Second reading of Bill S-230, An Act to amend the Criminal Code (drug-impaired driving)Published on 26 October 2016 Hansard and Statements by Senator George Baker (retired)
Hon. George Baker:
I’ll be very brief.
Some Hon. Senators: Oh, oh!
Senator Baker: I don’t have a written speech with me; I left it in the washroom.
I wish to say a few words about this bill introduced by Senator Carignan. I think we all agree, basically, with the principle of the bill, and that is, as Senator Campbell will recognize, to have a test at roadside, using a swab of the mouth to do a drug test, to recognize whether or not the driver of the vehicle has consumed marijuana or cocaine or one of the other listed drugs that is in this particular bill.
There is a problem. I think most of us would recognize that perhaps there is a constitutional question here. But that would be investigated at committee, in the Senate, as to whether or not you can take a bodily substance without judicial authority as a means to establish a reasonable suspicion to refer the matter to a recognized expert at the police station for further testing.
However, the biggest problem with the bill, Senator Carignan, is this — and we’re going to have to address this. We’re the place of sober second thought, and the Senate does an excellent job on that. I notice, for example, that in the last three months the Senate’s committees are quoted by our various boards — I have a list of them here — and by our courts 14 times.
The House of Commons is quoted once, and it is because of the thorough job that the Senate does in committees in examining bills and in identifying what the purpose is, what the law is and what the intent of Parliament is regarding those bills.
Now, here is the problem that we are going to have when this goes to committee: Mr. Blaney, in the House of Commons, has introduced a bill which covers the same sections as Senator Carignan’s bill covers. It’s Bill C-226. It’s 37 pages long, and it has gone to committee in the House of Commons with government support, and therein, I think we recognize, there is a problem. Let me just put on the record what the government representative, Mr. Bill Blair, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, on Thursday, June 9, 2016, as reported in the House of Commons Debates, said when he made several statements. For example:
The government is . . . prepared to support the higher mandatory minimum fines for first offenders found with a high blood alcohol concentration . . . .
Then he says:
The government supports these enhancements to the drug recognition and evaluation program.
And, furthermore, the government supports — and Senator Carignan is going to be surprised at this — random testing. That’s where, in the Senate, it will run into a constitutional examination, because this bill will come to the Senate. So we will have the Legal and Constitutional Affairs Committee addressing a very important constitutional question: random testing. Now, it’s fine to say that all these other countries have random testing. All these other countries don’t have the Constitution of Canada. All these other countries don’t have the Canadian Charter of Rights and Freedoms.
And Senator Carignan’s bill, when I look at it, is the less offensive of the two as far as rights are concerned. And it’s indeed unfortunate that it didn’t originate at the same time Mr. Blaney’s bill originated in the House of Commons, where the government put forward its support for these provisions.
What you have here is a high noon situation, if the Senate passes Senator Carignan’s bill and Mr. Blaney’s bill removes every provision of the Criminal Code that Senator Carignan’s bill will amend. It removes every single section.
The wording has also changed. There are no sections 253 to 258 anymore on impaired driving. It’s up to sections 330 and 350 of the Criminal Code with completely different wording. Now, somebody could say, “Well, perhaps we could take Senator Carignan’s bill and add a major amendment to Mr. Blaney’s bill.” Unfortunately, it doesn’t work, because if we were to do that, first of all, we’d have to know what the new section is and how it could be incorporated. I’ve looked at it, and it doesn’t appear as if it can be incorporated, because the scheme has changed. The entire scheme of the impaired driving provisions is changed by Mr. Blaney’s bill.
Let me just for one second try to be very quick at this. We have an institutional memory here in the Senate. We don’t go back to 1925 when the first drug-impaired legislation was passed, but we go back to 2008. And in this chamber we addressed a drug- impaired driving bill, and practically everybody who was here in this chamber — Senator Tkachuk is looking at me; he actually sat on the committee at the time.
I didn’t attend the committee hearing; I was ill at the time. But Senator Tkachuk knew that I was opposed to certain provisions of the bill, and he asked the question to the officials, “Well, Senator Baker says that if you pass this bill half of Canadians will be judged to be drug impaired because of the physical coordination tests.”
Senator Tkachuk: Are you sure that was me, George?
Senator Baker: Yes, I’m sure it was you, because I read it, and the answer to your statement was, “Well, in that case, if they couldn’t pass the test, we’d take them to the hospital.” Now do you recall? Of course you do.
And my reason for that, senators, is that in the drug-impaired section, the way the cases go is this: An officer will stop a driver. The Blaney bill will give the power to the officer to stop without any indicia of impairment. In other words, somebody could be driving perfectly down the road, with no swaying — no, nothing like that — but it would give the police the power to be able to approach that driver and conduct a physical coordination test at roadside.
Now, we have, in provincial law in Canada today, every Highway Traffic Act in Canada has been amended over the past 10 years to allow an officer to stop you and ask you for your driver’s licence, your motor vehicle registration and your proof of insurance. And the officer will make certain observations: whether your face is flushed, how your eyes look and whether you have trouble getting your documents out. Senator Campbell knows exactly what I’m talking about.
Senator Campbell: I’m having trouble getting my documents out.
Senator Baker: He has trouble getting his documents out.
And the legislation says — well, the regime is — that the officer, if he notices that your pupils are dilated, for example, and larger than normal, and if you have these pinks — they call them pink, I call them red — in the mucous membrane of the whites of your eyes, that’s an indication of the use of marijuana.
And then you’re asked to get out of the vehicle, and then, first of all, there’s a test with the eyes, but the next one is you go heel to toe in a straight line, you turn around, and you come back without losing your balance. Then you stand on one leg without losing your balance. And if you fail those tests, you’re then sent to the drug evaluator expert.
And they then do 12 tests which are provided by regulation, each one of them where you have to hop on one foot, close your feet, tip your head back, close your eyes and touch the tip of your nose with your index finger.
There you go. I can’t do it. That’s an indication of impairment.
It has always been my submission that whereas there are people who can pass these tests — Senator Day is a great runner. Five o’clock in the morning, he’s out running. He’s in great physical condition. He could pass the test. We have Senator McIntyre, the great long-distance runner.
There are many people in here who are physically fit. I cannot stand on one leg and count up to 20 without losing my balance.
An Hon. Senator: You’re in trouble.
Senator Baker: I’m in trouble, says the senator. That’s exactly the point.
Senator Carignan’s bill proposes to use a device to take saliva from your mouth. Now, there is a problem with that. They’ve discovered in some countries that people who use marijuana have what they call “dry mouth,” and there’s difficulty in taking saliva. It takes some time to do it.
On the dilated pupil of the eye, as Dr. Dyck will tell you — she has a PhD in biological psychiatry and how the mind operates — when you have fear as an individual, your pupils dilate. That’s a natural reaction. Redness in the mucous membrane of the whiteness of your eyes could be lack of sleep.
Senator Carignan: So you need a device.
Senator Baker: It could be too much wine the night before. It could be lack of sleep. It could be you’re crying.
All those indicia form — let’s be precise — reasonable grounds to suspect, to put you in handcuffs and to take you to the station for those final tests. What do those final tests do? They then qualify you, if you fail them, to go and get the saliva test — that’s the present law — or a urine test, or a blood test.
Senator Carignan’s bill asks: Why not take the saliva test, the least invasive test, and put it at roadside? Not that it can be used in a court of law, because it can’t be. The breath test at roadside cannot be used in a court of law. It is simply to ground the suspicion, to enable you to be sent to the station for these final tests.
However, as I say, I have great objection to the MP who has now received government support on a bill which rejigs all of those sections of the Criminal Code, which allows for random testing, which will mean that persons can be taken out of a vehicle for no reason — no indicia are required for random testing — and asked to perform physical coordination tests at roadside. That is just offensive.
Now we have a less troublesome bill with Senator Carignan’s. The bills don’t match. This removes the entire section of the Criminal Code that Senator Carignan wishes to amend. It received the support of the government, going into third reading.
Supposing Senator Harder was to say, “I support Senator Carignan’s bill.” Then we’d have a high noon. We’d have to tell those who chime the bells on Parliament Hill to learn the theme of Gunfight at the O.K. Corral. It would be an incredible event.
I bring all this up just to point out that when this bill goes to committee, the Senate has to somehow try to rectify this problem we are facing. Perhaps the leadership can get together.
It’s unfortunate that the Conservative caucus in the other place didn’t get together and decide on Senator Carignan’s bill. It would be a far better solution to what is being proposed than the one that is now 37 pages long and has received the support of the Government of Canada.
We’ll have to deal with all these questions when it goes to committee, but, Senator Carignan, you have to recognize that there are problems associated with the bill, and we’re just going to have to deal with it when it gets to committee.
Hon. Wilfred P. Moore: Senator Baker, would you take a question?
Senator Baker: Yes, of course.
Senator Moore: I remember when the Breathalyzer test came in and some of the issues that you spoke about with regard to alcohol-impairment offences. I think the issue was the Borkenstein Breathalyzer. It had to be proven that it was that instrument, that the operator was qualified to use it and that he administered the machine or the testing properly. I remember — and I was successful on some of these myself — many people getting off because of the technicalities involving the testing and the equipment.
How do you see this proposed legislation vis-à-vis the testing, the 12 physical tests? I doubt that most people in this room could pass those today. How do you see that happening, and what do you see it leading to if this legislation goes through?
Senator Baker: Therein lies the problem. For every trial lawyer in this place, there lies the problem, because with the alcohol tests, a presumption is built into the Criminal Code that if the first test is done within two hours of driving, that certificate by the qualified police officer — Senator Dagenais is a qualified person to administer that test — and his signature, when the two readings come out — and the two readings, if it’s at 100, the next one must be between 100 and 120 because of the exhaustion rate from your body of the alcohol and so on. There are requirements. You have to wait 15 minutes between tests. You can’t be chewing gum. You can’t burp.
Senator Moore: You can’t drink, can’t have water, anything.
Senator Baker: That’s right. What you have being presented to the court is a reading that is signed by an expert police officer. That means you don’t have to bring the police officer to the police station. His certificate is accepted, and a presumption is built into the Criminal Code at 254(5), 258(5), that says that this is your record while you were driving two hours ago.
In this test there’s no such thing. What we have is an evaluation officer.
There’s a case right now before the Supreme Court of Canada as to whether or not the evaluation officer that’s referred to in Senator Carignan’s bill is considered to be an expert without proof having to be provided at trial. That is being decided now by the Supreme Court of Canada, as to whether or not that person would be recognized as an expert. But we still don’t have the presumption. We don’t have the fact that you must prove that somebody was impaired by a drug at the time of driving — nothing in the Criminal Code.
I think that’s probably the next step, to say that if it were written in law that the tests that were done in the police station shall be, there’s a presumption that that was your level of impairment at the time of driving.
There’s a lot of litigation around the problem you’re talking about. My goodness, the impaired driving provisions are the most litigated section of the Criminal Code. The saving grace of the tests is that a presumption is built in that the certificate from the Breathalyzer machine in the police station is proof that cannot be rebutted if the first test was taken within two hours of the time of driving.