Appearance before the Standing Committee on Public Safety and National Security (SECU) on Bill C-226, An Act to amend the Criminal Code (Impaired Driving Act)

September 29, 2016
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Introduction

Thank you for the invitation to appear before you today on Bill C-226, the Impaired Driving Act. I am accompanied today by Patricia Kosseim, Senior General Counsel of my Office.

I would like to be clear from the outset that I fully understand the seriousness, societal impact and clear dangers of impaired driving.  Impaired driving affects far too many Canadians each year and is indeed a grave social problem.  

At the same time, the legislation you have invited comment on is multi-pronged and complex.

My remarks today are intended to offer a framework, drawn from Charter jurisprudence, not with a view to predicting the constitutional fate of the Bill, but as a lens through which to analyze relevant privacy policy questions.

Proposed Framework for Analyzing Relevant Privacy Issues

In upholding random vehicle stops for the purpose of police questioning to check for sobriety, the Supreme Court of Canada has taken into consideration several factors, including:

• the compelling state objective of ensuring highway safety;
• the limited purposes connected to that objective and grounded in appropriate statutory authority;
• the invasiveness, effectiveness and proportionality of the police activity; and,
• the reasonable expectations of the individual as informed by the context.

For the purpose of analyzing the bill before you, while the state objective of ensuring highway safety is certainly compelling, let me address some of the other important policy considerations such as random breath screening and disclosures of various test results.

On random breath screening

As you will note, subsection 320.27(3) of the Bill introduces a new ability for police to require individuals operating a conveyance – whether in motion or not – to immediately provide a breath sample on demand for random screening using an “approved screening device”, where police have an approved screening device in their possession.

Currently, this type of breath screening test can only occur where the police have reasonable grounds to suspect that an individual has consumed alcohol (per Criminal Code subsection 254(2)).

In assessing whether it is reasonable to move away from the suspicion standard, I would suggest that Parliament should consider the following factors:

First, how invasive would a new state power be, compelling everyone to provide a breath sample on demand?

While more intrusive procedures are certainly possible, for instance, the taking of a blood sample, I would suggest that there is a level of intrusiveness in the mandatory procedure suggested, particularly for individuals who are not suspected of any wrongdoing.

Second, how necessary is it to move from the suspicion standard to random sampling in order to reduce the occurrence of impaired driving? To what extent has the current system proven effective or ineffective? What is the evidence for this? Is the current system so deficient as to warrant this more intrusive procedure?

Third, what does the experience of other countries show, from an evidentiary perspective, as to how much more effective the proposed system would be?

I do not have the evidence required to answer these questions, but I do think these would be relevant questions to ask of those who are the proponents of this bill.

Furthermore, I would be remiss if I did not remind members of the privacy risks inherent in collection that is overbroad and could potentially open the door to disproportionate targeting.

Broadened sharing of test results

The other substantive privacy issue I would like to raise is the broadening of purposes for which test results and analysis of bodily samples can be shared.

Subsection 320.37(2) permits the sharing of the results of any evaluation, physical coordination test or analysis of a bodily substance for the purpose of the administration or enforcement of any federal or provincial Act.

Currently, the use and disclosure of this type of information is restricted to specific Criminal Code, Aeronautics Act or Railway Safety Act offences, or administration and enforcement of provincial law. 

The Bill clearly widens the potential uses and purposes for which such results may be put by authorities.  While I began my testimony by agreeing that ensuring highway safety is a compelling state objective, the same cannot be said about the administrative objectives of all other federal or provincial laws.

In considering this broader sharing, I suggest that you examine whether the objectives of these other laws for which results can be shared are sufficiently important to justify the sharing of sensitive, state-compelled personal information. I further suggest that sharing should be limited to those specific laws that meet that standard.

Conclusion

In summary, I would encourage Members to consider the fuller privacy implications of random breath screening and the broadening of purposes for which results can be shared using the analytical framework proposed. 

Thank you for inviting me to provide this committee with comment – and I look forward to your questions.