I testified today before the Standing Committee on Justice and Human Rights of the House of Commons. I appeared as Chair of the BC Civil Liberties Association Drug Policy Committee to oppose Bill C-32, legislation that if passed would do several things:

a. Increased penalties for impaired driving including increased mandatory fines and mandatory minimum jail sentence;
b. A new, mandatory and highly invasive drug testing process;
c. The creation of a new offence of driving while in possession of drugs;
d. The creation of new offences related to causing injuries while impaired and refusing to provide breath or bodily samples to police after being involved in an accident;
e. Restrictions on the right of a person accused of driving with BAC (blood alcohol concentrations) over .08% to call evidence in his or her defence;

My panel included representatives from MADD and the Canadian Association of Criminal Defence Lawyers. I think the presentation went well, but from the Committee's comments, this Bill appears virtually certain to pass if it gets to a vote on the floor of Parliament (though, with luck, there may be some amendments).

I said, essentially, that the evidentiary restrictions related to BAC tests are based on the faulty assumption that the BAC test is infallible and that, as undue restrictions on the Charter right to full answer and defence, they will certainly be challenged and are likely found to be constitutionally invalid. Rather than reducing the amount of time required in court on BAC cases (one purported justification for the changes), this law will dramatically increase the burden on the criminal justice system.

With respect to the Driving While in Possession (DWP) offence, I pointed out that it is totally unrelated to driving while impaired, constitutes an end-run around the Controlled Drugs and Substances Act, should not be in this Bill at all and that the mandatory driving prohibition associated with a conviction (1 year to 3 years for a first offence and increasing thereafter) is excessive and unwarranted, given that the offence itself has nothing at all to do with one's driving ability. You could be convicted simply if you are driving a car and you know your passenger has a joint in his/her pocket.

I also objected to the proposed drug testing procedures for several reasons:

1. Significant concerns exist with respect to the accuracy of the DRE evaluation process.
2. Saliva, urine and blood testing is highly invasive of personal privacy and is often a degrading and humiliating experience.
3. The process set out in the legislation is cumbersome and extremely time consuming, and the individual is detained by police the whole time.
4. Worse, the results of both the DRE evaluation and bodily sample testing are of little evidentiary value because the DRE process, while appearing to be scientific, is actually susceptible to significant error rates; one study suggests that average error rates are 21%. Put another way, of every 100 persons from whom a blood or urine sample is demanded under threat of being charged with an offence for refusing, 20 will have been falsely accused and improperly and involuntarily subjected to a very invasive process. Moreover, the invasive process - the forced taking of blood, urine or saliva - yields essentially worthless information. The legislative summary is clear that there is simply no way to link impairment to the presence of drugs in one's system. Put in legal terms, the information gleaned from the testing is irrelevant to the ultimate issue of impairment. The biggest burden will fall on marijuana users, particularly on licensed medical users, who can and will test positive hours, days or weeks after consuming cannabis despite that they may not have used cannabis immediately prior to driving.

My final objection was philosophical rather than practical: laws should not be promulgated in order that government may be seen to be doing something as opposed to actually doing something about a problem. The money that will be required to implement this new law is much better spent on educational programs designed to teach people, particularly young people, about the danger of driving while impaired. We have made great positive strides when using education rather than enforcement as the primary method of achieving our shared goals and, critically, education does not unduly infringe on the civil liberties and freedoms that are the very foundation of our democracy.

Kirk Tousaw
www.tousawlaw.ca
www.bcccla.org
www.endprohibition.ca

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