C-46. This bill presents a number of complicated and novel problems for lawmakers. I will say first that I will vote for this bill at second reading. It should get to committee.

There are many things in here that we need to move ahead with. I hope that my speech can reflect on the areas where the bill will need amendments. It is particularly in the sections that would enable the Governor General to make regulations in the future that we should approach regulation-making with caution.

Let me start by saying what is important about Bill C-46.

It is important that we do more to deal with the carnage on our roads caused by people whose judgment is not only impaired by drinking but who also fail to understand that an automobile is a lethal weapon. Persons getting behind the wheel when they have had anything to drink at all should be as socially unacceptable today as people lighting up a cigarette on an elevator.

Social norms change over time. The social norms once allowed us to give the people around us the present of second-hand smoke without thinking anything about it, but it is now viewed as a reckless activity. One would have thought that with the attention and the hard work of wonderful groups like Mothers Against Drunk Driving, it would be clear to all Canadians as responsible citizens that if they have had anything to drink at all, they do not drive. Unfortunately, we see far too many examples of innocent people, children, or whole families killed on our highways by people who have gotten behind the wheel when they should never have done so. We need to do more to stop the threat of drunk drivers on our roads. This bill would begin to do that. This bill would begin to take some important steps.

Certainly it is important for people to know that they can be pulled over on reasonable grounds and have a breath test applied by a roadside breathalyzer. On reasonable grounds, police officers would be able to stop more people for randomized breathalyzer testing on the side of the road. It is important to note that Bill C-46 would require a police officer to have reasonable grounds to believe a person is committing an offence or at any time in the last three hours has committed an offence as a result of the consumption of drugs or alcohol. Throughout this bill there are requirements for reasonable grounds. Still, the threshold for giving a roadside breathalyzer test is going to be reduced, with the goal of getting more people who are drinking and driving off our roads, and that is important.

The risk here is that we would be conflating the legalization of cannabis with problems of driving and substance abuse, and this is where we need to be careful. In 2014, an astonishing 74,800 cases were reported across Canada of driving impaired due to alcohol or drug use. There were 74,800 cases in a single year reported by police. Of those cases, 97% were alcohol-related and 3% involved drugs. That is not to say that drugs are not the problem, but it is clear that in order of priority, alcohol is the bigger problem as a percentage, empirically, on our roads.

However, then we begin to dive into it. Certainly with the legalization of cannabis, reasonable concerns have been raised. What if people are impaired by having imbibed, smoked, or eaten cannabis and are now under the influence of cannabis and have THC in their system? This is where, as I dive into the evidence, it gets a lot more complicated, because if we are going to base our policies on evidence, it is not at all clear that the same kind of physiological effects occur from imbibing cannabis as from drinking alcohol.

For example, studies by the Pacific Institute for Research and Evaluation, as reported in The New York Times, talk about the estimates from a number of studies. In the case of the dangers of drunken driving, for instance, 20-year-old drivers with a blood alcohol content of 0.08%, which is the legal limit across Canada, had an almost 20-fold increase in the risk of a fatal accident.

When the researchers look at those who have imbibed cannabis, they find that the effect of using cannabis does affect driving, but it is within the same range as the legal allowable levels of blood alcohol. It is not at all clear. According to a 2012 study from the Journal of Psychopharmacology, only 30% of people who were under the influence of THC failed a field test of their ability to show physical coordination and good cognitive reflexes. The effect of smoking marijuana is clearly going to be very different from the effect of drinking and driving.

This is again research from the Pacific Institute for Research and Evaluation. For the purpose of explaining this, I am going to use the term stoned drivers and drunk drivers. They concluded that stoned drivers drive differently from drunken ones and have different deficits. Drunk drivers tend to drive faster than normal and overestimate their skill, whereas the opposite is true for stoned drivers. More worrying, when we are dealing with the application of criminal law, is that those who are habitual users of marijuana can have levels of THC in their systems that do not affect their judgment. The metabolizing in the body of cannabis is very different from alcohol. To spot someone who is drunk, we need to test for ethanol. To spot someone who has been using cannabis, we look for THC, but the THC can be present in the bloodstream days after the last use and when a person is not actually impaired.

As we are going forward with developing tests and deciding when someone is criminally responsible, we need to approach this problem differently. If we find a level of blood alcohol of 80 milligrams of alcohol in 100 millilitres of blood, we know someone was driving over the limit. That is not going to be so easy to figure out with THC.

Those who are studying this recommend some interesting approaches, including in the very useful study by the U.S. Department of Transportation, from February 2015, called “Drug and Alcohol Crash Risk”. I recommend this to other MPs who are looking for data. It is from the National Highway Traffic Safety Administration of the U.S. Department of Transportation. They looked at the adjustment for age, gender, ethnicity, alcohol concentration levels, and so on. They did not find that high risk correlated with drug use at all when they corrected for these other social factors.

What they recommend is fascinating. They say that if we are going to put resources into avoiding people being killed on the road, it would be far better to focus on banning establishments for imbibing cannabis away from home. I want to underscore this, because I do not think anyone has mentioned it in the debate so far. If we are legalizing cannabis, as we are, do not have facilities and establishments that encourage people to get in their cars to drive to a place to have cannabis. Encourage there being no driving involved and create the social norms that say do not drive at all when imbibing cannabis.

It is going to be very hard, and a failing test for the science, to find mechanisms for roadside testing for THC. It is far better to focus on where the threat to life and limb clearly is. It is overwhelmingly people who get behind the wheel of a car after having too much to drink. Frankly, I think a glass of wine or a beer is too much to drink to get behind the wheel of a car, yet we have a social construct and culture that there is nothing wrong with it. I have always loved the show Cheers, with the friendly guy behind the bar. Take a bus there. Take the subway there. We need to change our norms around what is okay, because a car is a lethal weapon.

Finally, I want to hope that when we take the bill to committee, we look at unintentional consequences. If we make it easier for police officers to pull someone over for a breathalyzer, we need to watch for issues of racial profiling. We need to watch for the unintended consequences of additional searches that take place once someone is pulled to the side of the road.

I am not standing against the bill, by any means, but I think these issues are far more complicated than the debate we have had so far tonight. I look forward to seeing the bill sent to committee. I hope that when we look at regulating THC and finding ways to do roadside testing that we do not start with the assumption that if we can find THC in a person’s body they have been reckless in their use of an automobile. Those two may not correlate the way blood alcohol levels indeed correlate toward recklessness and unsafe driving.

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My question for the hon. member relates to what I regard as the fundamental matter before the House at this moment. As members of Parliament we have taken an oath of allegiance to Her Majesty the Queen in Right of Canada. Each of us has taken an oath to uphold the Canadian Constitution. In the case of Regina v. Smickle, the Ontario Superior Court has ruled that these mandatory minimums offend the charter and are likely unconstitutional. It seems to be beyond our ability to grasp that we are passing a law that is in itself illegal.

Does the member have any comments on that problem, for each of us as individual members?

Jack Harris: Mr. Speaker, the member for Saanich—Gulf Islands has raised a novel question as to whether or not there is some question of an oath.

I am saying this as someone who is a lawyer, as is the hon. member. I have read most of the case of Mr. Smickle. It is a rather unfortunate set of circumstances. It is also potentially a unique law where if the Crown prosecuted by summary conviction, the maximum sentence was one year, and if the Crown prosecuted by indictment, which it did, the minimum sentence was three years. There was no possibility of any sentence between one and three years. The Crown was the one that made the decision, not the court, not the judge.

I am not a fan of mandatory minimum sentences, although we did support that in the case of sexual offences because of the national consensus on that. We may have to look again at the aboriginal solutions within communities for that, but we supported that.

I do not think the court said that all mandatory minimum sentences were unconstitutional. That court is a court of first instance.

I do not think, despite what debate we might have about it, that we are somehow bound by our oath not to vote against it. I will certainly be voting against any aspect of Bill C-10. I do not know if we can say the members opposite are voting against something that is definitely constitutional. The member for Mount Royal has said that much of it is constitutionally suspect, but that is really for the courts to decide.

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If you were a supporter of my campaign, you might have gotten to know Fraser for the first time. He spoke at the huge pre-election rally we had at the airport hangar — a businessman in the unlikely company of tree-huggers, poets and musicians.

I first met Fraser Smith at a fundraiser for my campaign.  A mutual friend had dragged him along.  He made sure to tell me he was a strong Conservative and long-time friend of Gary Lunn.  But that didn’t stop him from bidding on items at the Silent Auction and having a grand time.  I was an immediate Fraser fan whether he would vote for me or not.

Over time, we came to know each other better.  I knew that he had played a role (a significant role) in starting the Reform Party. He had worked closely with Preston Manning. He continued as a staunch Conservative, despite the changes within that party.  He was a big man with a heart just as big.  Kindnesses to many within our community were offered quietly and at the perfect moment.  Young people he mentored, kids who needed a helping hand, were all lucky to have Fraser throwing them a life line.

His road to Damascus conversation from Conservative to Green was dramatic.  Things had been bothering him in government policy.  The “tough on crime” agenda, building new prisons, made no sense to him.  In one of our Rotary meetings, we had a speaker talking about restorative justice.  Fraser started his question, “I am a staunch Conservative, but…” And that “but” led to a diatribe about how little sense it made to build more prisons when the crime rate is dropping.  He found Canada’s prohibition laws against cannabis to be wrong-headed and ineffectual.  And when he heard that the government wanted to make it an offense with a mandatory minimum prison sentence of six months in jail for possession of more than five marijuana plants, he was deeply troubled. 

At one of our Green Party events, he came walking toward me with a steely and determined look on his face.  His generally warm and generous smile was displaced by a storminess that made me think he might be angry with me for something.  Instead, he opened his wallet and withdrew two cards.  One was plastic, just like a credit card.  With a picture of the House of Commons in full colour, it read “2009 Leaders Circle Member” with the big blue “C” of the Conservative party logo.  The other displayed his membership in the Conservative Party of Canada.  It was plasticized paper.  He then proceeded to try to rip them up.  They didn’t rip.  “Here,” he said, “you keep them. Give me a membership form. I am joining the Green Party.”  And the he pulled out his chequebook.

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That was just the beginning.  He wrote his entire client list and urged them to switch whatever previous political allegiance they had had to support my bid to be the MP for Saanich-Gulf Islands.  He decided we needed more billboards on the Pat Bay highway, so he registered himself as a Third Party and had big signs, (white background with green lettering), saying “Canada needs Elizabeth May in Parliament, but only you can elect her.”  He took out a two page ad in the Seaside Times to explain why he was voting Green.  He put himself and his reputation on the line, risking losing friendships of many years.

I write these words, tearing up, sitting at my desk in the House of Commons.  I have the cards Fraser tried to rip up on my desk. I have carried them with me as a sort of good luck piece ever since he gave them to me.  I will keep them in my desk inside the House of Commons from now on.  Fraser Smith played a significant role to elect me to the House of Commons.  I will work every day to improve decorum and respect, dedicating my service to his memory.

Ironically, at this moment, we are debating the Omnibus Crime Bill.  I have notes in front of me to point out, when I next speak, that the mandatory minimums for growing cannabis would be four years more than for sexual assault on a child. I write this as the government just succeeded in passing a motion to limit debate on the very bill Fraser found so offensive.

I owe a lot to Fraser Smith. So do many people in my community.  On Sunday morning September 25, he died unexpectedly from complications that may or may not have been related to cancer he was also fighting.  He leaves his beautiful and devoted wife, grown son and daughter and grandchildren. 

Let me leave you with the image I will hold in my heart of this wonderful man.  A man built on the basic principle with which God made mountains, strong, large and inspiring, with greying curls framing a face alive with mischief.  A huge smile on his face, a glass of red wine in one hand with the other holding a bottle to make sure everyone else’s glass was full.  Fraser Smith will be missed  — for a very long time.

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