BRIEF TO THE
Standing Senate Committee on Legal and Constitutional Affairs
42nd Parliament, 1st Session
Bill C-46: An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts
Submitted by the Canadian Criminal Justice Association, February 2018
Background of the Canadian Criminal Justice Association
The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present to the Standing Senate Committee this Brief regarding Bill C-46: An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts.
The Canadian Criminal Justice Association was founded in 1919 and remains an independent, national, voluntary organization working for an improved criminal justice system in Canada. Recognizing that the criminal justice system must serve the needs of all people, the CCJA represents all elements of the criminal justice system, including the public. It exists to promote rational, informed and responsible debate in order to develop a more just, humane, and effective justice system. The CCJA is one of the largest organizations of professionals and individuals interested in criminal justice issues in Canada. The CCJA publishes the Canadian Journal of Criminology and Criminal Justice and the quarterly Justice Report. The Association also organizes the Canadian Congress on Criminal Justice, held every second year.
History of Bill C-46
Bill C-46 was introduced by the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada on April 13, 2017. The Bill was passed by the House of Commons on October 31, 2017. It received 1st Reading in the Senate on November 1, 2017, and 2nd Reading and referral to the Standing Senate Committee on Legal and Constitutional Affairs on December 14, 2017.
Scope of the Brief
Bill C-46 proposes reforms to the current impaired-driving laws. This brief will focus on the proposed changes that the CCJA deems most impactful on our current alcohol and drug impaired driving regime.
- Reinforced Police Powers: Roadside Drug Detection
Bill C-46 seeks to give police officers extended powers to assist them in identifying and arresting individuals driving under the influence of drugs. Indeed, it allows peace officers to perform roadside drug screening tests in a fashion similar to alcohol-impaired drivers under current Canadian law[i].
The CCJA recognizes the usefulness of helping peace officers more readily obtain the evidence required to prosecute individuals who drive impaired by drugs or by a combination of drugs and alcohol. It is our understanding however, that the hand-held devices that would be used are not yet reliable enough to be used by peace officers and recommend that the implementation of this section be delayed until the reliability of the devices has been proven unequivocally.
The CCJA questions as well how peace officers would detect individuals driving impaired by a combination of alcohol and drugs. Indeed, it is possible that an individual might be under the legal blood alcohol level, as well as under the legal drug concentration level, yet above the drug and alcohol concentration level that is legislatively equated to road dangerousness[ii]. To detect these impaired drivers, would peace officers perform both the breathalyser and drug-screening tests? The CCJA recommends Parliament clarify the appropriate approach that peace officers should adopt in this scenario.
The CCJA finally stresses the importance of funding being available across the country to ensure that police authorities can properly train their officers.
- The Creation of Per Se Drug-Impaired Offences
Bill C-46 aims to create per se drug-driving offences, in addition to the current impaired-based drug-driving offences[iii]. Per se impaired-driving offences focus solely on a driver’s drug-blood concentration to determine guilt, regardless of actual impairment. For example, the current 80 mg/100 ml alcohol-blood concentration limit[iv] is a per se offence since proof of impairment is not required to be found guilty of the offence.
The CCJA recognizes the need to simplify the task of proving drug-impaired driving offences. Establishing impairment is a more difficult task than detecting drug-blood concentration. By enacting per se offences for drug-impaired driving, proof of impairment would not be required to determine guilt. In addition, setting the drug blood levels by regulation theoretically ensures that the scheme can quickly and efficiently mirror scientific progress that correlates drug-blood concentrations and impairment[v]. The CCJA however believes this approach to be flawed given the current state of evidence.
First, there are profound differences in the way the human body metabolizes alcohol and cannabis[vi]. Importing the Criminal Code’s logic regarding alcohol-impaired driving to cannabis-impaired driving is not wise. It forgets that THC-blood concentrations do not adequately portray proximity of use. Also, it does not consider that the presence of THC does not necessarily reflect psychoactive influence the same way the presence of alcohol does. Finally, it presumes that cannabis impairment equates to road dangerousness, which is not proven[vii].
Secondly, there is confusion that even public awareness campaigns may not clarify. It is crucial that the public understand practically what the per se levels mean in terms of consumption, particularly in light of the government’s plan to legalize the possession and cultivation of small quantities of cannabis. In the same way the public generally understands how much alcohol (a legal psychoactive product) may be consumed before driving, the public must also generally understand how much cannabis can be consumed before driving. However, contrary to alcohol, there are many factors that make it very challenging to establish a clear connection between the consumption of a specific amount of cannabis and a specific drug-blood concentration (and its impairing effect). These include the amount of cannabis consumed, the strength of the cannabis, the method of consumption, the chronicity of use and the personal characteristics of the user, such as weight and body fat. These factors influence the amount of THC[viii] in a person’s body, its impairing affect and the amount of time that must elapse before safely operating a vehicle. This is a real problem if the public cannot clearly comprehend what will, or not, entail criminal sanctions. This is contrary to one of the basic premises of Canadian criminal law. It is also illogical to favor a zero-tolerance approach, while simultaneously decriminalizing the consumption.
Thirdly, Bill C-46 does not address the issue of second-hand cannabis smoke. Our understanding is that under Bill C-46 and the offences it proposes, driving while involuntarily impaired by second-hand smoke would be a criminal offence. This can be a problem given that the per se offences do not permit any defence regarding second-hand smoke.
Finally, regarding the creation of per se offences, the CCJA recognises that regulation could be a tool that may be lauded for its efficiency. We believe however that the drug-blood concentrations, as well as the drug and alcohol blood concentrations, in excess of which a criminal offense is automatically committed, is not simply a matter of science and should not be left to regulation but, should rather be studied and debated publically in Parliament.
- The Moment the Impaired-Driving Offence Is Committed
The CCJA recognises the benefits of focusing the commission of the offence within the two hours after ceasing to operate a conveyance[ix]. It will render ineffective defences that are currently criticised as being illegitimate and taking up a lot of court time. The CCJA notes that the Bill wisely contains a provision that is aimed at protecting individuals who innocently consume alcohol and/or drugs after driving.[x]
The CCJA applauds Parliament for taking impaired-driving offences seriously but, we do not believe that tougher sentencing is effective in curbing the commission of the offence. The increase of sentence maxima, or of mandatory minima, is not an approach Parliament should ever adopt when it comes to sentencing. We however, strongly endorse the proposed hybridization of the impaired-driving causing bodily harm offence. Expanding Crown discretion and re-equipping judges with diverse sentencing tools are approaches that should be encouraged. In this vein, the CCJA also urges the federal government to do more to facilitate the development and use of therapeutic models like Drug Treatment Courts, where addiction appears as part of the circumstances leading offenders to offend, as well as diversion and restorative justice options where appropriate.
- Mandatory Alcohol Screening
Under the proposed mandatory alcohol screening laws[xi], officers who lawfully intercept a vehicle will not have to have reasonable grounds to suspect the person has alcohol in their body before asking them to provide a breath sample.
We endorse Parliament’s commitment to reducing the amount of impaired-driving offences on Canadian roads. Eliminating the “reasonable grounds to suspect”[xii] requirement will arguably assist officers in enforcing the law and protecting the Canadian public. Indeed, some would argue that officers have difficulty securing the necessary grounds required to issue a demand for a breath sample. Equally, drunk drivers can act sober when intercepted by police officers and manage to remain undetected. Consequently, there are still many alcohol-impaired drivers on the roads and it is believed that mandatory alcohol screening will greatly reduce the number. Many Commonwealth and European jurisdictions have enacted such laws with resounding success in reducing the number of alcohol-impaired drivers on their roads[xiii]. Also, mandatory alcohol screening serves court efficiency purposes by lessening the evidentiary burden on prosecutors who won’t be required to prove reasonable grounds to suspect.
We do recognize the Charter risks of mandatory alcohol screening. Fortunately, in our legal system, the courts will be responsible to determine its constitutionality. The CCJA believes that there are good and valid arguments to find that such violations are justified under section 1 of the Charter.
The CCJA endorses much of Bill C-46. Reinforcing roadside drug detection powers, hybridizing certain offences, limiting certain arguably unwarranted legal defences and enacting mandatory alcohol-screening are supported. However, the CCJA believes that the creation of per se drug-impaired driving offences and the toughening of sentencing provisions are not appropriate. Parliament must ensure that any proposal for legislative reform is evidence-based, reasonable, fair and workable.
[i] Crim. C., s. 320.27-320.28 (Bill C-46, s. 15).
[ii] Crim. C., s. 320.14 (1)(d); Crim. C., s. 320.38 (Bill C-46, s. 15).
[iii] Crim. C., s. 320.14 (Bill C-46, s. 15).
[iv] Crim. C., s. 253(1)(b).
[v] Crim. C., s. 320.38 (Bill C-46, s. 15).
[vi] This brief focuses on impaired driving caused by the consumption of cannabis given Parliament’s intent to legalize cannabis in July 2018 (Bill C-45).
[vii] For details on the differences between alcohol and THC impairment, see Andrea Roth, “The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness”, 103 Calif. L. Rev. 841 (2015); Andrew Sewell et al., “The Effect of Cannabis Compared with Alcohol on Driving”, 18 AM. J. ON Addictions 185 (2009).
[viii] THC (Tetrahydrocannabinol) is the psychoactive component of cannabis.
[ix] Crim. C., s. 320.14 (Bill C-46, s. 15).
[x] Crim, C., s. 320.14 (5) – (7) (Bill C-46, s. 15).
[xi] Crim. C., s. 320.27 (2) (Bill C-46, s. 15).
[xii] Crim. C., s. 254(2) in limine.
[xiii] For details on the benefits of mandatory alcohol screening, see: R. Solomon, B. Tinholt, R. Wulkan and S. Pitel, “Predicting the Impact of Random Breath Testing on the Social Costs of Crashes, Police Resources, and Driver Inconvenience in Canada”, 57 Crim. L.Q. 438 (2011); C. Peek-Asa, “The Effects of Random Alcohol Screening in Reducing Motor Vehicle Crashes”, 16 Am. J. Prev. Med. 57 (1998); E. Chamberlain, R. Solomon and A. Kus, “Drug-Impaired Driving in Canada: Moving Beyond American Enforcement Models”, Criminal Law Quarterly, Vol. 60, Issue 2 (October 2013).