1st Session, 42nd Parliament
Volume 150, Issue 218

Monday, June 11, 2018
The Honourable George J. Furey, Speaker

Criminal Code

Bill to Amend—Third Reading—Motion in Amendment—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Boniface, seconded by the Honourable Senator Sinclair, for the third reading of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, as amended.

And on the motion in amendment of the Honourable Senator Gold, seconded by the Honourable Senator Pate:

That Bill C-46, as amended, be not now read a third time, but that it be further amended in clause 15,

(a)on page 23, by replacing line 35 (as replaced by decision of the Senate on June 4, 2018) with the following:

“320.27 (1) If a peace officer has reasonable grounds to”;

(b)on page 24, by adding the following after line 17:

“(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.”; and

(c)on page 34, by replacing line 18 (as replaced by decision of the Senate on June 4, 2018) with the following:

“conducted under paragraph 320.27(1)(a); and”.

Hon. Mobina S.B. Jaffer: Honourable senators, I rise today to speak on Bill C-46 and on the amendment introduced at the Standing Senate Committee on Legal and Constitutional Affairs that removes a provision allowing police to conduct roadside Breathalyzer tests when they suspect that a driver may be impaired by alcohol. I would like to thank Senator Gold, Senator Pratte and Senator Boniface for their work on this amendment.

I begin by saying that we must be pragmatic as we go forward in considering whether we should include mandatory screening in Bill C-46.

(1900)

When I hear the debate on mandatory screening, I can’t help but think about when I was a young lawyer and we had, for the first time, very strict alcohol impaired driving legislation. Those strict laws, then education, led to cultural change. And then we had further stricter laws, education and a cultural change. We went from people not being offended to see people driving while impaired to now we absolutely don’t accept it.

I speak on this bill because I believe it’s really important that we look at what mandatory screening will do. I support this amendment as I believe that we have a crisis in Canada. Right now, Canada has a serious impaired driving problem. According to the U.S. Centers for Disease Control, Canada ranks the highest out of 19 countries for impaired driving deaths. On average, three to four Canadians die every day due to impaired drivers. As we go forward to legalize recreational cannabis, we need to make sure that this number does not increase. Right now, drugs are already involved twice as often as alcohol in fatal crashes. Once Bill C-45 is passed, this number could easily rise.

Honourable senators, Canada’s current system of breath testing is one of selective breath testing. Only drivers reasonably suspected of driving while impaired can be tested. Studies have shown that such programs miss a significant portion of legally impaired drivers. They miss 60 per cent of drivers with blood alcohol concentrations over the criminal limit of 0.08. When impaired drivers are permitted to drive on our roads, they continue to present a threat to themselves and to Canadians. In other words, when we fail to detect impaired drivers, we are putting countless Canadians at risk.

This has to stop. Evidence shows that mandatory screening works and that it plays an important role in preventing road deaths and injuries. For example, in Ireland, road fatalities dropped by almost 40 per cent four years after mandatory screening was adopted. If we experience similar success in Canada, that would save 510 lives per year.

I also share a concern held by several senators here about how the mandatory testing system will impact Canada’s minorities. Our history shows that minorities are often the people who are hurt most by these types of mandatory stops. As you will remember, I asked Senator Gold this question as I was very concerned about people being stopped. In my community, we call it driving while Black. Between carding and mandatory traffic stops, there are many instances where our police forces have targeted visible minorities and our Aboriginal people. In fact, law enforcement has a responsibility to ensure fair, equal and appropriate application of the law.

I am not saying that our police forces are racist. However, there is strong data showing that across Canada, detention powers like those granted under those mandatory screening provisions have resulted in racial discrimination against vulnerable groups and Aboriginal people.

Honourable senators, for that reason, my support for this provision comes with a condition. If we are going to implement mandatory screening for impaired driving, we must also have strong accountability measures in place that can hold our police forces accountable for their actions. We are giving them tremendous powers, but we expect them to use them responsibly and we expect them to not treat one group of people differently from another.

We have already recognized the need for our police forces to be answerable when we give them unprecedented powers. When we voted on this bill at second reading, it already contained a mandatory review of its overall impact after three years. When Bill C-46 came before the Standing Senate Committee on Legal and Constitutional Affairs, we also agreed that this review should include a specific disposition to monitor its impacts on minorities and Aboriginal people. These are both important first steps, which will ensure that our police forces know that they cannot use Bill C-46 as an excuse to engage in racial profiling. We have found it unacceptable before, and we’ll continue to find it unacceptable in the days to come.

Honourable senators, I know you will agree with me that our Canadian values do not have a place for racial profiling. I’m worried that these reviews will not have the information that they need to truly keep track of racial profiling.

When representatives from the Department of Justice came before us, they told us that no records are kept of stops that do not lead to criminal consequences. In other words, if a person is stopped and subjected to a frivolous drug or alcohol test and then sent on their way, there is a very high chance that we may never hear about it. It would be left up to the individual police officer’s discretion whether they wanted to record the incident and keep track of racial data.

When this was brought up for the issues of carding and mandatory traffic stops, the police showed great reluctance to do so. We cannot expect it to happen here. There have to be records kept.

Simply put, even with these reviews in place, there is very little chance that we will have data that can accurately tell us what is happening across the country. Worse yet, we cannot even rely on our police forces to keep good data on this important subject. This is unacceptable. If we are serious about reviewing how this bill will impact minorities, we need accurate data to track it. If we cannot rely on our police forces to keep track of this data, then we need to take action and ensure that it is tracked elsewhere.

Honourable senators, I believe that this problem can be solved without an amendment to Bill C-46. Public Safety Canada has the power to create a complaint-based independent civilian framework that can track and record incidences of racial profiling related to these roadside tests, and I strongly urge Minister Goodale to do so once this bill is passed. This would not be an unprecedented step.

We already have several complaint systems in place to monitor our police forces whenever they act in a way that violates the rights of Canadians. For example, the RCMP has the Civilian Review and Complaints Commission. British Columbia also has the Office of the Police Complaint Commissioner and the Independent Investigation Office. If our government is serious about protecting our visible minorities and Aboriginal people from racial profiling, then it must ensure Canadians have somewhere to go when they are subjected to these mandatory tests in a frivolous way.

Honourable senators, I would like to stress that I am not opposing the provisions of Bill C-46 that would allow for mandatory screening. This is something we need. I believe this is something we need because it will save lives. There is simply no denying that Canada has an impaired driving problem, and this provision could easily save hundreds of lives every year. It’s simply too important of a measure not to implement.

However, I also understand that tremendous powers, like those granted by Bill C-46, must be balanced with accountability for the police forces that will wield them. We all agree that Canadians deserve a fair review process that can track Bill C-46’s impact on our most vulnerable people. Let us ensure that this review process is supported with strong data.

That is why I urge all of you to join me in calling for a complaints-based independent civilian framework that can track racial profiling. We must preserve the balance between the safety of Canadians and their constitutional rights.

Honourable senators, I would humbly ask our Human Rights Committee to do a study on this to make sure when the three-year review happens, we will have already done the work to be able to review this bill carefully.

Honourable senators, I’m urging Prime Minister Trudeau, Minister Goodale and Minister Jody Wilson-Raybould that with the tremendous powers we may be giving to the police forces, they are going be held accountable to protect minorities. By giving police the authority, I am challenging the police commissioners and the chiefs of police right across the country that we will be watching. With these powers, you will have to give accountability.

The Hon. the Speaker pro tempore: Would you take a question, Senator Jaffer?

Senator Jaffer: Yes.

Hon. Marc Gold: Thank you very much for your speech. I welcome your support for the three-year review, and I support your call for a complaints-based independent civilian framework to track and record incidences of racial profiling related to roadside tests. That is a salutary recommendation.

(1910)

Do I understand correctly that you nonetheless support my amendment to reintroduce mandatory alcohol screening into Bill C-46?

Senator Jaffer: Yes, Senator Gold, I support the amendment, because I listened to you, spoke to Senator Pratte and to Senator Boniface, and it really struck me how important it was to have mandatory screening.

The day you spoke, if I can share something personal, I was sitting here and thought I may have the power to persuade some people about how important mandatory screening is. I couldn’t think of anything but my grandchildren. Today, I have an opportunity to maybe make a difference in the lives of our grandchildren and our children. That’s why I support this amendment.

Hon. Jane Cordy: I listened carefully to your speech, because I have been really thinking about whether I would support the amendment. I will be supporting the amendment, Senator Gold, before you ask. In fact, I went to dinner last night with my husband, and this is what we were discussing. I’m not sure he liked that’s how we spent our time together, but that’s what we did nonetheless.

You’re right: We do have screening of impaired drivers, but there has to be reasonable probability that the driver is impaired. From what you have said, and from what I’ve read particularly over the last week, many lives are lost because they are skipping a lot of the cars on the highway. I’ve read that mandatory alcohol testing will indeed save lives. I didn’t hear the figure “510 a year” until you spoke, but I had read that it will save a number of lives.

The Hon. the Speaker pro tempore: Is there a question?

Senator Cordy: Yes, there is.

I was wondering about this framework for accountability. In Nova Scotia, we also refer to it as “driving while Black.” That’s of great concern to me. How would this framework function? You talked about a three-year review and about the Human Rights Committee, of which I’m a member, dealing with the whole issue of racial profiling.

Senator Jaffer: Thank you very much for your question. Our Human Rights Committee is looking at many issues. I’m not a member, so I humbly ask that you look at this issue and help set up a framework.

There already is the understanding around a provision for Minister Goodale to set up a complaints process. I’m saying let’s set up a complaints process for three years. It would give people who are affected by this the power to say, “You’re not going to do this. If you do, I will complain.” It will hold our police accountable. By having both sides feel empowered, we will save lives.

The Hon. the Speaker pro tempore: Senator Jaffer, you have one minute left.

Hon. Paul J. Massicotte: Very quickly, how tight is the research between the test you are proposing and the actual benefits, in your mind, and the research shared with many of us? How good is that information?

Senator Jaffer: I’m not a researcher, and I don’t know how good the research is, but I do know I can look in the eyes of my brothers and sisters and say, “I did not forget you.” It’s important to save lives, but I am also trying to protect rights.

Senator Massicotte: Having said that, as you know, the courts will have to interpret all of this to consider if the infringement upon personal freedom is offset by the benefits to society. You have to look at the information available to us and say whether it’s significant.

There is a lot of experience in New Zealand and Australia, but it isn’t clear in my mind, because there are a lot of factors that are varying constantly. Can you comment on that?

Senator Jaffer: That’s why I’m saying do it for three years and then review it. After three years, we will know how effective it is, and we will be able to set aside some money for research and have more information.

The Hon. the Speaker pro tempore: Your time is up, Senator Jaffer.