those that enact complementary legislation to help with potential problems such as that.

One thing that might be considered would be to make it an offence for a person to knowingly supply a non-interlock-equipped vehicle to someone of an interlock-restricted driving permit.

I think we can also see situations where someone might stand back and let a person drive a vehicle that's not equipped with an interlock even though they know the person is on an interlock-restricted permit, but it's quite another matter for that person to become involved themselves in an offence by loaning or otherwise supplying a vehicle to that person.

That's not perfection, but that's just an example of one of the things that can be done to help out in that regard.

Mr. Richard Harris: Okay. Thanks.

• 1015

Mr. Gary Lunn: I have just one quick one.

The Chair: Very quickly, Mr. Lunn, please.

Mr. Gary Lunn: Is the cost completely borne by the user? As I see it, it's almost like a lease program.

Mr. Ian Marples: Yes, it's a 100% user-pay program.

Mr. Gary Lunn: Okay.

The Chair: Thank you.

Mr. Brien.

[Translation]

Mr. Pierre Brien (Témiscamingue, BQ): I would like to follow up on the same question. What are the costs to individuals? What is the impact, financial and otherwise, of the use of this system? How do you view it? Finally, what link is there between that and insurance and all of the rest?

[English]

Mr. Ian Marples: From the user's standpoint, the hardship financially is not the cost of the interlock program. If you can afford a vehicle, you can afford to be on the interlock program. As I mentioned before, it's essentially self-financing in the sense that it costs about the price of a drink a day, and people have to drink less.

The problem is from an insurance standpoint. Typically an impaired-driving offence will mean that insurance rates go sky-high. They double. Many people choose not to come on an interlock program not because they can't afford the program but because they can't afford insurance.

What do they do? They remain outside the system, and chances are they continue to drive and slip into a mode where they're driving after drinking again.

So they're effectively prevented from being on an interlock program because of the insurance costs.

Jean-Claude, perhaps you'd like to add to that.

[Translation]

Mr. Jean-Claude Mercure (Project Director, Quebec, Guardian Interlock Systems): At this stage, allow me to explain that we have gotten in touch with car insurance companies in Quebec regarding this issue. I am speaking about Quebec because it is the Quebec situation I deal with. We have obtained the agreement of certain insurers who have accepted to become partners in this fight against driving under suspension or under the influence. They have accepted to cancel 100% of the surcharge during the period of time during which the individual is in the program and uses the interlock device, which is 12 months. They demand that the unit be used for 12 months.

Secondly, the surcharge Mr. Marples spoke about is required for a three-year period once the individual has recovered his regular driver's licence. In Quebec, this surcharge amounts to approximately $700 a year; it is higher than in other provinces. Therefore, during the three years following the reinstatement of your regular license, you must pay a surcharge of more than $2,000. The fellow who accepts to participate in our program will have to pay approximately $1,050 for the one-year period. This cost is less than what he saves when his insurer tells him that if he uses the unit for a period of one year he won't have to pay the surcharge for a period of three years. It is what we call our zero tolerance, zero surcharge program.

The problem we now have is of a different nature. Unfortunately, the insurers who wish to offer this to their clientele are unable to do so because they don't know which of their customers have had their license suspended. When we attempt to obtain this information, we are blocked by the Access to Information Commission.

Furthermore, those insurers who are interested in the program only offer this service to their clientele. Their aim isn't to go after surcharges in order to make more of a profit, because all of them have very generously said the following: “We are going to offer the service. If 33% of our customers opt for your program, we will impose surcharges on 66% of them. We will spread out the amount of money we get from these people across our client base of good citizens and we will reduce their premiums. We don't want to make a cent from this. We simply want to remove unfairness.”

There is a statistic that you unfortunately do not have, and it is the following. At present, in Quebec, only 10% of people tell their insurer that their license has been suspended and therefore only 10% of insured drivers are paying a surcharge. With the proper information, insurers could impose the surcharge on those who refuse to participate in your program, spreading out the funds gathered by virtue of this surcharge over the entire customer base and thus removing the unfairness element.

Mr. Pierre Brien: The individual must undergo a service check every two months. If there has been a violation, who will determine that? Is it the mechanic at the garage where the person brings his vehicle? Who, in the end, tells whom about it? That is my question.

• 1020

Mr. Jean-Claude Mercure: In Quebec, we have a sub-contractor, Lebeau Vitres d'autos, that has 22 branches.

Obviously, we don't supply this information to the technicians working in the various branches. The technician is able to download the information. The information is automatically transferred to a central unit at Guardian Interlock, in Toronto. We process this information in such a way that when there is data of interest to the Quebec authorities, namely the Société d'assurance automobile du Québec, the Société is given the names of those who have committed violations and is able to access our computer, through an Internet program, in order to apprise itself of the facts and to make the appropriate decisions according to the circumstances of the various cases. It is authorized to summon the individual, to confiscate his restricted permit or to put him back on track. All of these possibilities are available to the Société d'assurance automobile du Québec.

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Automatically?

Mr. Jean-Claude Mercure: There are set standards. After so many violations within a given time frame, we are obliged to supply the Société with the names of the guilty parties. At that stage, it is up to the Société to make a decision and not up to us, because we simply are managers of the program for the Société d'assurance automobile.

[English]

The Chair: Thank you, Mr. Brien.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

I want to thank you very much for your presentation. I think this clarifies a lot of the questions we've had about these devices we've been hearing so much about over the last number of weeks.

I'm still playing the devil's advocate in terms of how to circumvent this machine. I'm wondering what would stop an impaired driver from having somebody else in the car—a child, say, or a sober friend who doesn't have a licence—from blowing in this device.

Mr. Ian Marples: As far as children go, the device that's certified for use in Canada is highly effective in that regard. It requires too much air, under too much force, for a child of an impressionable age to be able to activate it successfully. I think that's a very important safety-related consideration.

As far as the sober friend goes, I believe one of the witnesses here before the committee was Dr. Doug Beirness, from the Traffic Injury Research Foundation. Doug will tell you that there's a very high correlation between drinking drivers and drinking passengers. It's highly unlikely that a person would get in a vehicle and drive with a drunk unless they had been drinking themselves, at least to some extent.

As well, bear in mind that the interlock will fail you below the legal limit. You don't have to be legally impaired.

Mr. Peter MacKay: If we go down this road in terms of legislating the use of these, would you advocate making it a criminal offence to tamper with them, or similarly, making a sober person who blows into one of these devices criminally liable?

Mr. Ian Marples: In the same way that you can make an interlock program more effective by, for instance, making it an offence to supply an non-interlock-equipped vehicle to someone on a program, yes, I think assisting a person to get their vehicle started or to operate it by blowing into the device should be considered to be an offence as well.

As far as the tampering goes, that could probably be taken care of as part of the conditions of the program, whether it was administered by the court pursuant to probation or provincially by driver licensing authorities. I think those kinds of details could probably be incorporated into the program conditions and be a matter of compliance for the user.

Mr. Peter MacKay: Personally, I like your description of using these devices as a “no-brainer”, because it really takes very little brains when it comes to repeat offenders and what they're doing. I just wish we could rig one of these so that on your dash you would get sprayed with pepper spray if you were over the limit, because this is the mechanical equivalent of Antabuse in terms of the reaction it gets. So any kind of disincentive like that...but I don't think that would be constitutional.

• 1025

Another question I have is on the commercial sale of these. I think one of my colleagues touched on that. I can envision parents wanting these on their cars, or an alcoholic with a strong social conscience wanting to take a pre-emptive approach and having one installed in his vehicle.

Are they available for commercial sale?

Mr. Ian Marples: Not these devices, per se, mainly because they're too restrictive. They presuppose a person with an alcohol problem. They presuppose that the person is going to try to beat it and thus have a whole range of measures designed to prevent that.

There are devices that are starting to come on the market with other types of features that are more targeted to the commercial user and the consumer.

But it's interesting that you mention that. I have a 14-year-old son who's going to be driving in a couple of years. Let me tell you, any vehicle he touches will have an interlock in it—not because he will need it but because I will feel better.

Mr. Peter MacKay: I think a lot of people would.

Further to that, maybe you're reluctant to say how much these things actually cost, but I'd be interested in the cost of maybe one of the less sophisticated ones and in what is taking place in terms of research toward an interlock device that would be able to detect drugs. I think most times it would take a blood sample. Is there any research being done in that area?

Mr. Ian Marples: Reach out and jab you, you mean?

Mr. Peter MacKay: Perhaps a pin-prick before you can start your vehicle.

An hon. member: Take the DNA as well.

Mr. Peter MacKay: Yes, and register it.

Mr. Ian Marples: I'm not really competent to venture an opinion. I'm a lawyer by profession, not a scientist.

My understanding is that the way in which substances such as marijuana work on the body is somewhat different from alcohol. Alcohol gets into the bloodstream, and there's a known scientific correlation between the concentration in a deep-lung sample and the concentration in the blood. It's somewhere between 1,900:1 and 2,100:1.

A drug like marijuana, as I understand it, gets into the muscles, the tissues, so it's not possible to determine the actual level or concentration through a breath sample.

Having said that, though, I know there is research that is ongoing—I'm familiar with some that's being done in Australia—to try to come up with something like that.

At the present time, certainly the big problem we face in Canada is with drinking drivers, alcohol impairment. There is a problem with other drugs, but the big problem is alcohol impairment. If we could make significant inroads with alcohol, we'd be a long step along the way.

Mr. Peter MacKay: Thank you.

The Chair: Mr. John McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman.

Thank you for your presentation.

To think I've lived to see the day that a member of the opposition would advocate the use of pepper spray—

Some hon. members: Oh, oh.

Mr. John McKay: —particularly this member of the opposition.

I take it that the major trick here is to get the car started. However you do that.... If you get a sober person to get the car started, say, you're in some respects circumventing the problem. What's to stop a person from getting the car started, going to their favourite bar, just leaving the car running, getting back into the vehicle, and driving home? Even if the little device goes off, all you have is an irritating noise.

Mr. Ian Marples: It's more than an irritating noise.

Mr. John McKay: It's a short drive.

Mr. Ian Marples: The retest was developed because experience showed us that one test prior to starting the vehicle was not enough. People would either get someone to help them start the vehicle or they would start, drive to the bar, and leave the vehicle running, or drink while they were driving. So the retest catches that. If people ignore the retest, then the alarm goes off. It's not just a little irritating noise. It's an anti-theft-type siren.

Mr. John McKay: So it drives you crazy.

Mr. Ian Marples: Well, it's very loud. Practically speaking, I think it would be difficult to drive any distance with that going off.

Mr. John McKay: Is the machine calibrated on the basis of distance or time?

Mr. Ian Marples: Time.

Mr. John McKay: The time the motor is on?

Mr. Ian Marples: When you say “calibrated”, are you referring to when the retest comes on?

• 1030

Mr. John McKay: Well, calibration is maybe a poor choice of terms. There has to be something that triggers the device so that you have to re-blow. Is that based on distance driven or on time?

Mr. Ian Marples: There's an internal time clock that starts running as soon as the vehicle is started. It generates retest requirements at random points in time.

Now, it's even more sophisticated than that, because the first retest requirement will come up quite soon after the vehicle is started. That's to make sure that the person who is driving is the person who started it.

If no alcohol is detected on the initial start and the first retest, then subsequent retests will be stretched out, but they can still occur at a random point in time. The next retest could be 30 seconds after the previous one.

Mr. John McKay: If I'm planning to go out to my bar, and I'm sober at the time, or I have somebody else start the car and I make it all the way to the bar, let's say I leave the car running. The little machine presumably goes off every once in awhile. I don't respond, because I'm not in the car. No one's in the car. The machine, presumably, recognizes that.

Mr. Ian Marples: Yes.

Mr. John McKay: Is that information then transmitted to you?

Mr. Ian Marples: The alarm will remain on until a test is taken and passed or until the vehicle is shut off. It's very loud.

In Quebec, the authorities there have prescribed that the parking lights must also flash, so there has to be both an audible and visible indicator of violation. If the alarm remains on for a significant length of time—typically it's two to three minutes—then that's logged as a program violation. That will automatically move up the service recall date, which means people must come back in to one of our service centres to have the collected data downloaded to a computer, sent to our server, and made available over a secure Internet connection to the jurisdictional authorities. So they'll know about it right away.

Mr. John McKay: Just on the theory that the practical sometimes defeats the good intentions here, when you say you have to come back to a centre, if I'm in northern Alberta, for instance, is my centre Edmonton? Is my centre in Calgary? Where is it?

Mr. Ian Marples: It could be Grande Prairie.

Mr. John McKay: Are these practical distances for people?

Mr. Ian Marples: Yes.

Mr. John McKay: And your company receives the data, presumably?

Mr. Ian Marples: Yes.

Mr. John McKay: What's your obligation to report the data at that point?

Mr. Ian Marples: It depends on what that particular jurisdiction prescribes. In Quebec we have tracking obligations. We have to notify the SAQ if a person on the program accumulates three violations within a six-month time frame, excluding the first month. So it's quite involved tracking.

Mr. John McKay: Does your company get under any pressure to report or not report, as the case may be? “That was just a one-off, the data's not right”—you can dream up a thousand excuses.

Mr. Ian Marples: Our clients have a story, or an excuse, for every single thing that happens.

Mr. John McKay: Those of us who have practised law for a long period know that's true.

Mr. Ian Marples: We have in Canada roughly 4,000 clients on an interlock program at any given point in time—1,000 in Alberta, 3,000 in Quebec.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): In Quebec 3,000? We have the record.

Mr. Ian Marples: In North America there are 40,000. Every single one of those people has an excuse for everything that happens.

Mr. John McKay: What pressure can they put on you to not report?

Mr. Ian Marples: I suppose they could offer to do all kinds of things, but we have a reputation to maintain. As well, the data are there, which speaks for itself. Regardless of what we report to the administering authorities, because they can access the data via a secure Internet connection, they can audit what we do and whether we're doing it properly.

Mr. John McKay: So you can't fudge the data, then.

Mr. Ian Marples: No.

I'm proud to say that Guardian is a 100% Canadian company with the finest interlock device in the world, without question. We have a reputation to maintain, both in respect to the product and the service we deliver, and we're not going to do anything to jeopardize that.

The Chair: Thanks, Mr. McKay.

• 1035

[Translation]

Mr. Jean-Claude Mercure: Mr. Chairman, in response to the member's comment, I would say that in Quebec, we hold the record for the number of alcohol detectors in operation. This is a positive thing, because in the whole of North America, Quebec has the best record for participation by these individuals. We presently reach 22% of the potential clientele whereas everywhere else in America, the best you get is 10 or 12%. I would like to emphasize the tremendous efforts made by the Société d'assurance automobile du Québec in the presentation of legislation that is accessible.

In answer to the member who was asking if distance is a problem for the Quebec clientele, I would say that we have 22 centres throughout the territory, and these centres have been in place since the very day the program was set up. A quite remarkable effort has been made.

Ms. Eleni Bakopanos: [Editor's Note: Inaudible]... as member for Quebec.

[English]

The Chair: We've come to the end of our time. We were going to have a demonstration of the actual car. What is your preference? Some of the members who haven't asked questions have indicated they'd like an opportunity to do so. We can't do both.

Are you interested in quick questions, back and forth?

Go ahead, Gary.

Mr. Gary Lunn: What is the violation rate among people who are supposed to be using interlock of trying to circumvent it using another vehicle, or for any other reason in terms of contravening the law, in Quebec or...?

Mr. Ian Marples: Our experience in the two jurisdictions in Canada is that it's very low. Alberta started their program in 1990, Quebec in December 1997. Obviously there's a discrepancy there in terms of the experience we've had.

Over all the years in Alberta, the number of people who have disconnected their unit or driven another vehicle could be counted on the fingers of one hand. That's in seven or eight years.

In Quebec it's a larger program, and over the course of a year and a half, again, a handful.

Mr. Gary Lunn: Okay.

The Chair: Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Just one quick question.

I've had the benefit of a demonstration in my Orillia office with Mr. Abernethy.

Mr. Ian Marples: Same vehicle—that's right.

Mr. Paul DeVillers: The question I had then is the question I have now. How, in amending the Criminal Code, which this committee is in the process of trying to do, do we get around the jurisdictional circumstances of making this a national program when some of the provinces have not agreed?

Have you given that any more thought since our last meeting?

Mr. Ian Marples: I have wrestled with that almost non-stop. I think it's a difficult task. Some of the recommendations I've made in my presentation might go some distance, I hope, towards providing a framework within which provinces that become more enlightened could take more effective action.

I think the key, though, is really tied towards some form of probation that has an extended term, certainly beyond the three years provided for now.

Mr. Paul DeVillers: It would allow provinces then to pick up the opportunity.

Mr. Ian Marples: Well, what it would do is at the federal level allow that element of control to be there. At the moment, with lengthy provincial suspension periods, people can simply choose to remain outside of interlock programs, wait until the suspension period expires, and then get their licence reinstated without any restriction at all.

If there was a term of probation that tracked them and sort of made sure they were still under an obligation by the court to go on to an interlock program, I think it would increase the participation rate and perhaps make those programs more effective and more widespread.

Mr. Paul DeVillers: Thank you, Mr. Chair.

The Chair: Mr. Brien, or Mr. Bellehumeur?

Mr. MacKay.

Mr. Peter MacKay: I think we would have a market for these things at banks in city centres so that people wouldn't withdraw money when they were really impaired.

Voices: Oh, oh.

Mr. Peter MacKay: No, those are all my questions.

The Chair: Thank you. Mr. Saada.

[Translation]

Mr. Jacques Saada: You answered my question during my brief absence. My apologies.

• 1040

Let us suppose that I have this unit and that my vehicle stops running because I haven't passed the test, etc. My vehicle will no longer start, but I must get it in for servicing. Must I have it towed every time?

Mr. Jean-Claude Mercure: You say that you didn't pass the test and that you left the vehicle on the side of the road. It will start up as soon as you do pass the test.

Mr. Jacques Saada: I let it run as in the example given earlier by my colleague.

Mr. Michel Bellehumeur: After 60 days?

Mr. Jacques Saada: No, not after 60 days, but after I let it run. I was supposed to do the retest but I didn't. I stopped the motor. Will my car start up again?

Mr. Jean-Claude Mercure: Yes, it will start up as soon as you have passed the test, after a certain amount of time has gone by.

Mr. Jacques Saada: I understand. Therefore, to get my vehicle in for servicing, I can always drive it.

Mr. Jean-Claude Mercure: Certainly.

Mr. Jacques Saada: Very well.

Mr. Jean-Claude Mercure: Mr. Marples was explaining earlier that normally there will have to be a recalibration after 60 days.

Mr. Jacques Saada: Fine.

Mr. Jean-Claude Mercure: Let us suppose that after 20 days you make the mistake of not answering the request. In Quebec, you will then hear a siren and your flashers will start going. You have just committed a violation. This violation doesn't prevent you from starting your vehicle again within 30 minutes with a sober person having blown and passed the test.

However, the unit will immediately tell you that the date for going to Lebeau has been moved up. It will be five days after the violation. You therefore will have to go to Lebeau at another date than that set out initially. If you go to Lebeau on that date, it is because something abnormal happened. You will be one of the cases the Société d'assurance automobile will be notified of.

Mr. Jacques Saada: But in those circumstances...

[English]

Mr. Ian Marples: It's important not to get into too great a level of detail, because we could be here for days. I know you don't want to do that.

I think Jean-Claude is making a distinction here between levels of what we call “lockout”. There's a short lockout period, typically five minutes, that comes after a failed test. It's intended to be a bit of a sanction, just to get the person to pause and think about why they're there, locked out of their vehicle.

If they fail the test after the first lockout period, then the next lockout is longer. In Quebec it's fifteen minutes as opposed to five; in Alberta, it's thirty. It can be whatever the jurisdiction decides. We refer to those as the short lockout and the long lockout.

Then there's another lockout, the permanent lockout. That occurs when a person does not bring their vehicle back when they're required to, either because they're required to come back for regularly scheduled service or there's been a program violation and they must return as a result of that.

In either case, if they don't return, then their vehicle will go into permanent lockout, and it can't be started under any circumstances. It must be towed in.

[Translation]

Mr. Jacques Saada: If you allow me, I would like to ask a broader question. Quebec and Alberta have integrated this device into their regulatory framework. These two provinces don't have the reputation of always having the best approach as far as law enforcement is concerned.

Why then is it that the same system isn't yet in place in British Columbia or Ontario, for example? Have steps been taken? Has there been a refusal? Why is it?

[English]

Mr. Ian Marples: I'd prefer to think of it as a situation where Ontario, for example, has not yet achieved the level of enlightenment that Quebec and Alberta have.

Mr. Paul DeVillers: Can I quote you on this?

Voices: Oh, oh.

The Chair: I want to thank you very much, Mr. Marples, for being here, and Mr. Mercure, merci. We very much appreciated your testimony. It was very interesting.

I would think we'll have to proceed with our next witness and forgo the on-site inspection.

Thank you very much for coming. We appreciate your being here.

Mr. Ian Marples: As I said, the videotape will give you a pretty good idea of how an interlock works in a vehicle. If any members would like to have a demonstration at any time, please contact me. I'd be more than happy to visit your riding or to come back here and give you a demonstration.

The Chair: Thank you.

[Translation]

Mr. Jean-Claude Mercure: Mr. Chairman, in Quebec, we have various centres that are surely close to the ridings of Quebec members. It would be a pleasure for us to set up demonstrations for you at an appropriate time.

• 1045

[English]

The Chair: Merci.

Our next witness will be Mr. Mayer, who is now here with us.

We'll take a few minutes to set up.

• 1046

• 1051

The Chair: Order. I'd like to reconvene the meeting.

We have with us, from the Canadian Society for Forensic Science, Mr. Joel Mayer.

Mr. Mayer, the routine is perhaps a ten-minute presentation, and then we'll go to questions and answers.

Mr. Joel Mayer (Member and Toxicologist, Drugs and Driving Committee, Canadian Society for Forensic Science): Am I on?

The Chair: You're on, sir, go ahead.

Mr. Joel Mayer: First of all, good morning to the members of the committee. Thank you for the invitation and opportunity to address you in person on the issue of forensic drug testing in connection with impaired driving by drugs.

I suspect that some of the comments I will make have been heard already. Forgive me if I repeat some information that was before the committee already.

I would like to begin my remarks by asking this committee to consider that from a pharmacological point of view, there should be no distinction made between alcohol found in alcoholic beverages and other drugs that act on the central nervous system, including the brain, and that have the potential to impair driving behaviour or skills performance.

However, in creating a prohibition against impaired driving, or having care or control of a vehicle while impaired, the Criminal Code of Canada appears to create a separation between alcohol and other drugs. Indeed, despite a similar prohibition against impairment of driving ability by alcohol or drugs, police officers are not empowered to collect appropriate samples for the express purpose of testing for drugs as they are for alcohol.

The existing provision in the Criminal Code that allows the demand for and collection of a blood sample comes into operation only when a police officer reasonably believes alcohol has been consumed and breath testing would not be possible.

Part of the reason for the current legislative framework may be that there is a general reluctance to collect bodily fluids or tissues using techniques that are invasive to one's body or intrusive of one's privacy.

In the case of alcohol, the scientific technology of breath testing has made it possible to bypass these hurdles, but for drug testing, these remain a challenge. It is not possible to test for the presence of centrally acting drugs—that is, drugs that act on the central nervous system—in one's breath.

Although testing for centrally acting drugs raises a range of different issues from those associated with alcohol, it should be remembered that all these substances have the potential to impair driving ability, and appropriate detection and measurement strategies ought to be deployed if section 253 is to be applied uniformly.

There is no question that alcohol is a much simpler chemical compared with other centrally acting drugs. Given its chemistry, volatile nature and relatively simple disposition in the body, appropriate breath-testing technologies were developed to detect its presence and measure its concentration in expired breath to allow indirect measurement of blood-alcohol concentration.

These technologies gave us portable screening devices and evidentiary instruments. Both qualitative, which addresses the issue of detection, and quantitative, which addresses the issue of measurement analyses, are necessary in assessing the pharmacological impact and legal consequences associated with alcohol consumption.

• 1055

The first of these establishes the presence in the body of alcohol, and the second allows a correlation with no behavioural changes. A similar approach should be considered for other drugs.

Let me specifically address some of the scientific issues in connection with drug testing. First, the choice of body fluids or tissues appropriate for testing has to be established. In living subjects, blood is the obvious site to determine the presence of centrally acting substances, because whatever is in the blood will equilibrate with the central nervous system and produce an effect.

While blood has a liquid consistency, it may be referred to as tissue because of the large amount of cellular components. In addition to blood, however, saliva and urine are also available for testing.

Let me just back up a little bit and talk in general terms of what happens to a drug when it is introduced into the body. It has to be introduced into the body, into the blood, in order to reach the central nervous system. As a result of simple diffusion, the drug may end up in saliva.

The body's natural response to detoxifying itself is essentially converting a drug into an inactive metabolite and excreting the unchanged drug itself, or the parent drug, and its metabolite, primarily in the urine.

An equally important consideration in developing a drug-testing strategy is to determine what are the drugs or drug classes that should be tested for. The forensic experience in many jurisdictions, including Canada, is that the drugs most likely to be encountered in impaired and fatally injured drivers are alcohol; tetrahydrocannabinol, or THC, the main active constituent of marijuana; benzodiazepines, minor tranquillizers; some illicit substances; and then a smattering of antihistamines, which are available in cold preparations; opiods; and a range of other centrally acting substances.

The pharmacokinetic profiles, or the dispositions in body tissues and fluids, have been well established for most of these substances. As a result, we know that immediately following a drug administration, the urine will contain mostly metabolites of the parent drug. However, it is also possible for metabolites to persist in the urine at a time when blood concentration has fallen below an impairing concentration.

Saliva, on the other hand, would generally contain the parent drug. The drug will passively diffuse into saliva at the rate that is largely determined by the physicochemical characteristics of the drug—its chemistry, its water solubility, and so on.

The salivary drug concentration will also depend on the rate of saliva formation. There is no constant saliva-to-plasma ratio, or saliva-to-blood ratio, for the drugs of interest. It is possible, therefore, to establish the precise concentration of a drug in the blood at the time of saliva collection.

Of greater concern is the fact that THC does not find its way to saliva in detectable concentrations, and it is likely to escape detection in the driver who is impaired by pharmacologically relevant concentrations of THC in the blood.

Please, let's remember that THC is essentially number two on the list of drugs detected in impaired drivers and fatally injured drivers.

When THC is detected in saliva, more likely than not it is detected as a result of recent smoking or contamination or the introduction of marijuana through the mouth.

This, then, should take us to the advantages and disadvantages of what body tissue or fluid to consider in attempting to collect an appropriate sample for drug testing in cases of impaired driving by drugs.

In terms of sample collection, blood is obviously highly invasive. The principal analyte, or the substance we are attempting to detect or measure, is the parent drug itself, or metabolite. The concentration of those substances is low to moderate, depending on what was ingested.

The interpretation that may be given to analytical findings that follow from that kind of testing provide generally a strong correlation for impairment. There is always a scientific debate as to whether or not, as a result of inter-individual variability, we all fit a mould. Clearly we don't, but it certainly begins to provide a lot of information in terms of whether there's likely to have been pharmacologically relevant concentration in the impaired driver at the time of the alleged offence.

• 1100

Potential problems? In many cases, there's a limited sample availability, and the collection of it. When we look at saliva and we go back to those same issues, sample collection of saliva is non-invasive. Urine collection does introduce some intrusion of privacy.

The principal analyte in saliva is the parent drug. In the urine we usually look in metabolite. The analyte concentration in saliva is likely to be low, sometimes extremely low, and below the limit of detection, whereas in the urine we're likely to see moderate-to-high concentrations of the metabolite, and on occasion the parent drug itself.

In terms of interpretation, there's possibly a potential correlation with impairment, but that's fraught with difficulties, because again, the saliva-to-blood or saliva-to-plasma ratio for a drug is never constant.

Some clinicians have, under highly controlled situations, attempted to use saliva results to estimate the actual blood concentration. In the case of urine, when it comes to interpretation, I think most forensic scientists in the forensic community will agree that there is no correlation with impairment. It simply corroborates the drug-taking history that may be given by the individual, or corroborates the observations that may be made by a police officer in terms of the individual's ability to operate a motor vehicle.

Insofar as saliva is concerned, potential problems include contamination from smoke, sometimes from internasal introduction of a substance—cocaine, for instance—and of course oral administration.

Changes in the acidity of saliva will also determine how much drug will have moved through, thereby affecting the saliva-to-plasma ratio.

Urine samples can be adulterated easily. Drug excretion is influenced by the acidity of the urine, and can vary widely, therefore providing not a terribly reliable measurement of whether or not an individual has, at any one time, a pharmacologically relevant concentration of that particular substance.

Therefore, from a clinical and forensic viewpoint, the obvious sample of choice is blood. If the express purpose is to determine what, if any, pharmacological impact a drug is likely to have on a person's ability to operate a motor vehicle, blood represents a central compartment, while saliva and urine are peripheral compartments relative to blood and the central nervous system.

We have to recognize as well that there's a time element that kicks into this whole exercise. Certainly with alcohol there are various presumptions created in the Criminal Code. Generally, efforts are made to collect evidence of blood-alcohol concentration within two hours of the alleged offence where then the Crown will have presumption of guilt. When these samples are collected beyond the two hours, however, a toxicologist will be called in to interpret those findings.

The same clearly will apply to drugs other than alcohol. While their pharmacokinetic profile or disposition in the body is much more complex relative to alcohol, it should be understood that within a two-hour period, if we're not dealing with a situation where an individual has ingested large amounts of a substance immediately preceding that, then within a two-hour period, given the much slower disappearance of many of the substances that are of forensic interest, we're not likely to run into significant changes in the blood concentration of the substances. Therefore, the challenges that may be presented in court with respect to the time of the obtaining of the sample are not likely to be fatal to the prosecution's case.

Clearly, we also have to deal with the forensic laboratory or whatever other laboratory conducts drug tests. We're now into choices of analytical strategies to detect drugs or substances in body fluids or tissues.

I should tell you that there's no one standard in forensic laboratories as to how one should go about these. There are certainly guidelines, though, and accepted practices and methodologies.

• 1105

The Drugs and Driving Committee in fact developed in the past a set of guidelines for forensic laboratories on how to proceed with drug testing. Drug testing probably has three main components. These are time-consuming, and they require fairly expensive technologies at times.

First is the initial screening, which would be a fairly quick screening, sometimes non-specific for drug classes. This then would be followed by confirmation of these findings using technology that offers a much higher certainty, approaching 99% in terms of the presence of the drug. That may be coupled with a determination of a concentration, or it may in fact be yet a third exercise.

For forensic laboratories to be effective in conducting drug tests, it is key that they get a lot of information from the investigators. It can be a very time-consuming and lengthy process if a laboratory simply launches into an exercise to screen for anything that potentially can impair.

The results at the end of this whole exercise can in fact be corroborative or interpretive. It will depend on the choice of fluid or tissue. It may depend on to what extent the laboratory has proceeded in terms of confirmation of its findings.

When it is corroborative, certainly we would have situations where possibly a urine sample is collected and produced in court following some assessment by a police officer that a driver has been impaired by a centrally acting substance. That certainly has been the approach in many U.S. jurisdictions, where they have introduced standardized field sobriety tests, which may lead to an expert, full-blown drug-recognition investigation, a standardized post-arrest procedure where in fact the officer reasonably believes an individual is impaired by a substance other than alcohol.

Those findings have been admitted in court and have been adduced as evidence of impairment by a drug. The corroborative information now comes from a forensic laboratory that produces findings of the presence of that drug or a drug that belongs to a certain drug class that's consistent with the observations of the police officer.

But these are corroborative, not interpretive, and we run into some difficulties, as I indicated earlier, in terms of what is the value of urine drug testing.

The other aspect is to consider carefully whether or not the results of drug testing are probative. Now we have to weigh their probative value against their prejudicial value. A urine sample, again, is a good example, because if in fact an individual had consumed or ingested a substance at some time prior to the alleged offence, and the metabolites persisted in the urine, then it may be that we are running into some prejudicial risk here. The probative value may be outweighed by that, although, again, if there is strong information with respect to the behaviour of the individual, whether it's through standardized field sobriety tests or a drug recognition expert, it certainly adds to the overall package and to the confidence of the findings.

In fact, some jurisdictions, in dealing with the various drugs or substances found in impaired and fatally injured drivers.... The one example I have in mind is in the state of Saar in Germany. They have introduced administrative, not criminal, sanctions against individuals where there is a positive laboratory finding of one of five drug classes, including THC. They have zero tolerance.

In other words, without getting a determination of a concentration, or without getting into an interpretation of what the pharmacological impact is, the mere presence of any one of these five drug classes constitutes an offence and is subject to administration sanctions.

The Chair: Mr. Mayer, do you have much longer?

Mr. Joel Mayer: No, I don't.

I can finish off by saying that, in my view—and this is something the committee has been dealing with—a comprehensive approach to detecting the impaired driver and conducting laboratory tests that in fact provide chemical evidence of a presence of a drug and establish a pharmacological link between that and impairment should probably consider an overall strategy that begins with the police officer, a knowledgeable police officer, who forms reasonable opinions based on his observations of the nature of the impairment, the degree of impairment. This should probably include some standardized test, a physical test or possibly even the drug-recognition-expert type of test, or empowering a police officer to make a blood demand for collection and analysis.

• 1110

I think most jurisdictions have certainly adopted the view that breath testing is a preliminary step to that. Generally, when breath testing shows there is no alcohol in the system, that essentially triggers the last event in the police officer's investigation, making the demand for a blood sample and submitting it for laboratory analysis.

Thank you.

Mr. Gary Lunn: Could I just make a suggestion? The clock's ticking away. Is it possible we could hear the next two witnesses? As questioners, we could then choose which witness we wanted to ask our questions of.

The Chair: Any comments on that, members of the committee?

I'm not sure the Justice officials necessarily.... It's a very specialized area we're dealing with right now. If your concern is timing for the Justice officials, we have lots of time. We can even have a second session if you felt it necessary, if that's your concern.

Mr. Gary Lunn: Fine.

The Chair: Mr. Harris.

Mr. Richard Harris: Are we in questions now?

The Chair: Yes. You're on.

Mr. Richard Harris: I thank you for your presentation, Mr. Mayer.

I have basically one question. One of the challenges we've heard through witnesses previous is with the acceptability of evidence once you get to court.

I guess in a perfect world, when someone is tested for either drugs or alcohol it would be done with an approved instrument that would spit out a printout that says, “These are the results.” You would take that certificate to a court, and the court would look at it and say, “There it is.” Unfortunately, that doesn't happen.

How do we get to a level of certificate evidence that will put a lot of defence lawyers out of business? How do we get there?

Mr. Joel Mayer: The equivalent of a certificate.... I mean, there are precedents for that. For instance, the Department of Health and Welfare runs a laboratory in the eastern end of Ontario, the drug identification laboratory. When they receive a substance off the street as a result of a seizure, they produce a certificate that says what the particular substance is—marijuana or PCP or heroin or so on. It does not say any more or any less. So the official form lends credibility, some force, to that statement.

I'm not necessarily sure, from a scientific viewpoint, that is the best way to ensure that you have proper standards applied and a laboratory that carries out those kinds of analyses. A report can just as easily say the same thing, although it may look less official. It can also report on findings of blood and urine and what have you.

I think the key here is to establish that the laboratory adheres to scientific methodology that's generally accepted in the scientific community and that the individual who presents either that finding or the report can in fact be cross-examined. Given the rules of disclosure we have in Canada, I certainly find we generally have to provide every little bit of paper generated in relation to that case, and every little bit of paper can undergo scrutiny. These days, with the automation of instruments and with the general know-how of what some of these printouts mean, I think a laboratory can certainly defend its findings, assuming it had to conform to various aspects—from quality assurance to acceptable standards and proper documentation of the work they've carried out. That would be no different from the certificate that's issued as a result of breath testing.

Mr. Richard Harris: Thank you.

• 1115

The Chair: Monsieur Brien.

[Translation]

Mr. Pierre Brien: Some people have asked us for greater powers to carry out blood testing, but if I understand correctly various elements of your presentation, it is very difficult to establish a link between the presence of drugs in the blood and impairment, for all sorts of reasons.

Would it be premature to attempt to give greater powers to police officers so that they might take blood samples if proof is so difficult to establish that it wouldn't in any event move things forward anyway?

[English]

Mr. Joel Mayer: I think it would go a long way toward enhancing the investigation. As we all know, right now police officers are not empowered to collect any samples of any kind for the express purpose of drug analysis.

The experience of many forensic laboratories is that there are drug-impaired drivers on the road. The extent or the magnitude of the problem is not nearly that of alcohol, but it is there, and many of those drivers escape detection in those jurisdictions where police officers don't have the tools to investigate those occurrences and to make demands for body fluids or tissues.

I also agree with you that the finding of a drug and a determination of its concentration in the blood is not going to hold everyone hostage, and is not going to have a complete, binding force on the courts. There are going to be times when there will be scientific debate over whether or not that particular drug concentration was in fact sufficient to impair that particular driver.

This is why I strongly believe the only way to succeed in implementing a drug-testing strategy is to in fact include strong elements of investigation, where you have knowledgeable police officers and standardized ways of assessing behaviours of drivers.

So as a package, you're looking at observations on the road. You're looking then at the absence of alcohol, which could possibly explain the degree of impairment. Now you're going to an area where you have a blood finding in relation to a drug. You have the concentration established. While there may be some debate as to whether or not, for that particular individual at that specific moment, the detected drug concentration was the only cause for the observed impairment, I think there would be general agreement that, for instance, the concentration detected is within a therapeutic range, or within a toxic range. From there the interpretation flows.

If it is in within a therapeutic range, for instance, there is a likelihood of adverse side effects, including impairment. If we are in a toxic area, the likelihood of that in fact happening becomes much greater.

If we're in an area where we find a trace concentration of a substance, clearly the argument of the causality between drug finding and impairment follows by itself.

[Translation]

Mr. Pierre Brien: Do you believe that scientific knowledge on the effects of drugs or the measurement of drugs will make great strides forward over time or do you believe that this scientific knowledge has reached a certain limit?

• 1120

[English]

Mr. Joel Mayer: Knowledge about the pharmacology of substances is constantly developing. For some of those substances that have been around for awhile, certainly for those that represent new formulations on the market, the scientific community constantly attempts to establish as much as it can about the pharmacology of these substances—the therapeutic advantages and the undesirable side effects. It's an ongoing process.

I should tell you that this is perhaps where science and the courts differ on occasion. Courts need to establish the legal truth today. Scientists require constantly additional information to establish truth. It's an ever-evolving process.

It may be that on occasion, given the information we have today, we'll not answer the question that's before the court, but I think it begins to go a long way towards achieving that goal.

I think the courts have shown tremendous ability to determine whether a scientist presents junk science to them or whether or not it can stand the test of cross-examination or the test of challenges by other scientists.

So the process almost looks after itself.

[Translation]

The Chair: Thank you, Mr. Brien.

[English]

Mr. MacKay.

Mr. Peter MacKay: Further to that, it appears to me that there is almost an industry out there of scientist-shopping going on. I mean, it's happened with the alcohol industry, and I can see us running into that as well when it comes to drug impairment.

To go back to your presentation—and I thank you for that, as do all members of the committee—has science progressed to the point where there would be the ability to distinguish a level of concentration similar to what we have seen with alcohol? We have this .08 in place, which has become part of the terminology of impaired driving. Are we getting anywhere near a set, designated level of concentration?

I haven't heard anything along the lines of what ability there is to say that at such-and-such a level, you become impaired by drugs. I guess it's the different types of drugs that exist that makes that rather difficult.

I mean, granted, some drugs are illegal, illicit substances, and just by virtue of putting them in your system you're creating an offence, but are we approaching that level of scientific research?

Mr. Joel Mayer: I don't think it's so much a matter of “approaching” it; given the experience we have, it probably answers that question already. I don't believe it is going to be a defensible approach to legislate a presumptive or permissible level—or the “per se” level, as the Americans call it—when it comes to drugs other than alcohol, because the relationship between the drug and its effect is more complex. Inter-individual response to the presence of drugs when it comes to substances other than alcohol is a lot more complex.

Therefore, again, I think the most defensible approach would be to look at the whole package, to look at what investigative information there is, not only to begin to provide support for the notion that the individual shows marked departure from the norm in terms of driving behaviour but also to begin to provide a forensic laboratory some direction in terms of what drugs to test for.

Again, given the absence of alcohol, given the absence of other factors that may have contributed to what appears to be impaired driving behaviour, the presence of the drug, especially when we're looking at blood concentration, begins to go a long way in starting to answer the question.

The debate will persist, but I think in some instances the greatest advocates on either side of the issue will find that the laboratory findings will in fact begin to meet the test—that is, an obvious test.

• 1125

There's impairment, there's a very high concentration of a benzodiazepine far in excess of what is recommended therapeutically, and given everything else that we know about variability of response, we're still dealing with an individual that in all likelihood is likely to suffer the undesirable side effects. Let's put it before the trier of fact.

Mr. Peter MacKay: I think your characterization of it being a “package” is a good one. In my experience, most often there was more than just the physical observations of impairment before the court. There was usually some tangible piece of evidence—a bottle of pills, drug paraphernalia, smell. There would be some other additional, tangible piece of evidence before the court.

This leads me to another question I've had in my mind about the synergistic effect. It's fair to say that in most cases, for instance, the alcohol symptomology is accelerated by the presence of another drug. I understand there may be some drugs that have the reverse effect. They may actually mask the impairment level.

Can you comment on that in terms of the evidentiary burden?

Mr. Joel Mayer: You're absolutely right; substances that are broadly classified as depressants of the central nervous system will at least have an attitude effect. So you're dealing with alcohol and with codeine ingested with acetaminophen, a Tylenol-type preparation, or an antihistamine that's ingested in high quantities, or a benzodiazepine, and let's not forget THC.

Human behaviour is fairly simple, when it gets right down to it. People want to have a good time, and human behaviour hasn't changed. You go out there and you consume alcohol and you smoke marijuana, and some individuals then go on the road. It's not surprising when we find these two combinations as the highest possible prevalence.

One can in fact again argue that given alcohol and a substance, or given two substances, there may be an additive effect—possibly, as you say, more than that, a synergistic effect where one plus one equals three. Again, I think it goes to the issue of whether this individual was unusual in their ability to drive. Did they demonstrate a marked departure from the norm? In fact, the courts have ruled that it doesn't necessarily have to be a marked departure from the norm—

An hon. member: Any.

Mr. Joel Mayer: —and this is where it all starts. Again, absent anything else, if you have unusual driving behaviour, if there's a drug concentration that by all accounts can't just possibly impair but in fact is present in sufficient concentration to produce that effect by all probability, then I think it's certainly up to the trier of fact.

The scientific debate will not disappear simply because we're not testing or measuring the concentrations, but I think it will begin to establish a more effective investigation and provide police officers with much better tools to deal with the drug-impaired driver.

Mr. Peter MacKay: So the key is the training for the officers to know what to look for, what symptomology.

Mr. Joel Mayer: Absolutely key, to my mind.

Again, you don't want police officers to willy-nilly pull drivers off the road because they “think” someone is impaired. Well, let's meet all these criteria of demonstrable effects.

I should tell you, the vast majority of individuals who in fact consume drugs for perfectly legitimate, therapeutic purposes are not going to all of a sudden find themselves at huge risk of being pulled over for impaired driving. The judicious use of all these medications generally results in individuals who can still go through normal behaviours and skilled performances and who will not be impaired as they go through their daily lives.

So we have to understand that. I've heard arguments, certainly, that, for instance, I'm taking an antidepressant for a legitimate condition; what am I facing now—impaired driving charges twice a week?

Well, probably not, unless you begin to exceed recommended oral doses or unless you begin to start mixing and begin to exceed the normal recommended doses.

• 1130

The issue of education certainly crops up in this instance—anything from physicians advising their patients to pharmacists attaching proper cautionary labels on drug containers and so on. At the end of the day, we have to recognize that there are drug-impaired drivers out there and those individuals who take drug-taking to an excess.

The Chair: Thank you. Mr. Saada.

[Translation]

Mr. Jacques Saada: I have two questions, one of them short. The other is more a question of substance.

In the German example you gave,

[English]

I think you were referring to de facto zero tolerance. Since there can be traces of drugs many weeks after you have ingested them, isn't that a societal statement for a total ban on any consumption of such drugs?

Mr. Joel Mayer: In practical terms, zero tolerance means cut-offs have been established such that it is recognized that when a drug—maybe the metabolite of THC, or THC itself—persists in the urine of an individual days or weeks after ingestion, one can arrive at cut-offs that in fact do not jeopardize those individuals who have used substances in the past, whether it's several hours past or several days past. So one needs to establish appropriate cut-offs.

If in fact we're dealing with that type of an approach for that type of legislation, then I would say we are now into almost a per se limit, where you're not criminalized because you have two or three molecules of THC in your system—in fact, you're not even being criminalized; it's an administrative sanction, the example I used—and you have a drug concentration in excess of the cut-off.

There's obviously scientific debate that addresses that issue, much as there is scientific debate over the American approach of their Department of Health and Human Services when it comes to cut-offs of what used to be known as the “nine-to-fives”, for drug testing at the workplace. If you're in excess of that, then you are deemed to have used it in the recent past, and the onus is on you now to explain why you have that particular substance on board and the concentration that's in excess of the cut-off.

Mr. Jacques Saada: We can be impaired by therapeutic drugs. We can be impaired by illegal or illicit drugs.

Now, you started to answer this when my colleague asked his question, but let me go one step further. Impairment by virtue of therapeutic drugs is understandable, or could be accepted at the limit, because it's the drug you take because you need to be cured, whereas the other drug that would provoke the same impairment would then make you criminally responsible.

The question I'm putting to you is, are we really judging the impairment or are we here again projecting our society's image where what is acceptable is for therapy but the rest is not acceptable? In other words, are we really targeting the right target?

Mr. Joel Mayer: I agree with you; there is always the danger of an individual who ingests a substance for legitimate therapeutic purposes running into an adverse reaction, a side effect, possibly impairment. There is that risk, but it seems to me that at that point, dealing with the individual to ensure that they are not impaired on the road by a substance is probably a good thing.

If the mechanism that's available is only through a criminal process, then it's possible that society will have to, on the balance of everything else, decide how to deal with it. As I think you started to allude to, it's possible to create a distinction between impairment by illicit substances that have zero therapeutic value and should not be on-board and those that have a legitimate therapeutic use.

• 1135

When you look at alcohol, we've obviously made a decision that there is a permissible concentration. We haven't ruled it out, except for young drivers in Ontario.

Mr. Jacques Saada: Yes, in some cases.

But impairment, I think, is important in the following sense. If, for instance, I take a pill for therapeutic purposes that says on its label that it may cause drowsiness, and I still take it, am I as liable on paper as if I were consuming, for instance, any illicit drug that would have the same impact, the same effect?

Mr. Joel Mayer: I'm not a lawyer.

Mr. Jacques Saada: I'm not either, I want to reassure you.

Mr. Joel Mayer: We're getting awfully close, I'm sure, to some of the legal issues that great legal minds will debate, but it seems to me that many courts, from my own experience, have generally held that we are responsible for our own actions, and that it is an individual's responsibility not to drink to excess such that they are impaired, and by extension that it is possibly an individual's responsibility not to self-administer substances to the point where they are impaired.

The argument on the other side of that issue is, well, individuals who are impaired are poor assessors of their own condition, so you cannot blame them. They just don't know they are impaired.

In my humble opinion, that goes way beyond the scientific argument, but it's certainly a question that ought to be addressed.

Mr. Jacques Saada: Thank you.

The Chair: Round two.

Mr. Brien, another question, or Mr. MacKay?

Mr. Peter MacKay: No, I think I'm fine, thank you, Mr. Chair.

The Chair: John McKay.

Mr. John McKay: Again, thank you for your testimony. I'm not sure where we're going with this, but let me go back to some basics here.

I take it that the main dilemma in the scientific community is that there is no easy correlation between impairment and the consumption of a drug. There's no consensus on that point.

Is that a fair statement?

Mr. Joel Mayer: Well, there's consensus that certain drug concentrations, on a scale of probabilities and likelihoods, can possibly cause impairment, are likely to cause impairment, or indeed there's almost a certainty that they had caused impairment given the detected concentrations. Now we're into some grey areas, obviously, with some individuals. Are they more tolerant compared with another as a result of prolonged use of this substance, whether it's an illicit substance or a legitimate, ethical, therapeutic formulation?

Again, if we look at the whole package, we have to recognize that it all starts with an individual who offers behaviour that is unusual. Then the pieces begin to fall into place and to in part corroborate, in part provide an interpretation.

When we look at blood testing, I certainly feel this is where the debate is going to be. Are the results of blood tests only corroborative, if at all? Can we take it beyond that? Can we say that they are, in fact, sufficiently probative to tell us that given those concentrations alone and nothing else about the individual or the alleged offence, any forensic toxicology would say the individual in all certainty was impaired?

I don't know. It's a very difficult argument.

Mr. John McKay: Putting the collection issues aside for the time being, the overall weight is nothing other than a consensus among scientists, in particular, but in law as well, that this level of blood alcohol constitutes impairment.

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Mr. Joel Mayer: Impairment, even in relation to alcohol, is on a continuum. I don't think we can suggest today that someone with 80 milligrams in 100 millilitres of blood is not impaired, but someone who has 81 is, and guilty of a specific offence.

Mr. John McKay: But we have as a society arrived at a deal, if you will, a compromise.

Mr. Joel Mayer: That's it.

Mr. John McKay: What I'm directing my question toward is whether there is some consensus—on, let's say, THC—that this kind of concentration in blood, in particular—or saliva, I suppose, or urine, I suppose—constitutes virtually irrebuttable evidence of impairment.

Mr. Joel Mayer: Using THC as an example, there is a consensus. The disposition of THC is unusual. Following smoking of marijuana, blood concentrations of THC rise very quickly, in a matter of minutes. They reach their maximum from there within 10 to 15 minutes.

Following that, there's a sharp drop, to the point where two or three hours after smoking a single marijuana cigarette, say, you may have a blood concentration that is no different from someone who has been chronically using marijuana and has not done so several hours prior to that particular time.

So there is an overlap between residual, circulating THC concentrations and those that occur as a result of very recent exposure. But the general consensus in this area is that we recognize that, so we're not going to interpret concentrations that fall into that overlap area.

The overlap area, just to use a number, for blood-THC concentration may be in the order of 2 nanograms to 4 nanograms per millilitre of blood. If you have an individual, though, who provides a blood sample where the THC concentration is 20 nanograms per millilitre, I think the vast majority of forensic scientists polled would say it represents recent exposure, and by extent, it represents pharmacological effect because of the rapid fall. If you are 20 or higher, you're very likely to have ingested it very recently. Given what we know about the pharmacology of the substance, you're more likely than not to have been impaired by it.

Let's fall back on the observations of the law enforcement individual, and if the two are consistent, you may have something. But if you don't begin with the blood sample, if you don't begin with that step, none of this exercise can happen.

Mr. John McKay: The warrant regime for collecting those kinds of samples is not an effective way to collect samples. I'm assuming that's your working presumption here.

Mr. Joel Mayer: Right now?

Mr. John McKay: Yes.

Mr. Joel Mayer: No, it is not. In fact, I don't believe, as I read the Criminal Code, there is any provision that would allow a demand for collection of blood sample where a police officer reasonably believes impairment is due to a drug other than alcohol. They have to start the reasonable and probable grounds with alcohol. If that's not there, the whole process stops.

Mr. John McKay: Thank you.

The Chair: Any other questions from any other committee member?

Mr. Jacques Saada: May I ask a very quick one?

The Chair: Go ahead, very quickly.

Mr. Jacques Saada: When you referred to the standardized test, were you referring to the roadside test or...? Because that puts this in the position of reasonable and probable grounds.

Mr. Joel Mayer: In those jurisdictions where the sun shines 365 days a year, we can conduct standardized field sobriety tests at roadside. That's why they're called “field” sobriety tests. I suspect, given our climate, you'd be hard pressed to be able to do that in January in Winnipeg, for instance.

The other issue—and I think this is where the lawyers have to come in—is that there has to be a distinction made on whether or not standardized field sobriety tests, whether they happen by the roadside or in a station, are part of the investigation or whether they're a post-arrest procedure.

• 1145

That goes to the issue of detention and to the issue of whether or not the crown attorney can adduce the evidence of those tests at trial to corroborate everything else.

I will probably stop there, because I'm out of my depth.

Mr. Jacques Saada: Thank you.

The Chair: Thank you very much, Mr. Mayer. It's a highly complex area, and you shed some light on that—or perhaps more questions in our own minds.

Thank you very much for attending. We very much appreciate it.

At this time I'll call perhaps a ten-minute break. Lunch has been brought into the room. We will continue through the lunch hour. Everyone is invited to have a sandwich with us.

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• 1208

The Chair: We can reconvene the meeting. From the Department of Justice, we have with us Mr. Don Piragoff and Mr. Hal Pruden, who are in the policy section.

Welcome, gentlemen. Is there a presentation you would like to make or are you here basically to answer questions?

Mr. Hal Pruden (Counsel, Criminal Law Policy Section, Department of Justice): We're here to basically answer questions.

Perhaps, just by way of beginning, we should mention that you've heard from many witnesses that there have been no amendments to the Criminal Code impaired-driving provisions since the major amendments were done in 1985. I'd just like to mention that there have been several amendments since 1985 to the impaired-driving provisions of the Criminal Code, perhaps not amendments that have been radical changes to the Criminal Code, but certainly amendments that have addressed particular problems and have provided solutions to particular problems.

Don Piragoff and I are quite prepared to respond to any questions committee members may have that are related to legal aspects in the Criminal Code.

The Chair: Mr. Harris.

• 1210

Mr. Richard Harris: Mr. Pruden and Mr. Piragoff, I think we understand that there have been some changes made to the Criminal Code in dealing with the impaired-driving issue. The fact remains that notwithstanding whatever the Criminal Code says now and whatever changes have been made since 1985, on our highways we're still killing 1,400 people a year and injuring over 50,000 a year. We have cost our system several billions of dollars as a direct result of impaired driving.

So I guess the question is this: can we as a society continue to tolerate these numbers? If not, how do we go about making changes to the Criminal Code that will be effective in fighting impaired driving and that will also reflect a zero tolerance attitude on the part of the federal government, understanding that jurisdiction and enforcement is primarily a provincial matter?

What is stopping us as legislators from making changes to the Criminal Code that will put Canada in the front of the line with other countries as far as the fight against impaired driving is concerned? Are there any “can't-dos”, in your opinion?

We are parliamentarians and we sit in the highest court of the land, as I understand it, as far as decision-making goes—well, maybe I'm dreaming there, Mr. MacKay, you're probably right. In my opinion, parliamentarians should be the final voice in making decisions in this country. Is it responsible to say that we just simply can't do these things?

Mr. Hal Pruden: There are a couple of questions I would like to try to respond to. The first perhaps relates to comments regarding the extent of the problem as we now have it. Many witnesses, including the Traffic Injury Research Foundation, TIRF, have appeared and have recognized that there has been progress, especially in the 1980s, and that the number of fatalities and injuries has gone down.

That's not to suggest that the problem we still have is not significant or that it should not be addressed or that the Criminal Code should not do its part where it can. It simply acknowledges the fact that there have been improvements to the alcohol-crash problem in Canada over the past 25 or 30 years.

Having said that, let me say that you make a very valid point: the extent of the problem that still remains needs to be addressed. In addressing the problem, you've heard from many other witnesses who have indicated that there needs to be a multi-faceted approach, if you will, and that criminal law amendments by themselves should not be expected to totally eliminate the drinking-and-driving problem in Canada.

Having acknowledged that, I come to the question that you ask: are there any “can't-dos”? I suppose the short answer to that one is to say that there are no “can't-dos”. Parliament can legislate. However, Parliament would also know that the constitutional check, if you will, on what is legislated can be undertaken through the courts, and the courts ultimately are the determiners of whether the legislation that Parliament has passed in fact meets the requirements of the Constitution, including the charter.

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Mr. Richard Harris: I'm glad you brought that up, because I know that there are many people in this country who, at the first threat to their philosophy, will dig out the charter and mount a challenge.

Is there not a section of the charter—I think it's section 1—that talks about the common good of our society? That section could be used to override another section; maybe it could be partially successfully used to override, say, a tough stand taken by parliamentarians. That could be subjected to a charter challenge. Could we not use this other section to say that society will no longer stand for 1,400 deaths a year caused by a 100%-preventable crime? It's 100% preventable if people wouldn't drive while impaired. Could we not say that society won't stand for it, and therefore, for the common good of society, we will use this section to justify any decision that Parliament would make?

I know it's not that simple, but from a common sense point of view, that appeals to many people.

Mr. Donald Piragoff (General Counsel, Criminal Law Policy Section, Department of Justice): There are two aspects to the question. One is that at this stage the question you pose is hypothetical. Yes, section 1 can be and has been used by the courts to in fact uphold a number of the provisions of the Criminal Code dealing with impaired driving, like, for example, the provision concerning roadside screening devices and the right to counsel. The courts read in a limitation saying that the right to counsel was not applicable at the roadside if only the screening device was being been used, as opposed to the evidential system at a full roadside check.

Section 1 has been used by the courts many times to uphold the impaired-driving provisions, so it can be used, but section 1, like any of the limitations on people's constitutional rights, is not a blanket limitation. The courts rightfully look at the act of Parliament and ask if this is a reasonable response, if it is rationally connected. The courts say, “Looking at all the other alternatives, is this one just too violative of rights or does it make sense?”

That then gets to the second part of the question. The biggest limitation with respect to adequate solutions to the impaired-driving problem is not constitutional. The biggest problem is finding practical solutions that will work.

For example, 15 years ago in the United States, a number of states tried a 48-hour minimum jail time for a first offence in the theory that this type of severe punishment would deter people. But because people were faced with going to jail for 48 hours, no one pled guilty any more, the courts became clogged, everyone hired a lawyer and everyone fought these cases as if they were robbery charges. The end result was that the system started to break down because it wasn't working smoothly any more.

It's not so much a question of whether measures are constitutional or not, it's more a question of whether measures will actually work. Just before we took the floor, you heard from experts who testified that, practically, some of the ideas won't work. Some measures aren't going to work at -30° in Winnipeg, because when you're bundled up and looking like a Michelin blimp in a parka, you can't even touch your nose, whether you're sober or not sober.

A lot of it is more about practicalities, and I think that gets to the real issue. You asked, “What can be done?” Unfortunately, there is no silver bullet that can rectify the problem. Basically, three things need to be done. One is education, one is enforcement and one is Criminal Code amendments.

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Mr. Richard Harris: I understand what you're saying, but let me give you an example. Here is a recommendation under the small heading of “evidence to the contrary”:

The Criminal Code should provide that the only type of evidence which would displace the presumption created by breath analysis is direct evidence of the mechanical malfunctioning or improper operation of the apparatus.

That sounds like real common sense to me, considering what we heard from Mr. Berzins, who is a crown prosecutor here. He told us that the acceptance of evidence to the contrary is so diverse and huge that the court automatically tends to believe the defendant in an impaired-driving case before it will believe the Crown. So how about narrowing the acceptance of evidence to the contrary? If that suggestion were made to you, what would be your response—that it's a great idea or that it couldn't be done?

Mr. Donald Piragoff: There has already been some narrowing of evidence to the contrary in the last five or ten years as a result of some amendments. They provided that the reading has to show that not only would it be a different reading but a lower reading. That's the—

Mr. Richard Harris: I'm sorry to interrupt. We had Mr. Berzins sit here and tell us the other day that if a defendant's buddy says he clearly saw him have only two beers, nine times out of ten the judges are accepting that kind of evidence to the contrary. That is—-

Mr. Donald Piragoff: I think that depends on what part of the country you're from, on whether the judges are willing to accept evidence.... It comes down to a question of the credibility of the evidence, to the question of whether a judge is willing to accept the evidence of the so-called buddies that the person only had two beers. The scientific evidence is showing that the person is blowing at about 180 or 200, which does not correspond to two beers. It comes down to a question of credibility. Either the judge believes the police officer or the judge believes the evidence of the accused and the accused's witnesses.

That comes down to a question of human nature and to the demeanour of the witnesses on the stand and all of these factors. We have judges trying to deal with the human factors of witnesses' testimony. You can't legislate that. That is why we have trials. That's why we have judges and juries and not just machines to adjudicate people's guilt.

The problem we face in the whole area of impaired driving is that people keep on talking about the loopholes that exist in the scheme and they keep saying that it's so technical. The reason it's so technical is that the whole scheme is already not treating the accused and the state on an equal basis. An equal basis would be that the state would have to bring all of the scientific witnesses to court, who would then have to testify that taking a breath sample or a blood sample at time two hours is equivalent to what the sample should be or would be at time zero hours.

What Parliament has done is to say no, we're not going to have all these witnesses come here. We're going to take a shortcut. We're going to just deem it that if the sample is taken within two hours it shall be deemed to be the same; even though your blood-alcohol level may have gone up or down within two hours, we're going to deem it to be the same at the time you were stopped at the roadside and at two hours later. In addition to deeming that, we're going to make it easier for the state to prosecute, because the person who administered the device doesn't have to actually be there in court to file a piece of paper.

So already there are shortcuts being put forward, where already the accused is not starting out with a level playing field; already there are all these legal presumptions and shortcuts. But because Parliament has seen fit to stack the cards against the accused to some extent, by putting legal presumptions against the individual, by shortcuts, by not having witnesses and by not having the accusers before the accused so he or she can cross-examine—but rather a piece of paper—Parliament has to acknowledge this.

• 1225

Parliament has to give some ability to an accused person to defend himself or herself. One of the ways to do that is to raise evidence to show that some of those scientific presumptions are not valid, let's say, in my case because I didn't have that much alcohol or because of my particular metabolism or because at the time I had my last drink and at the time I drove the car I was not over a particular level.

Now, if it's a borderline case, these defences may be persuasive to a court, but if we're talking about situations where we're at 180 milligrams or 200 milligrams, where we're in those kinds of situations, and the guy says he only had two beers, there's a huge credibility difference. In those kinds of cases, it's really up to the judge to say, “I don't believe your story.”

Mr. Hal Pruden: If I may, I will also add something. In response to the area of simply accepting the reading that is given on the evidential breath-testing device, which is the approved instrument, there have been witnesses who have said that if you really want to go there, Parliament could decriminalize paragraph 253(b), the offence of driving in excess of 80 milligrams.

You could take it out of the Criminal Code and make it purely administrative so that it's absolute liability: if the person blows at this particular level, he or she is committing an offence for which he or she will receive some administrative—possibly provincial—licensing sanction, but it won't be a Criminal Code offence if we're just strictly going with the reading and they don't have the opportunity to speak in court.

But I believe it was Mr. Neville from the Criminal Lawyers' Association of Ontario who was saying that in criminal law—and impaired driving is part of our criminal law—the accused does have the opportunity to speak and to be heard, so if we want to take that away, we should then de-criminalize the offence and leave it strictly as an administrative offence rather than a criminal one.

The Chair: Thank you. Perhaps we can come back to this.

Mr. Brien.

[Translation]

Mr. Pierre Brien: I would like to come back to something that greatly concerns me. Let us say that I am drunk, that I hit someone and that that person is injured; I have committed a crime under section 255(2) and I am liable to be sentenced to a maximum of 10 years in prison.

If I am impaired and I hit someone and the person dies, then under section 255(3), I am liable to be imprisoned for up to 14 years.

If I hit someone and flee the scene of the accident, I am guilty, under section 252(1), of fleeing the scene of an accident and I could be sentenced to a maximum of five years in prison.

Obviously, I could be accused of impaired driving, but in practice, that is virtually impossible to prove if the driver has fled the scene of the accident.

In your opinion, are there problems with insufficiently severe penalties for crimes covered by the Criminal Code?

[English]

Mr. Hal Pruden: I should point out first that after 1985 the provision in section 252 was amended by Parliament to make it a maximum of five years. It had been a two-year maximum. So Parliament has taken one step already, in 1994, and it certainly could take another step to make this lengthier, if Parliament chooses to do so.

Having said that, I want to go back to your example and say that if the person who fled the scene is actually captured by police—and there are many occasions when they are never captured—the police could investigate, and if they can bring proof that the person was driving while impaired, the person can be convicted of that offence and, under section 252, of the offence of failing to stop at the scene of the accident. They would have two convictions for the action that they took.

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In sentencing, the judge can take into account that they have these two convictions, one for impaired driving and one for leaving the scene of the accident. What the judge is not entitled to do when a person is convicted only for leaving the scene of the accident is to say that even though the Crown couldn't prove that, he's going to suspect it and is going to give the person a sentence that is punishing him for something that the judge only suspects. The judge can punish only for what the Crown can prove.

[Translation]

Mr. Pierre Brien: Let us come back to what you have just said. There are several presumed cases of impaired driving that have received a lot of media coverage. Crown prosecutors say that these cases are very difficult to prove. You lose track of the person. Even if you retrace what the person did during the 24 hours preceding the accident, the link between the consumption of alcohol and the alcohol level at the time of the accident is very difficult to prove.

People aren't ultra-rational and they don't always have the Criminal Code in their heads, but there is clearly an incentive to flee the scene of an accident because it isn't considered to be a serious enough crime. There hasn't been much prevention done either, to explain to people the seriousness and the consequences of fleeing the scene of an accident. We have tightened up the Criminal Code provisions regarding driving while impaired. People know that it is a criminal offence and that it is serious, but as far as fleeing the scene of an accident... this crime might be explained by psychological factors, etc. It seems to me that there is a problem there. How should we change this clause so as to provide for heavier sentences in the cases of people fleeing the scene of an accident?

[English]

Mr. Hal Pruden: Certainly it's open to Parliament to take another step beyond what was taken in 1994, when Parliament changed the maximum penalty from two years to five years. Another step could be taken if Parliament wishes to do that.

However, to go back to your comment that some people might be influenced by a higher penalty in regard to whether to leave the scene or not, I don't know, personally, whether this is what motivates people. I would have thought that people simply want to escape all liability when they flee the scene, that they don't nicely measure whether it's two years or five years or more.

I don't know whether making it a harsher penalty would have a huge influence, but I'm certainly not suggesting that's a reason not to do it if Parliament wishes to do it.

[Translation]

Mr. Pierre Brien: I don't know if you were here this morning, when witnesses talked about units that prevent one from starting his or her car. You must give a sample of your breath in order to be able to start your vehicle. These units are presently being used in Quebec and in Alberta. In your opinion, would it be possible to include this somewhere in the Criminal Code or is this something that comes solely under the jurisdiction of the provinces? Is there room, within the Criminal Code, to set out a compulsory system? Let us take the example of repeat offenders, of people who are at their second infraction. Should that come under the Criminal Code or under provincial law, in your opinion?

[English]

Mr. Donald Piragoff: Whether it's in the code or whether it's being done now at the provincial level, in the end it will be done by the provinces, because they have to administer it. If you put it in the Criminal Code and say that it “shall” be done, then it is a question for the provinces as to whether they have the resources and the willingness to implement it. Some provinces, like Quebec and Alberta, as you've mentioned, have chosen to implement it under the existing Criminal Code provisions: that in situations where repeat offenders have been convicted, as part of their punishment and as part of their conditions of probation, one of those conditions of probation is that an interlock device be attached to their car.

The interlock device scheme can work under the existing Criminal Code provision. The Criminal Code could make reference to interlock devices, but in the end it comes down to a question of whether or not the particular province has the ability and the means to implement it.

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For this type of measure to be implemented by the federal government, it would have to be done in consultation with the provinces, who would basically bear the brunt of the financial costs of purchases of such devices and of implementation. Right now, it's at a province-by-province level. The provinces are able to do it within the existing framework of the Criminal Code.

If we went to a federal scheme, like we have for the approval of breath-testing devices, we would also then have to start approving these interlock devices. We would have to test them to make sure that they are adequate and to make sure that they cannot be fooled around with, that they're foolproof. We would have to make sure that they are accurate, that if they are to read a zero registration they actually do read zero. We would then have to impose certain quality standards and certain testing. It could be done, but on the other hand, another option could be to encourage the other provinces that are not using the interlock device to consider using them as part of a sentencing option, like the couple of provinces that are using them.

Mr. Hal Pruden: If I may, I'll add to that reply. The Canadian Council of Motor Transport Administrators appeared as a witness before the committee. The administrators mentioned that there exists a strategy to reduce impaired driving. In 1990, the council was mandated by the transport and road safety ministers to do the work on this strategy, and the mandate was renewed in 1995.

Amongst the work of the organization, which includes road safety organizations, police and the provincial and federal representatives from transport, they have on their list legislative ideas that all jurisdictions are encouraged to implement. As well, they have educational objectives and communication objectives, which all jurisdictions are encouraged to implement, and they have a list of other elements. Amongst the other things that all jurisdictions are being encouraged to implement is this idea of ignition interlock. The federal government, through Transport Canada, does participate in this joint initiative to try to move the provinces towards the use of ignition interlocks.

The Chair: Thank you, Mr. Brien. Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman. I have a couple of points, not in the form of questions, more in the form of statements. Sometimes I think I'm sitting at the wrong place at the table. I should be down at the end.

I've heard four or five times about the fact that fatalities have gone down in accidents caused by drunk driving. I don't think we can lean on that crutch. Fatalities in all emergency medical services have gone down because of our improved paramedical system. I think that's a crutch we're using and I don't think we should be.

Secondly, Mr. Perigoff, you unwittingly, I think, put your finger on the whole problem. You mentioned that in a certain jurisdiction the minimum penalty was 48 hours in jail and that as a result the courts got clogged because the people who were charged hired lawyers and fought the charges as if they were robbery charges. Right! Until you do something that inconveniences them or gets their attention, it's treated as a minor item. It's not treated like a robbery. In effect, it's worse than a robbery, unless you have a gun in the commission of the offence of robbery, because drunk driving kills people, injures people, maims people and inconveniences other people.

I would make it 72 hours or three days rather than 48 hours. If you're caught drunk driving on Friday night, you come up before the judge on Saturday morning and he says, “Three days.” Why isn't daddy there to take the kids to hockey practice on Saturday? He's in jail. Why isn't your husband at church on Sunday? He's in jail. Why isn't our sales manager at work on Monday? He's in jail. That has an effect. As you say, they'll fight it like they would a robbery charge, and that's what we want. Everyone is taking it too lightly.

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We've talked here about various kinds of sentencing, about big fines. Let's get one thing straight. The average impaired driver is not the average robber who hangs around the corner—the only time he ever gets in a car is a stolen car. The average drunk driver looks like us. He wears a suit—or if it's a woman, a Dior dress. That's who your average drunk driver is. Somehow you have to get their attention.

Unwittingly, I think, you told us how you get their attention. If the price we have to pay for getting their attention is to enlarge our courts and provide more judges at a certain monetary cost, so be it. If that's the answer, that's fine. Let's not play around with it. Let's do something that gets their attention. You said that it gets their attention when we given them two days in jail—almost automatically.

The Chair: Thank you. Mr. Perigoff or Mr. Pruden?

Mr. Hal Pruden: Can I respond to one aspect of the comment? It relates to the improvement in the driver fatality rate. It is very true that in general fatalities from accidents have gone down.

However, the Traffic Injury Research Foundation maintains the driver fatality database for all jurisdictions in Canada and has since 1987. Their most recent report was for 1996. They observed that the percentage of people over 80 years old who were drivers and who were in fatal accidents decreased as a percentage of the total fatally injured drivers. Their rate of accidents was going down more quickly than that of the general population for fatally injured drivers. This indicates that something's going on beyond simple vehicle design improvement, road design improvement and medical improvements, which are all neutral with respect to people who drove while impaired and were killed and people who drove non-impaired and were killed.

What is suggested is that countermeasures towards alcohol and driving have had an impact that explains this percentage decrease. I believe it went from 43% in 1987 to 34.9% in 1996 for people who were over 80 years of age. So there is an improvement there that is really not simply better doctors.

Mr. Ivan Grose: Yes, but I hope you're not recommending that we hang around and wait until it goes to 0%, because it's still too tragically high. I'll agree with you. You say you have the figures. I'll go along with that. I'm gratified to hear that, but I still think it doesn't preclude us from taking further action now. We could wait 50 years before it gets to an almost negligible figure.

Mr. Hal Pruden: I agree with you 100% on that comment. I certainly hope that no one will interpret what I said as suggesting that the Criminal Code shouldn't do its part. It absolutely has to do its part—recognizing that there's a whole bunch of other things that have to happen as well.

Mr. Ivan Grose: I realize that isn't what you meant, but often when you read the words later on.... I wanted to make sure that wasn't what you were saying. I knew that wasn't what you were saying.

On the other points, I think they're worthy of consideration. I've heard about how when you make the penalty this, that or the other thing, they fight it like it's a capital punishment sentence. I didn't pay much attention until you said it today. I thought, gee, why isn't it treated like a robbery initially? Because no one pays that much attention to it at the moment.

If you get caught for impaired driving, it's a little more embarrassing than it used to be, but not an awful lot. It used to be a fun thing. You would admit it in the morning. You would say, “I don't know how I got the car home last night.” You don't hear that any more.

Still, if you get caught for impaired driving, it's not a disgrace, really. Let's make it a disgrace. Possibly that two-day sentence, which means that for two days you're in the local tank, not in the provincial or state jail, where some strange people move through one of those tanks in 48 hours.... It could be a great experience. If they're going to fight that, so be it.

The Chair: Thank you. Mr. Piragoff, do you have a comment?

Mr. Donald Piragoff: Thank you. Yes, I want to address this question.

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I guess your statement is based on the educative impact of minimum 48- to 72-hour jail sentences. What happened in a few states in the U.S. was that the 48-hour minimum jail sentence did not lead to more convictions. Your presumption is that people are going to go to jail. What happened is that there were less convictions. The conviction rate went down because more charges were fought, more loopholes were found and judges were reluctant to send people away for 48 hours.

Then, I think, there's another thing, which we're missing here. There are two issues. One is the educative impact, and that's important. You can't just have an educative impact for a short period of time. This happens every year at Christmas. Just before Christmas, we have an educative impact, when we say, “don't go out because the RIDE program is out”, whatever it's called in other provinces. Suddenly people pay attention, because the fear of getting caught has suddenly increased.

Whether, statistically, there really is a big chance of getting caught, there is the fear of getting caught, and what statistics and psychologists have shown is that the fear of getting caught, of being apprehended and charged, is a bigger deterrent than the ultimate punishment. If you don't think you're ever going to get caught, it doesn't matter what the punishment is.

For example, we have severe punishment for some offences like murder, but there are people who murder because they think they're not going to get caught. They think they're going to plan the perfect murder, they're going to kill the person and they're going to get away.

So it doesn't matter what the punishment is; it's the question of the fear of getting caught, the fear of apprehension. That's why the RIDE program and these other programs are very important. Sometimes they're more important than what the penalty is: if you think you're going to get caught, that you're not going to make it from point A to point B on a particular night, you won't get behind the wheel of the car, but if you think you can safely get from point A to point B, you'll take the chance.

There's another question with regard to education. I don't think most Canadians know what the penalties are. The most severe penalty is the loss of your driver's licence for a year. It's especially severe if you're a taxi driver or a truck driver, because that's a loss of livelihood. How many people know how many drinks it takes them to get up to .08? One glass of wine, two glasses of wine, three glasses of wine, four glasses of wine...? Do people know when they should stop?

There's a lot that could be done in the long term in terms of education so that people know before they get behind the wheel that they shouldn't be there because they've had three drinks in the last hour and a half and they shouldn't go—as opposed to having had one beer. You shouldn't be behind the wheel if you've had one beer, but the person may say, “I've had one beer. I know I'm within the limit. I feel fine. I'll take the chance.” I'm not saying that they should do that. There should be no drinking and driving. But people don't even know what their limits are.

What can provincial and federal governments do? That's the question I think we're asking with respect to education. How do you get a message across to people that has a practical impact on them? I think that's the real question that has been stumping legislators for years. That's the real fundamental issue that this committee is faced with: what can we do to have a long-term impact and not just simply a short-term blip?

Mr. Ivan Grose: Mr. Chairman, I have one brief rejoinder.

I agree with you about the RIDE programs. They had been working. I hate to tell you this, but last year, last festive season, in the Metro Toronto area, due to cutbacks in the budgets for police forces and so on, there were many fewer stops made by the spot-check people than in previous years. The charges were up, so obviously the fear of it is somehow lessening. We're going to have to come up with a new fear, I guess. It's all part of a complex problem.

The Chair: Thank you, Mr. Grose.

Mr. Harris.

Mr. Richard Harris: Thank you, Mr. Chairman.

I agree with some of your observations. Certainly no one would disagree that a greatly enhanced education program, nationwide, in cooperation with the provinces, would be a great idea. Having more people know about the fact that you shouldn't drive after you've been drinking is of course valuable. If there were ever a case for putting more funding into policing, the statistics about impaired driving certainly support that case.

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As well, if there were ever a case to show the effectiveness of deterrents, impaired driving would go right to the top of the list. Even though the numbers we currently have are still totally unacceptable, I really think that deterrents have played a huge role in the progress that's been made over the last 20 years. At one time, impaired driving statistics were simply out of control. Even though one death or injury is simply unacceptable, 1,400 deaths and the 50,000-plus injuries are far above acceptable. I can't even use those numbers in the proper terms because they just simply shouldn't be there, period.

If the deterrents we've put in until now have shown that we can make improvements in the statistics, I think that if we were to enhance those deterrents, perhaps we just might be able to improve the statistics even more.

There will be those who argue against that and that's fine.

Mr. Grose pointed out to me and to the prior witnesses that the hard-core drinker repeat offender—we heard testimony—is responsible for 60% of the carnage and the costs incurred due to impaired driving. That's not to say that someone who isn't a hard-core drinker but drinks and drives is any better, but the fact is, this small group is causing most of the havoc. They don't respect licence suspensions and, quite frankly, they don't respect the laws of or the safety of society.

If these hard-core repeat offenders, these drinkers and drivers, simply won't stop, shouldn't we just take them out of society in order to protect our society?

And I don't mean kill them.

Some hon. members: Oh, oh.

Mr. Richard Harris: Mind you, in some cases....

Shouldn't we just remove them? If they cannot conduct their lives in a way that's not a threat to every other single person in society, shouldn't we just remove them for the longest possible time we can in order to protect our society, for the common good of it?

Mr. Hal Pruden: Again, Mr. Neville, from the Criminal Lawyers' Association of Ontario, appeared before the committee as a witness and indicated in his remarks, in response to a question, that for some hard-core drinking drivers, separation from the society for a long period of time is, at the end of the day, all that you're left with. They won't recognize the fact that they have a drinking problem, perhaps they won't do the treatment and they won't respond to licence sanctions, so that's all you're left with at the end of the day.

However, Dr. Mann, from what used to be called Addiction Research Foundation, was also a witness before the committee, and he said the studies indicate that amongst various countermeasures for drinking and driving, the combination of licence suspensions with treatment seemed to be the most effective in addressing the hard-core drinking drivers—as much as it can be.

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Mr. Richard Harris: What about the idea of giving them a sentence of ten years in prison, with mandatory successful completion of a rehabilitation program before any consideration for parole? In other words, if you won't or can't—or both—go through this rehabilitation program and get yourself dried out, you're simply going to spend ten years in jail. If you're willing to do this.... It's a pretty good incentive, I would think, considering that for ten years you'd probably serve what nowadays? Four...? If you don't want to go through the program, you spend an extra six years in jail. That's a pretty good incentive.

Mr. Donald Piragoff: I think you've raised a good point about the whole question of punishment and deterrence. It's the point I had wanted to raise before, and that is, who are we actually trying to deter in terms of the public? Is it the general public? To some extent, the general public doesn't even know what the penalties are. If they knew what the penalties were, they might be deterred. As was indicated, it's the normal, ordinary citizen, to a large extent, who is the first-time problem. If ordinary citizens knew what the existing penalties were or if they had the fear of apprehension, they might be deterred, and of course right now they don't know.

Mr. Richard Harris: I'm not so sure I can agree with you. We've done some surveys across the country since 1995 and I can guarantee you that if you went out on Sparks Street now, found ten people who don't drink and drive any more and asked them why they don't, the number one answer would be that they don't want to get caught, that they don't want to lose their licences, that they don't want to pay the fines. I don't think there are many people out there who don't know that it's a serious offence to drink and drive.

Mr. Donald Piragoff: Many don't know exactly what the consequences are. You indicated that people who had already been charged and convicted know what the consequences are. They don't want to again lose their licence for another year.

The more difficult one is what you put your finger on: the hard-core drinking drivers who are causing most of the carnage on the highway. It's not the people who are at .08 or at .05. They should not be on the road at .08 and they should not be on the road at .05, but they're not the ones who are causing, as you said, 60% of the carnage on the road. The real question is, are there measures that can be used and directed at the hard core? Some of the witnesses, I believe, have talked about tiered sentencing, about how if you're at a higher level you should have a different penalty scheme. You've talked about the possibility of more restricted parole. These are all things that could be looked at. I think the government would be willing to hear what the committee has to say in terms of possible recommendations to try to deal with the hard core, because I think the experts say that this hard core is the real problem on the roads.

There are provisions in the Criminal Code right now for dangerous offenders. People who are dangerous offenders can be given long or indeterminate sentences. I don't know if those provisions have ever been invoked by the provinces in an impaired driving case. They've been used in personal injury cases, in assaults and for sexual violence, etc. I don't know if they've ever been used at the provincial level. I think the provisions might be applicable. We'd have to check to make sure whether they are.

One of the issues that I think the committee could look at specifically is the question of how you deal with the hard core. What kind of measures can be used to deter? If those measures do not deter, then as a last resort, it really comes down to incapacitation, that is, if you continue to be a danger on the road to other Canadians, how can we incapacitate you? I think that's a valid question. It's a question that is very relevant to addressing the kernel of the problem, which is that hard core.

When we talk about measures for deterrence and measures against impaired driving, we should keep in mind that there really are two classes of drivers out there. There's the ordinary citizen who once in a while has too many glasses of wine when he or she is out for dinner and there's the person who is the hard-core problem. When we think about deterrents and law enforcement, we should keep these two different people in mind. Some measures might be appropriate for some and not for others.

One option is to toughen up the sentencing scheme, the parole scheme, for these hard-core people. Then the question is whether any adjustments are required for the existing scheme. For example, the current penalty is $300, minimum. That's from 1985. That could be increased now, given inflation.

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There are little things that can be done, but the real question is, how do you stop the hard core? I think that's where the government would really appreciate any recommendations from the committee.

Mr. Richard Harris: I thank you for that response, and I think we all agree that the hard-core drinker who's causing most of the problem should be a prime target.

As well, I think that as the federal government we want to take some leadership. We can take leadership by bringing in legislation that will basically give the provinces all the tools they need to operate within their jurisdiction and to try to have the toughest impaired-driving laws in Canada and, indeed, maybe in North America.

As you know, it's going to be a combination of things, but I certainly believe that deterrence does play a huge role. There are people who are going to think they can get away with it anyway, but that threat of something more than a slap on the wrist has to be there if you're going to ever hope to influence them. A $300 fine and a year's licence suspension is, in my opinion, not sufficient for someone who's been arrested and charged for the first time. Remember that statistic: that person could have committed an offence anywhere from 200 to 2,000 times before he got caught. First-time convicted is not first-time offending, and we have to realize that. It's just the first time they got caught.

Whatever we do, let's make it the worst experience of their lives when they walk into court that day and it costs them big dollars and a whole lot of embarrassment. That's what I hope comes out of all this.

The Chair: Are there any comments before I go to the next questioner?

Mr. John McKay.

Mr. John McKay: I want to pick up on Mr. Brien's line of questioning with respect to the interlock device. I've listened to the exchange and I listened to the exchange between Mr. Marples and Mr. DeVillers earlier in the morning, and I'm still at a bit of a loss here as to whether, as the TIRF people believe, there needs to be an amendment to the Criminal Code to allow judges to order installation of these devices as a condition of probation.

I'm quite confused, because apparently Alberta orders these things and Quebec orders these things and there's no amendment to the Criminal Code. Do we or don't we need to amend the Criminal Code?

Mr. Hal Pruden: Certainly they can be introduced and used by the provinces. In fact, the CCMTA encourages all provinces to go ahead and do that. If all provinces did it, it would be national and we would see them across the country. It's not a condition precedent that the code be amended before the provinces begin to implement ignition interlock.

Mr. John McKay: So a judge in Ontario could order one today, could he?

Mr. Hal Pruden: Yes, dependent, I suppose, upon the availability of the machine from a manufacturer and dependent on whether the manufacturer will give you a commercial market model or the government model that they make available to Alberta and Quebec. I should point out that—

Mr. John McKay: Does this go on an approved list of devices?

Mr. Hal Pruden: No. At the moment, the Criminal Code has no definition of an approved ignition interlock. Therefore, the alcohol-test committee of the Canadian Society of Forensic Science has not been asked by the department to examine these to make sure that they meet both the manufacturer's claims and a set of standards that the alcohol-test committee has come up with; there is no such set of standards because there is no definition at the moment.

Mr. John McKay: Should that be a recommendation, then?

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Mr. Hal Pruden: I've mentioned that it could be done in the Criminal Code. I believe Mr. Piragoff also said that it could be done in the Criminal Code. Knowing that some provinces have already begun that, knowing that the strategy to reduce impaired driving encourages all provinces to move that way, the question is whether the committee feels it's necessary to do that, whether you want to do that or need to do that.

Mr. John McKay: There's a bit of a chicken-and-egg problem, a cart-before-the-horse problem. The question is whether there will be an assumption of leadership on the part of the federal government, and all that sort of stuff.... The only instrument the federal government has to work with is this Criminal Code, which is a pretty blunt instrument.

But having said that, you have two—how shall we say it?—distinct societies already on board, two of the most distinct societies that we have in our country, so I'm still curious as to whether we need an amendment to go there. If I'm a judge sitting in Ontario and I think this individual should have this device installed in his car, what's stopping me from saying that the individual has to do it?

Mr. Hal Pruden: I don't think there's anything that stops a judge from putting that in a probation order at the present time, other than the judge's concern that the individual may not recognize that he has a problem or that the individual may simply say, “Well, then, I'm not going to get a car. I'm not going to drive. I'll just wait until my suspension period is up—

Mr. John McKay: Yes, I see.

Mr. Hal Pruden: —and then get my licence reinstated.”

We might want to bear in mind that the provinces will certainly have.... Maybe the provinces won't have concerns, but they will have some obligations. If the Criminal Code says they have to do this, it means that they will have costs for supervising, for setting up the program and for monitoring within the provincial level—

Mr. John McKay: But from Mr. Marples' testimony, I thought that the report went to him or to his company and that he didn't necessarily report it to government authorities, however government authorities might be defined, whether they're provincial or federal. I thought he reported to an insurance company.

Mr. Hal Pruden: My understanding was that it was made available to the provincial authorities when there was a breach, let's say—

Mr. John McKay: Yes.

Mr. Hal Pruden: —so they would then have to monitor the information coming from the company to see if there was a breach and to see whether the individual should perhaps have that break revoked and not be able to do any driving at all because he's not using their ignition interlock properly.

Mr. John McKay: You're following the bouncing ball. The company reports the information about the breach and then it's up to.... I assume that is reported to a police station. Is that where it goes or is that—

Mr. Hal Pruden: It may simply go to licensing. My understanding was that it would go to the licensing administrators within the provincial government if the person is “breaching” their interlock system by trying to circumvent it or if the person does something wrong.

Mr. John McKay: So that's sitting on somebody's desk. What happens after that?

Mr. Hal Pruden: My understanding is that they would then have to make decisions about what to do next, whether it's counselling the individual or whether it's taking away this break of having an interlock and driving and saying that the individual just won't be driving any more because they're not going to let that individual drive, even with an interlock.

Mr. John McKay: It would be a total licence suspension.

Mr. Hal Pruden: That's right. The manufacturers mentioned that it was an intermediary sort of system in many U.S. states, and I take it that the same is done in Alberta.

I could point to one example in the Criminal Code where we did have something that impacted upon the provinces: the curative treatment discharge under subsection 255(5), where it was differentially proclaimed.

In other words, if the province said it was ready, with the resources to treat people and to have perhaps residential treatment, the province would then indicate to the federal government that it wants the subsection proclaimed into force in that province. Well, we have a situation where half the provinces have it and half the provinces don't. Parliament could consider passing a similar kind of provision and proclaiming it based on whether the province is ready for this kind of system or not. But then again, you could have a situation where some provinces, perhaps, years later, might not have adopted this system.

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Mr. John McKay: But it would at least be a signal from the federal government that it sees this as a significant device in addressing what appears to be the most problematic issue, namely, the repeat drinking driver.

Mr. Hal Pruden: The question then becomes, is it somehow linked to the prohibition from driving anywhere in Canada that the Criminal Code mandates or is it simply left to the provinces to decide how they wish to deal with it under their licence suspension legislation?

Mr. John McKay: How much time do I have left?

The Chair: Go ahead.

Mr. John McKay: The second area of questioning has to do with the time for taking the breath sample. The MADD people and several others urged increases from three to four hours. It's not clear in my mind what the implications of doing that would be. My initial reaction was to say that it just creates a longer babysitting period for the police and adds to the time involved. What would be the other implications if we were to go that route?

Mr. Donald Piragoff: The current two-hour limitation is not a random choice. It's based on scientific evidence, as I indicated earlier this afternoon. The code provisions are based on a number of legal presumptions—shortcuts—but there is a scientific foundation for the shortcuts. One of the presumptions is that a breath sample taken within two hours, at 2 o'clock, say, shall be deemed to be what the level was at the time of driving.

Now, in that interim two hours, the level may have actually gone up or gone down, but for the purposes of the law, the law will deem the level to be the same at the two times. The reason is that although there are individual differences, there is a general rate of metabolism by the human body as to how much alcohol and the rate of alcohol that can be absorbed and how much is eliminated through normal bodily discharge functions, like breathing, urination, etc.

Mr. John McKay: So we basically have a scientific consensus at the two-hour point. Do we have a scientific consensus at a three-hour point or a four-hour point?

Mr. Donald Piragoff: If you start going beyond the two-hour point, many of the scientists say, they then cannot safely say that the scientific foundation is there for the presumption.

Mr. John McKay: Presumption of impairment?

Mr. Donald Piragoff: That's right.

But there are two things that operate with the two-hour limit in the code: one is the scientific presumption and the other is simply a legal ability for the state or the police officer to demand a sample. If the police officer takes a sample after the two-hour period, the sample can still be used in evidence. It's just that you then have to actually get an expert to testify and extrapolate backwards in time as to what the content was.

Right now there are two things tied to that two hours: one is the legal presumption, the evidentiary presumption, and the other is the ability of the police officer to demand a sample as an investigative technique.

You could “de-link” those two, for example. If police officers are having trouble meeting the two-hour time period—and some say they are—to at least make the demand, you could extend the two-hour time period for making the demand to three hours or four hours without changing the legal presumption. So if the demand is made within two hours, then you get the legal presumption. If the demand is made outside of two hours, but within, say, a certain period of time, you can still make a legal demand. You can get the sample, but you don't get the benefit of the legal presumption.

Right now, both are tied together. The one area where there is a de-linking is, of course, in blood samples after the four-hour period, because once you get blood, you always must have an expert witness to extrapolate back.

Mr. John McKay: So the de-linkage of the presumption might be an attractive possibility to address the problem that some of the police officers were working on.

• 1315

Mr. Donald Piragoff: You could de-link the investigative power from the evidentiary presumption. You could still keep it at two hours for the presumption, but you could give the police a wider window of opportunity in which to actually make a demand. That would be a possibility. I'm not sure what all the implications of that would be; you'd have to investigate it with the police and the prosecutors to see if it would cause any practical problems for a trial. Off the top of my head, I can't think of any, but we'd have to look at that.

Mr. John McKay: They're just going to have to prove things in the ordinary course. That's what it boils down to.

Mr. Donald Piragoff: Yes.

Mr. John McKay: Do I have any more time?

The Chair: Yes, go ahead.

Mr. John McKay: Oh, it's open season, is it?

With regard to .08, you've been here and have heard the arguments for lowering it to .05 or .02—and some want .00. I suppose this calls into question the scientific underpinnings of the over-.08 charge. Aside from all of the implications that it would have for the court system and the enthusiasm with which the accused might fight readings of .02 or .00 or .05, putting those issues aside, what would be the implications of lowering it to .05, let's say? Would we have to go through a whole building of scientific consensus to say that over .05 is in fact impairment?

Mr. Hal Pruden: I'm not sure you would have consensus. Doug Lucas, who was here with the alcohol-test committee from the Canadian Society of Forensic Science, indicated that in the 1950s studies had been done in a laboratory setting, not in an actual setting, and it was also done with simulated driving experience, I think, in the United States. I believe he said that it was also in the 1950s that the RCMP here in Ottawa did actual road tests with different BAC levels to see where impairment would occur. In the late 1950s or early 1960s, Professor Borkenstein, I believe, did a test—it was called the Grand Rapids study—out of Michigan in which they looked at BAC levels and the crash risk over a very large population of both drinking drivers and non-drinking drivers.

My understanding is that the Traffic Injury Research Foundation reported to Justice Canada in the 1980s and again in the early 1990s, saying that the science that was used there was valid and that it indicates that for the general population of drivers, one can say that at the over-80-milligrams level you can isolate alcohol as a factor that influences crash risk and impairment, in isolation from such factors as age, driving experience or experience with drinking alcohol.

So if you look at the Addiction Research Foundation study related to the over-80-milligrams issue that came out from Transport Canada in 1998, you'll note that in some of the graphs it's quite clear that age is a factor: at a lower BAC at a younger age, you're going to see a crash risk that is quite high compared to that of some of the older, more experienced drivers. It might be more difficult to say that for the general population—if we're not factoring out age—at 50 milligrams, everyone is going to be experiencing a much higher crash risk and a greater impairment. It would probably be difficult for the scientists to say that's true.

Now, having said all of that—

Mr. John McKay: Sorry. Just so I understand you, you're saying the older the person, the greater the impairment at the lower rate of alcohol.

Mr. Hal Pruden: No. The younger people have greater impairment at a lower rate of alcohol.

Mr. John McKay: Younger people impair more quickly.

Mr. Hal Pruden: Yes, they tend to do that. Also, drivers with perhaps less driving experience or people with less drinking experience tend to show the crash risk or impairment at lower levels than the general population does. But once you hit over 80 milligrams, which is our criminal level, then you can say that the general population of drivers does show risk of crash and impairment.

• 1320

However, there are going to be individual variations. For example, people in the hard core very often don't exhibit symptoms of impairment until a very high level because of tolerance to alcohol and experience with alcohol. But keep in mind that we have in our Criminal Code a section that says, under paragraph 253(a), if you drive while impaired, regardless of what your BAC might be—even if it's 40 or 50 milligrams—you will be convicted under paragraph 253(a). At the same time, it's no excuse for me to come in and say that my reading is 120 milligrams but I'm not impaired because my tolerance for alcohol is higher or whatever. Paragraph 253(b) is the section that says if you're over—

Mr. John McKay: You're over.

Mr. Hal Pruden: —you're over, and it's an offence.

Mr. John McKay: Is it just laziness on the part of the police officers with respect to not charging people at .05 or something of that nature? Is it that they've made their own observations with respect to the level of impairment and they're satisfied that the person's impaired, but—surprise, surprise—the person only blows over .05 or .02 or whatever. You don't hear too much about people prosecuting at that level.

Mr. Hal Pruden: That's the thing. It may be that the symptoms are very strong and that they simply charge under paragraph 253(a) because it's so strong. We don't—

Mr. John McKay: I know they're able to do it, but you don't hear much about it being done.

Mr. Hal Pruden: No, I think that's true. The focus of the 1997 police survey really was on the police experience with the paragraph 253(b) over-80-milligrams charges. That report didn't address paragraph 253(a) charges and how long it takes to prosecute and investigate that charge as opposed to doing the same for paragraph 253(b).

What I'm saying is that if the symptoms of impairment are very strong, it's possible for the police simply to proceed on that basis, and we would never know what the BAC was. It may be that the person was only at 50 milligrams, but had strong signs of impairment.

Mr. John McKay: So certainly the code is there to do it. It's just not being done.

Mr. Hal Pruden: No. Having said that, it may be that post-1969, when we introduced our per se offence at over 80 milligrams, judges, police, prosecutors and defence lawyers have tended to grow up with a system where we are enamoured of the science and the breath-testing technology. We want it. The judges are curious about the BAC reading. Whereas, if police were perhaps able to focus on the impairment symptoms, we might find that judges would be quite willing to convict.

In its presentation at the committee, the Canadian Association of Chiefs of Police indicated that one of the things it is interested in looking at—from the 1997 police survey—is the idea of using videotape to show people exhibiting their symptoms of impairment. If they did that, it might convince the judge by actually showing what the person was like as opposed to the judge having to look at the science—

Mr. John McKay: Yes.

Mr. Hal Pruden: —because as soon as you get breath evidence in a trial, you're going to extend the length of the trial.

Mr. John McKay: We have almost an irony running through the whole system, and that is, because we've set it at .08, we have in effect determined that evidence of impairment is more difficult if you can't have evidence of .08 because of the continual linkage of the two charges.

Mr. Hal Pruden: I would say that it depends. You're right in that you will very often see the two charges on the information the police lay; they'll charge the person with being impaired under paragraph 253(a) and with being over 80 milligrams. In some cases, the judges are willing to find the person guilty of both of those charges on the evidence presented by Crown, and of course they are only able to convict on one of the two charges because they arose from the same incident and effectively address the same behaviour. Then it's up to the Crown to decide whether they want the conviction entered on the impaired driving or on the over-80-milligrams driving.

Mr. John McKay: I have one final question, Mr. Chair, on the issue of tiering. On the face of it, there's a certain element of attractiveness to it: if you're over, at double .08, at .16 or .24 or whatever you're at, you'll get a more severe sentence. That's been urged on us by quite a number of presenters.

• 1325

On the other hand, I would work on the assumption that in any event most judges take that into consideration in sentencing. What's your reaction to the urgings to in effect tier the BAC levels on points of sentence as opposed to simply leaving it as it is and leaving it to the judge's discretion?

Mr. Donald Piragoff: It's true that some judges do take BAC levels into account in determining their sentence. The higher the BAC level is, they will make a comment on it in their sentencing and they may up the sentence, but it's a discretion. One option could be that the code could actually give the judges explicit power to do that. You don't even have to say in the code that the judge “shall” do it; if you say the judge “may” do it, that's already a strong indication to judges that it's appropriate to do that.

Mr. John McKay: We do that with certain elements in the code when we say, “you may take into consideration” blah-blah-blah.

Mr. Donald Piragoff: That's right.

Mr. John McKay: Is that a useful thing to say in the code?

Mr. Donald Piragoff: That is one thing that could be done. That's one way of—

Mr. John McKay: It's a sort of sentencing guideline.

Mr. Donald Piragoff: That's right. It's consent: the judge “may” take into account the level of the BAC in determining sentence. By saying “may” rather than “shall”, you avoid any charter problems, but the message is clear.

The other way, of course, is to be more rigid and to say that there is an actual division of penalty, that anyone who blows over .16, say, gets themselves into a more rigid penalty scheme. That would work. The problem lies with whatever problems you already have now for borderline .08 cases, such as, do you charge at .08 or do you wait until the person blows over 100 milligrams before you charge? Or not? For charges up to .16, this would just duplicate all of those problems you have at .08. It could be done, but then you will just duplicate your borderline problems.

So then it's a question of whether having a rigid system is worth it when you have those practical problems. Or, because you are trying to go after the hard-core person, is it worth trying in order to send that kind of a message? It's a question of how you get the message across, of how you raise the sentence for hard-core people without doing it in such a way that you cause more practical problems for the prosecutor.

Mr. John McKay: So the guidelines option might actually be a useful thing that this committee could recommend.

Mr. Donald Piragoff: Yes.

Mr. John McKay: I have just a final question with respect to the discount that appears to go on. Some witnesses said that no one really cranks these things up until it reaches .10. Intuitively, it sounds correct: the police want to be absolutely certain that they're not going to get into arguments about .08. Is that consistent with your experience? Second, what would be a useful way to say to the judiciary and to the police officers that “.08 means .08”?

Mr. Hal Pruden: Actually, the offence is to be over 80 milligrams, so in theory, it's 81 milligrams.

Mr. John McKay: Yes.

Mr. Hal Pruden: The scientific experts, as I understand it, have indicated that there could be, in all of the technology, the most modern being, I think, infrared, the more recent, which was electrochemical fuel cells, and the older technology, such as the breathalyser, which relies on chemical analysis.... In each of those technologies, scientific experts indicate, one would still find that there is a margin of error, either within the calculations or within the technology, so that one might not feel really safe with a reading of 90 milligrams, let's say, because a reading of 90 might really be a reading of 80—or it could be a reading of 100.

We do have a two-test system in Canada. We don't just take a single test and go to court; we take the lower result of two tests or, if they are the same, we could take the result of either one. In consequence of that, I think, as you say, some of the police forces say that to be certain they'll go with a reading of 90 or 100 and maybe not look at the readings that are lower, although they could. They could take that to court and they might get a conviction on it.

• 1330

That having been said, keep in mind, too, that we've heard that it takes maybe 200 or 2,000—whatever statistic it is—driving trips before we see one charge. Police officers may well ask themselves at the side of the road if they are going to expend their investigative time processing this individual who is at 100 milligrams and who they could take off the road with provincial administrative sanctions, or whether they are just going to proceed with the Criminal Code, which would tie them up for several hours.

It may well be that they're making a calculation that says they'll take this person off the road by administrative sanctions versus the Criminal Code and they'll wait until they get the next person who comes along whose reading is much higher and will deal with that person in that lengthy criminal investigative process.

Mr. John McKay: Or does that make an argument to lower .08 to .07 or .06 and get it much closer to your administrative levels because you know that .06 or .07 is going to be .08 or .09?

Mr. Hal Pruden: But that certainly brings up the question about you criminalizing a whole new group of people amongst our population who are potentially committing a criminal act. Today they aren't, but with a change, they would be committing a criminal act as opposed to being charged under just the administrative act, the provincial sanction. It is a question. I wouldn't say that I could be certain that the police would say, if they have somebody at 60 milligrams, that they would process through the criminal route somebody who blew 70 or 80 milligrams. They may well say that they're still going to wait for the person whose reading is 140 or 150, that they'll spend their time with that person and just use the administrative route for people who blow lower than that.

Mr. John McKay: There's a point about information available to a crown attorney. Is information about administrative licence suspensions available to the Crown at the point of sentencing?

Mr. Hal Pruden: I'm not quite certain what you mean.

Mr. John McKay: If I've had three licence suspensions because I just fell into them and then I get charged criminally and I'm being sentenced, does the Crown have that information?

Mr. Hal Pruden: I think it varies. I'm told that some provinces do track administrative licence suspensions and that other provinces don't at present have a tracking system to track the administrative licence suspensions. If the province has it, certainly it's something one would think that the crown attorney would have, such as, let's say, a printout of the person's driving or criminal record.

Mr. John McKay: Again, is that something that could be usefully recommended? We keep hearing that it takes a lot of incidents to get a charge. Mr. Harris has quite properly pointed out that the first time a person appears in court is not necessarily the first time he or she has been involved in incidents.

Mr. Hal Pruden: Certainly the court could be apprised of that. I'm sure the court would then ask if the person's involvement with police should be taken into account. However, if the person is before the court for the first time, the court could certainly not then treat that person as though he or she had a prior conviction.

Mr. John McKay: I agree with that.

[Translation]

The Chair: Mr. Brien.

Mr. Pierre Brien: I would like a clarification. You alluded to a study carried out at the end of the 1950s and in the early 1960s that served as a reference for setting the limit at .08. Are you saying that there has been no major study since that time to evaluate the standard and determine if it should be changed?

[English]

Mr. Hal Pruden: No. I indicated that in the early 1980s, as well as in the early 1990s, the Traffic Injury Research Foundation looked at the research, the science, that was an underpinning or a foundation for selecting the over-80-milligrams level in our paragraph 253(b) offence in the Criminal Code.

There certainly were studies following those in the early 1950s and early 1960s. As I understand it, the Traffic Injury Research Foundation was saying that there hasn't been a change that tells us we have a different level at which the general population of drivers shows a marked increase in accident risk and a marked impairment. They're saying that it remains at what it was in those earlier studies.

[Translation]

Mr. Pierre Brien: Is the Minister of Justice following what is taking place in various other countries or jurisdictions? It seems to me that the limit in some jurisdictions has been brought down to .05. One of the briefs we have received contains a list of these jurisdictions, and it appears there are quite a few of them. There therefore seems to be a new standard. Are you following these cases or do you have information on the reasoning this standard is based upon?

• 1335

[English]

Mr. Hal Pruden: I think the study you are referring to is the work done by the Addiction Research Foundation for Transport Canada. It came out in 1998. They have a chart within their study that tells us that a number of western countries, primarily, have different blood-alcohol-concentration levels. I know, for example, that amongst these countries would be Scandinavian countries, France and some Australian states. When you look, though, at the kinds of sanctions or penalties that are attached to very low BAC levels, like, for example, at 50 milligrams and over, what you'll find is that they don't have a risk of jail. Typically in these countries, until the person is at a higher level, like over 80 milligrams or even over 100 milligrams.... For example, France, I believe, does have that 50-milligrams level for licence consequences and maybe for fines, but not for jail. That comes in at a higher level. Germany is similar. I believe it's at the 100-milligrams level before they risk going to jail.

Whereas in Canada, when you take into account what many of the provinces have in terms of licence consequences at a low level like 50 milligrams, or like what it is in Saskatchewan, where I believe it's 40 milligrams, and what we have at the federal level, which is a possibility of going to jail once a person is over 80 milligrams, we do not look so dissimilar to these other countries.

[Translation]

Mr. Pierre Brien: The difference is that in their case, even if there are progressive sentences, it is a crime. In France, for example, where the limit is .05, even if there is no provision for imprisonment, it remains that it is a criminal offense, isn't that so?

[English]

Mr. Hal Pruden: It may be an administrative fine in most of those countries. There may be a few of those countries where they might actually have it in their criminal codes. That I can't say for sure, but certainly when you look at the penalties that can be available, they make a distinction between the administrative fine or the administrative licence suspension and sending the person to a period of incarceration.

When you do the comparison to what we have in Canada, one sees that at 50 or 60 milligrams, let's say, in a certain province you may have a licence consequence, but it's not until you're over 80 milligrams that you risk going to jail, which is the same as it is in many of these countries that are said to have a lower limit than Canada has.

[Translation]

Mr. Pierre Brien: I believe it is Mr. Piragoff who said that we must educate people on the real significance of the .08 limit. Some witnesses and even some committee members have some experience of the unit. People seem to believe that a .08 isn't very high, but it is perhaps higher than what we might generally believe. If we showed people that the .08 limit is higher than what they might think, could that not have the reverse effect?

[English]

Mr. Donald Piragoff: This, I think, goes back to the question of education. I remember the 1980s, when the government came out with this new legislation. At that time, the government at both the provincial and federal levels came out with basically a three-pronged attack.

One prong of the attack was new legislation. There was media coverage. The justice minister at the time went across the country and stopped in all the provincial capitals and held press conferences to increase public knowledge. At the provincial level, there was also increased enforcement and increased education. I remember that at the time there were all kinds of little pamphlets, say, with a chart showing that if you are male or if you are female and your weight is this, here's how many drinks it would take within an hour or an hour and a half to get you to certain levels. These were being handed out.

• 1340

As to whether that had an impact, I don't know. Clearly there were reductions in the 1980s. You probably can't put your finger on any one particular reason why impaired driving statistics went down in the 1980s. It could be a combination of all of these efforts together.

How can you educate the public? I don't know. Some people have suggested that people should have little pocket breathalysers or devices, that they should be commercially available. You can blow in them and the crystals turn colour if you have a certain amount of alcohol. The problem with them is, first, how accurate are they? If they're not accurate, are you going to give the person a false sense of security so that the person will say, “oh, I blew under”, when he is actually over?

Then, of course, there are the questions about the liability of the manufacturers of these little gadgets. What happens if the device shows that the person is under the limit, but the person drives and is actually over? Can that company be sued? That's the problem. There are gadgets out there that can assist individuals, but there's a concern about the legal liability.

[Translation]

Mr. Pierre Brien: I am going a little bit beyond your expertise with the Justice Department, but you stated that we might have to educate people on the significance of .08, whereas advertising campaigns are in fact saying: If you drink, don't drive, period. The message, therefore, is that one shouldn't drive after having had a drink. If we start telling people that they can drink up to a certain level, we will be going against the message being sent out at the present time. I'm not sure that would be very useful.

[English]

Mr. Donald Piragoff: I think that's why the message changed in the 1980s—to get away from telling people that if you weigh a certain amount and you have two drinks in an hour, you're probably still within the limit. With respect to the public message, it's just a lot easier to simply say, “don't drink and drive”, or, “no alcohol mixed with driving”, and that's it, “the two don't mix”. It's a lot easier.

The trouble is that most members of the public don't want to accept that message of absolutely no alcohol and no driving. Most people say they can have one drink and can drive. People feel they can do that, but you cannot, as a public message, say that's all right. You have to try to get to people so that they do not drink and drive, but if they are going to drink and drive they must make sure that they know what their limit is and they must stay within that limit. I think that's the more difficult message to get across.

Mr. Hal Pruden: Even at that, one would have to go a little bit further and put on a rider to say that even if a person is not over the 80-milligrams limit, based on a chart or whatever, that person, as an individual, might be affected by the alcohol and might be committing an offence under paragraph 253(a) of the Criminal Code for impaired driving, because some people get impaired at a level that is much lower than 80 milligrams.

[Translation]

The Chair: Mr. Brien, have you finished?

Mr. Pierre Brien: Yes.

The Chair: Thank you.

[English]

Mr. Pruden and Mr. Piragoff, thank you very much for being with us and giving us that information. We very much appreciate it.

We're adjourned until 3.30 p.m.