Third reading of Bill S-230, An Act to amend the Criminal Code (drug-impaired driving)Published on 12 December 2016 Hansard and Statements by Senator George Baker (retired)
Hon. George Baker:
First of all, before I say a couple of words about this particular subject, I want to recognize the great job done today by the Finance Committee of the Senate. The subject matter under discussion wasn’t addressed in the House of Commons. It was mentioned by a New Democratic Party member and a Bloc Party member in a speech, but no emphasis was put on the issue, which was then raised at the Senate committee. That’s where it started, at Banking, and then it went to the Finance Committee.
I want to congratulate Senators Pratte, Harder and Carignan and the chair of the committee, who did such a great job today in the Finance Committee. Those four people put together, I believe, a very solid argument for a re-examination of a subject that’s of great importance, not just to the province of Quebec but to all provinces. The result is that the subject will be re-examined. I also want to congratulate the Prime Minister for agreeing to split a budget bill. But without the sober second thought of the Senate, it would never have happened. That’s the important thing.
The committees of the Senate continue to do such incredible work. Over the last 60 days, we have had mentioned in case law the Standing Senate Committees on Social Affairs, Science and Technology; National Security and Defence; Banking, Trade and Commerce; Agriculture; Energy, the Environment and Natural Resources; and Transport and Communications.
The Finance Committee today, with the Quebec bar before it, was discussing in detail three class actions that were brought before the Supreme Court of Canada: the Desjardins, Amex and Marcotte decisions.
It’s interesting to note that two of those judgments of the Supreme Court of Canada mentioned a Senate committee and the work it had done in bringing down those judgments. Unfortunately, it didn’t mention a Commons committee, but that’s not surprising, because the Commons committees don’t do the in-depth work that Senate committees do.
So off the top, I’d like to mention those things. Also, Ms. Anwar is at the table here today. She is a former clerk for the Standing Senate Committee on Legal and Constitutional Affairs, and we can all attest to her great competence, intelligence and knowledge of the law.
Having said all those nice things, I will get to the bill. I want first of all to congratulate Senator Carignan on this bill, and also to mention to the Senate that during the latter part of the summer, the Senate appeared before the Canadian Bar Association annual meeting in Ottawa and presented an interim report. Senator Carignan was there with Senator Batters, and I was there as well. We had a press conference in which he did a remarkable job.
We then went before a judges’ council with judges from all across Canada. Again, I want to congratulate Senator Carignan for the excellent job he’s done in presenting the interim report, of course not forgetting that the majority of senators who really wrote the report are behind him and on this side behind me, but Senator Carignan stepped in at the last moment and did a great job with all of the media.
Now, as far as this bill is concerned, we all support the general principle of the bill. However, I want to propose two amendments to the bill at the end of my few words.
I’m suggesting an amendment because — and I think all committee members will agree — there is a problem with the bill in that it says in two places that a machine will judge the presence of drugs in somebody’s blood. We have heard testimony that that is impossible to do. No machine can do that. You have got to take the blood.
That’s strange, because you would think that if you had a drug in your body there would be some way of judging it in your blood, but there isn’t. We heard evidence — and Senator Carignan is nodding his head — it’s absolutely correct.
There are two places in this bill where an amendment has to be made.
One further thing concerns me, and it’s this: Let me go back to what Senator White was saying. He’s an expert. He’s got experience not just at the top as a deputy commissioner of the RCMP, but also on the ground level with impaired driving persons.
Next to him, to his right, is Senator Dagenais, who is considered to be a court expert on impairment by alcohol. He is the person who, when a case is presented against someone in court, was, in his younger days, I imagine, called in a good many times in the middle of the night to go down to the police station.
He administered the breathalyzer test, and he signed on the dotted line as an expert. That signature is then used in court as proof of the alcohol content, the 80 milligrams in 100 millilitres of blood, as Senator White suggested. This is the test. Beyond that, section 253(1)(a) of the Criminal Code is impaired driving. Section 253(1)(b) is it’s an offence to have a certain amount of alcohol in your blood while as you are driving. Senator Dagenais is an expert on this.
Now, we have to consider that Senator Carignan is trying to fill a gap at roadside. At roadside, it’s not a simple matter; it’s the most litigated portion of the Criminal Code of Canada — sections 253 and 258 of the Criminal Code, the most litigated portions.
As of six months ago, the final province agreed, and all of the highway traffic acts have been changed in Canada to allow a police officer to stop a driver with no reason except to examine their licence, insurance and proof of ownership; and in three provinces, the Highway Traffic Act further states “to investigate the possibility of impairment by drugs or alcohol.”
So we no longer have the problem of articulable cause, as Senator White referred to, where someone was driving on a road and there was an articulable reason to stop that driver. Maybe somebody phoned the police and said, “That person is a drunk driver.” Maybe that person was swerving all over the road; maybe the person was driving slowly, just barely, and weaving a bit. But there had to be articulable cause.
Now, under the highway traffic acts in all the provinces, you don’t need to have articulable cause to start an investigation.
When we changed the law years ago to allow for a shortcut at roadside, the shortcut was this: The police officer comes up to the window of the police car and speaks to the driver. He asks the driver, “Can I have your driver’s licence, proof of insurance,” and so on. During that contact, the police officer can sometimes make a judgment as to whether or not that person is impaired or that he suspects the person is impaired.
The indicia, for example, are a flushed face, smell of alcohol, red eyes, or fumbling to get his documents together to show to the police officer. These are the indicia that a police officer is trained to observe in order to create a suspicion in that officer’s mind, and it has to be a reasonable suspicion. A straight suspicion simpliciter is not good enough; it has to be a reasonable suspicion.
The officer then says, “Sir, will you accompany me to my police vehicle to carry out a roadside test?” Up to this point there is no right to counsel. Why? Because the Supreme Court of Canada has ruled that right to counsel is not necessary. Why is it not necessary? Although you’re being detained, it’s not necessary. Yes, it was a violation of section 9, arbitrary detention, but it’s saved by section 1 of the Charter; demonstrably justified in a free and democratic society because of the carnage on our highways. That was the judgment of the Supreme Court of Canada.
So the person accompanies the police officer to the police vehicle. The police officer makes a note in his mind of how that person is navigating — whether they’re weaving from side to side and whether they have to hold on to the vehicle. Then the person gets into the vehicle and the police officer gives the person the roadside test. You have to blow into this instrument for 12 seconds, continuous, with full force. For some people that is difficult. For people who have asthma, for example, that’s difficult to do.
Somebody might say, “I have a reasonable excuse.” The law at that time said that a person who refuses the breathalyzer at roadside in the police vehicle is guilty of impaired driving. That’s what the law is: You’re just as guilty to refuse.
The person would have to put up a defence and provide proof that they had, say, problems with asthma such that they couldn’t fulfill that test, and so on. There is a lot of litigation on that.
So the person registers a fail on the breathalyzer. According to the law, the police officer now has reasonable grounds to believe that that person is impaired by alcohol. Therefore, the police officer arrests that person. The breath demand means you’re arrested. Then the officer reads the breath demand — not right to counsel. That comes after, because you have to know the extent of your jeopardy before you can respond to whether or not you need to instruct counsel.
So the breath demand is made and right to counsel is offered. And even today, because of cellphones, the officer says, “Would you like to contact counsel now?” Sometimes a cellphone is used.
The person is taken to the police station, and there they meet Senator Dagenais. Senator Dagenais is the expert recognized by the courts; his signature means you are guilty of impaired driving within the previous two hours. The first test must be made within two hours of your observed driving. There’s a limit prescribed in law. There is an assumption with that particular signature of Senator Dagenais, with the machine, with the tests taken 15 or 20 minutes apart. The person can’t have candy or chewing gum in his mouth. You must test the machine each time and observe the person for 15 or 20 minutes prior to a test being done. It’s a very complicated procedure.
Along comes Senator Carignan. Senator Carignan is addressing the problem of drugs. At roadside, as Senator White said, you now have a simple test that you do. The previous government brought in what was called the drug-impaired driving changes to the Criminal Code. You have to do these physical coordination tests, which I can’t do; I can’t pass them. That’s considered to be forming a reasonable suspicion: the colour of your eyes, dilated pupils and so on. For somebody who has been smoking marijuana, the pupils dilate. There are specific indicia.
However, there is nothing like the roadside breathalyzer machine. That’s a shortcut. We don’t have that as far as drugs are concerned, and that’s what Senator Carignan is proposing: the simple taking of a portion of your saliva at roadside.
Senator Carignan says it’s constitutionally valid. Well, we’ll have to wait for the courts to find out whether or not that’s true, because the breathalyzer that’s taken, that test of your breath at roadside, went through a series of court proceedings until it got to the Supreme Court of Canada. The Supreme Court of Canada said yes, it’s demonstrably justified because of the carnage on our highways with drunk drivers.
It takes time to sample the saliva from your mouth. For persons on drugs, saliva dries up in the mouth. In some states in the U.S., they ask the person to chew gum before they take the sample. There are problems with the period of time. It’s a detention, and you can’t have the detention until it’s justified.
There is a second problem with the bill. My goodness, there must be several senators who are concerned about it. Senator Sinclair would be concerned about it, I think: the problem with the DRE, the drug recognition expert, which was introduced by the previous government. The Harper administration introduced the drug recognition expert into law. And that person receives their training where? Senator White is a member of the International Association of Chiefs of Police, the association that licenses those persons in the United States. There is a school in Quebec where people are taught that expertise.
Why? In court, somebody has to be recognized as an expert, with credentials, in order to testify with certainty that you are, in fact, impaired by a drug. That’s why Senator White read out the 12 tests that are done with the drug recognition expert.
I’m going to propose two amendments to the bill, if the Clerk could give them to the Speaker. And the two amendments are that the reference in the bill to using this shortcut that Senator Carignan is suggesting to measure “drugs in the blood,” to change that to “drugs in the body” in the two instances where it’s mentioned.
I feel certain that Senator Carignan is going to stand up and say, “I agree with this amendment.” I’m sure he’s going to say that.
In closing, I’m going to propose these two amendments and congratulate Senator Carignan and say that perhaps there might be something else that may need to be looked at, and that is the drug recognition expert. We have it now in the law. Why are we taking it out?
Senator Carignan puts up a very good argument. You don’t have those on every street corner, it takes time to train people, but the logic of putting them in was to provide that expertise that would work in court and convict people who are guilty of drug- impaired driving.
The two amendments that I’m making are on page 2, and I’ll provide a copy —
The Hon. the Speaker: Excuse me, Senator Baker; normally we only move one amendment at a time. Is there some way you can incorporate them into one amendment so we can have a debate on one amendment?
Senator Baker: Yes.
The Hon. the Speaker: Carry on, Senator Baker.
Senator Baker: I’m going to move one amendment that amends two places in the same clause. In other words, I’m saying that His Honour is right, it must be one motion.
Motion in Amendment
Hon. George Baker: Honourable senators, therefore, I move:
That Bill S-230 be not now read a third time, but that it be amended in clause 2,
(a) on page 2, by replacing lines 5 and 6 with the following:
“that is designed to ascertain the presence of alcohol in the blood of a person or of drugs in a person’s body and that is approved for”; and
(b) on page 3,
(i) by replacing lines 3 and 4 with the following:
“be made to determine whether the person has a drug in their body; or”, and
(ii) by replacing lines 8 and 9 with the following:
“to determine whether the person has a drug in their body.”.