Honourable senators, driving is not a right but a privilege that comes with responsibilities to ensure public safety. According to Statistics Canada, impaired driving is the most common offence brought before the criminal courts and one of the leading criminal causes of death, despite major improvements in annual impaired driving rates since the 1980s. For example, the number of police-reported impaired driving cases has declined by 65 per cent compared with 1986, which has at least some connection with the 55 per cent decrease in the number of cases of impaired driving causing death.

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Despite this progress, alcohol-impaired driving remains a critical problem. Furthermore, it is appropriate to take action now to further combat the perverse effects of impaired driving resulting from other substances, including cannabis. Accordingly, the purpose of Bill C-46 — to simplify the investigation and prosecution of impaired driving offences — is clearly a worthy one. However, its future implementation raises serious issues. There is an important difference between alcohol and drug testing. Unlike the blood alcohol concentration, the concentration of drugs in the blood is only weakly and loosely correlated with impairment. Moreover, balancing improvements to Canadians’ public safety and the protection of individual rights is a fragile exercise.

I will discuss three aspects of these dilemmas: uncertainty regarding the constitutionality of random alcohol breath testing; the risk of racial profiling that arises from random screenings; and the impacts of the new drug screening framework.

The many witnesses heard by the House of Commons Standing Committee on Justice and Human Rights had widely varying opinions about random alcohol testing. Still, most agreed that it is unclear whether new subsection 320.27(2) would be constitutional. This provision would bring to Canada the Australian model, which gives police officers full authority to conduct random alcohol screenings. The dreaded subsequent legal uncertainty will result in a higher volume of court challenges. This will place an additional burden on the justice system, which is already in crisis as regards trial delays in the wake of the Jordan decision. Before unreservedly supporting such a measure, I think it would be appropriate to consider two interesting alternatives, the first of which is based on Ireland’s experience and the second set out in the former Bill C-556.

First, mandatory screening only at organized and announced roadblocks, that is, a fixed-checkpoint model. Second, mandatory screening following a traffic accident that results in injury or death.

It is also worth emphasizing the potential consequences of the new random alcohol testing approach for racial minorities. The current framework protects all Canadians against illegal searches and seizures. It establishes a balanced standard based on the subjective belief of the police officer that the suspect has committed the offence and an objective assessment of the police officer’s observations, generally performed using an approved screening device. This process allows a breath test to be administered where the police officer has reasonable grounds to suspect that the driver has alcohol in his or her body.

This criterion was established to strike a fair balance between police law enforcement powers and Canadians’ reasonable expectation of privacy. The Supreme Court of Canada described this delicate exercise in balancing social interests in R. v. Chehil. The following excerpt explains the reasoning underpinning the standard of reasonable suspicion and cautions us against unconditionally subjecting citizens to random screenings:

[Reasonable suspicion] is a robust standard determined on the totality of the circumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny. As Doherty J. A. said in R. v. Simpson (1993) . . . the standard prevents the indiscriminate and discriminatory exercise of police power.

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Eliminating the requirement to have reasonable grounds for suspicion that the driver has consumed alcohol gives the police officer an arbitrary power that runs the risk of increasing racial profiling. A good number of social science studies prove what most people recognize intuitively: drivers belonging to racial minorities are pulled over more often than their fellow citizens. For example, a 2015 study found that black youth in Toronto were 4.1 times more likely to be stopped and questioned about traffic violations than white people. In light of these facts, it appears that random sobriety tests may be unfair and unjust, at least in certain sectors.

To minimize the use of such tests, there has been much discussion about testing at stationary roadblocks. This ensures that all drivers are pulled over, without exception, and in a truly impartial manner. However, it would be unrealistic to believe this measure could be implemented smoothly. That would completely disregard Canada’s economic, geographic, demographic and cultural reality. Most random tests are carried out when vehicles are stopped by police on the side of the road. It is our duty to ensure that racialized minorities are protected against the risk of discrimination arising from the new approach to alcohol screening. To that end, I would refer you, among other things, to the alternatives that I outlined previously.

I also have questions about the approach to testing for drugs, cannabis especially, where a metabolic THC level has been established. In fact, the THC levels in saliva, blood, and fatty tissue do not necessarily reflect impairment. In his recent testimony, Chief John Bates, of the Saint John Police Service in New Brunswick, echoed the comments of the Canadian Association of Chiefs of Police: there is still no scientific means of testing for drug impairment in the way that we can test for alcohol impairment. This fact must absolutely be examined in detail by the Senate committee that will study this bill.

First, it would be important to clearly establish the criteria a police officer could use to determine whether there are reasonable grounds to believe that a person is driving under the influence of drugs and how these criteria would differ from those being used, until further notice, to recognize the signs of drinking. Second, the committee should definitely assess whether the various blood drug concentrations considered to be criminal offences as defined in the supporting regulations are empirically justified, as well as the negative impact these concentrations could have. The media recently reported that the saliva testing devices are not yet fully ready. Although the government claims they will be ready by July 1, the committee should think about what needs to be done if they are not. Costs and timelines for training evaluation officers, or drug recognition experts, should also be taken into consideration, particularly with the deadline looming.

The final issue I want to point out is that Canadians who use cannabis for medical purposes may be disproportionately affected by the new approach. Does Bill C-46 take these Canadians’ circumstances into account? These measures should not inadvertently discriminate against patients who use medical cannabis to treat conditions like chronic pain. Not only will the committee have to examine whether this measure complies with the Canadian Charter of Rights and Freedoms, but it will also have to consider the alternatives available to medical cannabis users in this context. We know that tolerance for cannabis varies widely from one individual to another, as does the length of time that traces of THC stay in a person’s system. The different consumption methods could also have an impact, which is something that has not been discussed much so far. However, the data currently available suggest that to avoid driving over the limit, long-time users of medical cannabis may have to wait several days before getting behind the wheel, even if their faculties remain unimpaired.

The same problem could affect regular recreational users.

In closing, we must support the objective of Bill C-46, as we are all fully aware of the importance of reducing the very serious consequences of impaired driving as much as possible. However, certain constitutional questions, particularly related to racial profiling and the impact of the new approach to drug detection, need to be carefully examined with a view to identifying solutions that will minimize the risks. In this context, the members of the Senate committee will have an essential role to play in ensuring that this bill does not encroach on any rights, in the form of discrimination arising from a lack of clarity, omissions, or inadequacies in the legislation as drafted. Thank you.