Bill C-16: An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts

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Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness

June 7, 2005
Ottawa, Ontario

Opening Statement by Jennifer Stoddart
Privacy Commissioner of Canada

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Good morning. Thank you for inviting us to appear before this Committee to comment on Bill C-16 which proposes amendments to the Criminal Code as it relates to impaired driving. This is an issue my Office has not had an opportunity to comment on in the past and we welcome the invitation to raise our concerns about the proposed amendments and its impact on the privacy rights of Canadians. With me today is Patricia Kosseim, our General Counsel to assist in addressing any legal questions.

I would like to preface my comments by stating that my Office acknowledges that there is a problem of impairment and road safety in Canada. Almost 3,000 people are killed every year in Canada in motor vehicle accidents and we know that alcohol plays a role in a significant number of these accidents. There is also some evidence that drug impairment plays a contributory role in motor vehicle accidents, particularly when combined with alcohol.

We support the intent of this Bill to make our roads safer and to protect Canadians against the effects of impaired driving. However, as we will discuss we have some concerns about the way in which this Bill proposes to address the problem.

Before discussing the specific provision in the Bill I would like to step back and comment on the larger societal problem that underlies this Bill. While we have a tendency to associate the terms "drugs" with marijuana, cocaine and other illegal drugs, many prescription drugs and even over the counter drugs can affect our motor skills and reduce reaction times. Most of us, at one time or another, take drugs that could affect driving performance and I think that it is worth keeping this in mind as this legislation moves forward.

Provisions of Bill C-16

The bill proposes a three step process to determine drug impairment:

First, if a peace officer has reasonable grounds to suspect that a person operating a motor vehicle has taken drugs the person can be asked to perform certain roadside physical coordination tests.

Then, based on the way in which the person performs these tests, if the officer has reasonable grounds to believe that the person is impaired the officer can demand that the person submit to an evaluation conducted by a qualified Drug Evaluation Expert at a police station.

Finally, based on this evaluation, the officer can demand that the person provide a sample of either oral fluid or urine or samples of blood to determine whether the person has a drug in his or her body.

In general terms, this is similar to the process that is used to assess impairment by alcohol with one significant difference. The difference, of course, is that a person suspected of alcohol impairment would be asked to submit to a breathalyzer test. A breathalyzer test is much less intrusive than requiring someone to provide a bodily fluid. As well, a breathalyzer test is a much more accurate way to measure impairment.

Assessing drug impairment

This goes to the crux of our concern about the Bill. While the use of approved breathalyzer tests as a method of measuring the level of blood alcohol has withstood numerous legal challenges, and the relationship between blood alcohol levels and impairment is well-established, there is no generally accepted objective method of assessing drug impairment.

Nor is there a consistent established correlation between concentration of a drug detected in one's system and impairment.

A 2003 Department of Justice consultation document recognized the serious limitation on drug tests.

"Forensic scientists have advised that drugs, unlike alcohol, are often extremely difficult to link to a particular concentration level that will cause impairment in the general population of drivers. Moreover, analysis for some drugs in certain bodily fluids may simply indicate drug use many days, or even months, in the past."

The 2002 Report of the Senate Special Committee on Illegal Drugs also emphasized that the presence of drugs does not necessarily mean that they caused the accident:

"Simply finding traces of cannabis in drivers involved in accidents is not necessarily a sign that its use was the cause of the accident."

Proportionality and justification

These observations raise serious questions about the effectiveness and the proportionality of the measures that are being proposed.

As Privacy Commissioner one of my mandates is to oversee the Privacy Act that governs the collection, use and disclosure of personal information by government departments and agencies.

One of the fundamental fair information principles underlying the Privacy Act is that personal information should not be collected unless it can be used to achieve the specific purpose for which it has been collected. Forcing people to provide bodily fluids is intrusive; the intrusion is compounded when the samples cannot, with confidence, be used to measure impairment.

Bodily fluids can be used to detect past use; but past use does not always prove current impairment. Collecting and testing bodily fluids may simply result in the collection of potentially stigmatizing personal information without furthering the goal of detecting drug-impaired driving.

Protecting personal information

If, despite the concerns I have raised, the government decides to move ahead with this legislation, the bodily fluids that are collected and the results derived from the tests of these samples must be adequately protected.

For example, will information about a conviction for impairment caused the mixture of alcohol and drugs, be listed on police computers that will be accessible to other police forces in Canada or abroad?

Given the sensitivity of the information and its potential to reveal the use of non-prescription drugs, even if such use did not result in impairment, it is absolutely essential that the use and disclosure of this information be tightly controlled and that it not find its way into databases that are used for non-law enforcement purposes or shared with other countries that may have a lower standard of privacy protection than our own.

It is imperative that impaired driving investigations not be used as a "back door" to identifying users of illegal drugs and illegal prescription drugs.

We are pleased that the legislation limits the use and disclosure of such information to impairment investigations. However, the Bill does not contain any provision regulating the period of retention of any bodily substance taken under the impaired driving provisions. This should be rectified.

Recommendations and Concluding Remarks

I want to be perfectly clear. Drug-impaired driving is already a Criminal Code offence that can result in penalties up to a maximum of life imprisonment it if causes the death of another person. I am not suggesting that drug-impaired driving should not be dealt with forcefully.

Drug-impaired driving is a real problem. It is also a complex problem that calls for a thoughtful response. The government should explore a multi-pronged approach aimed at educating the public about the causes and consequences of drug-impaired driving coupled with research into the effects of drug use on performance and impairment.

If the government chooses to proceed despite concerns, it should at a minimum include a clause mandating a three year review of the Act. This would provide assurances to the Canadian public that the legislation will be reviewed while provide the opportunity to collect sound evidence about the extent of the problem and the efficacy of the measures that have been introduced to address the problem.

As I have mentioned earlier, I also recommend that the government include a provision regulating the period of retention of any bodily substance taken under the impaired driving provisions.

In closing, I would urge the Committee to carefully consider privacy concerns and to ensure that any solutions that might be adopted to address the problem of drug-impaired driving are clearly justified so there is not a continuing erosion of the protection of our sensitive personal information.

Thank you very much for your time today. I would be pleased to take your questions.

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