I call the Standing Committee on Justice and Human Rights to order. The committee, of course, will be proceeding through a clause-by-clause review of Bill .
The committee has before it, from the Department of Justice, Mr. Hal Pruden, counsel, criminal law policy section; and Mr. Greg Yost, counsel, criminal law policy section.
We may as well get right into the clause-by-clause review. I know that some amendments arrived late. I trust that everyone has a copy.
Mr. Bagnell has a point of order or a comment to make.
I just have two quick questions.
One of them is related to the DRE procedures. Is there anything in the act or regulations related to the certification or retesting or anything of DRE officers?
Secondly, one of the police witnesses suggested that this bill is light years ahead of that in any other jurisdiction in the world. Because it's being used in the States and everything, I thought this was to bring us up to be equal with some of the the other jurisdictions where it's working well. I just want to make sure I know where this is really breaking new ground and how it is revolutionary.
We have Corporal Graham here, who runs the program for the RCMP, and he was the one who said we would be light years ahead of other countries. I'm certainly not an expert on how they have done this in the 46 U.S. states that have brought this together. Their constitutional arrangements are somewhat different from ours, and they may have had to rely upon the implied consent you give when you get your driver's licence, to say that you will do these various things. We will have it entirely in the code.
With respect to regulations, these regulations do not exist now, but for a person to be certified, they will have to have completed the program, and all of those things will in fact have to be done in regulations. Mr. Pruden and I have optimistically scheduled a meeting with the drafters of regulations, in the expectation that this might fly, in order to go through all the material from the International Association of Chiefs of Police and to begin the process of putting that into Canada's constitutional framework and getting the regulations.
I do know that recertification is required of the officers, and I believe it's every two years. I'm looking at Corporal Graham, and he isn't jumping up and down, so I believe I'm giving you accurate information.
Mr. Chair, I will move government amendment 1.
What this does is limit to the more serious drugs in schedule I, II, or III of the Controlled Drugs and Substances Act when dealing with the section on possession of drugs in a vehicle. It limits that offence to possession of drugs in a vehicle if they are under schedule I, II, or III of the Controlled Drugs and Substances Act.
So it's a narrowing of that offence.
Mr. Chair, I have a question I want to put on the clause. And we're scheduled to be here for about three hours, so we'll get through this.
I wanted to ask the Department of Justice, whichever witness is appropriate, to answer this. If clause 2 were not to be adopted, if it were not to be found in the Criminal Code, can I assume that the Controlled Drugs and Substances Act would provide the same criminal prohibition for possession of any one of these drugs at any place, including if the person is in a motor vehicle, or a train, or an aircraft, or a vessel? May I assume that? That's my understanding.
My question may seem similar to Mr. Lee's, but I want to be sure that you understand what I'm getting at. The question is for Mr. Yost. You are the victim, this morning.
Regarding amendment G-1, which the government has moved, and you have a copy of it in front of you, if we remove the words “substance included in Schedule I, II or III of the Controlled Drugs and Substances”, the police officer will have far more options. A person could be incarcerated even for a medication. On the other hand, if we limit this to drugs included in Schedule I, II or III, that is to say, to hard drugs, aren't we limiting the police officer's powers?
Mr. Chairman, I want to make sure I understood this.
Parliamentarians are already been asked to be bold when it comes to this bill, in so far as we have been told, generally speaking, that when it comes to drugs, the studies are not as conclusive that they can lead to impairment. There is no effective detection technology, but we understand that there is a responsibility to society, we see that. But I really don't understand what this clause is doing in the bill.
I have two questions for you. First of all, at the present time, under the Controlled Drugs and Substances Act, the possession of drugs in a vehicle or in another place is already illegal. So I wonder what this clause adds, and in particular, what link there is between possibly having prohibited drugs in the glove compartment or in the back of a car and impaired driving. There is no such link between the two, even though from a social policy point of view you may not be in agreement, of course. Other legislation already covers this.
Secondly, is cannabis in Schedule I, II or III of the act?
I am trying to understand what additional tool this would give police officers, since they already have all the tools they need to take action in the case of illegal possession. I really think that this clause 2 certainly goes too far, both in terms of jurisdiction and in terms of consistency.
Please be specific. What more will this give police officers? This is what we want to understand. Where is cannabis? Is it in Schedule I, II or III of the Act?
I have just a question.
While I am a lawyer, I never practised criminal law. I do not have a driver's permit. I don't drive. Therefore, I'm not familiar, except though the work that I've done in this committee on this particular bill.
Given that the government wishes to bring in this special provision with regards to the controlled substances in schedules I, II, and III, where in the Criminal Code is there a similar provision for alcohol, for possession of alcohol in the car, creating—
I was just mentioning that for alcohol, provinces do have driving offences under their provincial legislation, so if someone is in possession of alcohol, they are committing the provincial offence. Yes, it's quite correct that we did not, in this bill, propose a change that would criminalize the alcohol in possession, which is already dealt with by the provincial governments.
So there are no provisions creating a criminal offence in the Criminal Code for the possession of alcohol in any part of a vehicle, knowingly, if I use the expression? There's nothing that says that “Everyone commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or railway equipment or has the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it is in motion or not, while knowingly and without lawful excuse having in his or her possession, or in any part of the vehicle, vessel, aircraft or railway equipment” alcohol? There's nothing like that in the Criminal Code, according to what you've said, for drugs. You've already got the Controlled Drugs and Substances Act.
Why then does clause 2 amend section 253 by adding proposed subsection 253.1(1)?
Thank you, Mr. Chairman.
As a criminal lawyer, I have read this clause. It is redundant, and above all, it will do harm, because a driver could lose his driver's licence and get a criminal record if he doesn't know that a passenger or a hitchhiker he has given a ride to is in possession of drugs. Furthermore, pursuant to the American provisions, he would be totally banned from travelling to the United States.
This is worse than what was provided for originally. Despite the amendment to section 253, a driver or a person having the care or control of a motor vehicle who is found guilty of an offence may be banned from the United States, even if he had nothing in his possession. He would be found guilty.
Do you agree with me?
Yes, I'll move government amendment number 2.
Chair, as it's currently written in this section, an officer has to suspect that a person has been driving while having alcohol in the body in the previous three hours before the officer can make a demand for a roadside screening test.
As amended by G-2, it would allow for a demand where there's suspicion of alcohol in the body and suspicion that the person drove in the previous three hours.
I have moved government amendment number 2, and I'd be glad to see everyone support it.
I'm not finding that we're hitting the nail on the head here in describing why we need this amendment. As I read the original provision, before it's amended here, it simply says that the person is suspected of driving while they had drugs or alcohol within the previous three hours. The amendment separates the two. First of all, at the time of the arrest or the encounter, the person had drugs or alcohol in the blood, and then within the previous three hours they drove, not necessarily having drugs or alcohol in the blood. You might have driven two and a half hours ago, and you might have taken the drug or the alcohol an hour ago, but the person would still be liable to at least the testing procedure here. This is a testing procedure; this is not an offence section.
Correct me if I'm wrong, but we have a scenario where a citizen legally drinks or legally consumes a drug, or even illegally consumes a drug. Sorry, let me reverse it. A person legally drives unimpaired and then consumes alcohol or a drug. They are, by virtue of this amendment now, subject to the testing procedure even though in terms of their driving they really haven't done anything wrong. Is that the intent here?
The intent is certainly to separate the two suspicions. This is of course in the context of an investigation for impaired driving. I have some difficulty contemplating a situation in which there has been no strange driving or anything. The police show up at your doorstep two and a half hours later, smell alcohol, and ask you to do an approved screening device, and then they'll try to get you into a car.
In the real world, there will be an accident. There will have been some form of driving that has drawn the attention of the police, and then they will find reason to suspect alcohol or drugs in the body. That's what we're trying to do. We're trying to make sure those two suspicions are there.
You are correct. In the strict reading of the new provision, I guess, the scenario that you have put out is a theoretical possibility.
I have a bit of a problem with this amendment. It seems to me that you can already do what you want and that this would only add options for abuse.
My understanding of the way you have drafted Bill --and I'm not sure why you'd bring an amendment later--is that if the police suspect a person has been impaired driving, they can run them through the tests. The amendment says they just have to suspect that they have had alcohol and that they drove a car. There's a good likelihood in modern society that anyone has driven a car within the last three hours. He doesn't have to suspect he was driving the car while impaired, which was your original draft; he just has to suspect he was driving, which could force almost anyone into these tests once they've had alcohol. That doesn't seem to make sense. It seems to me that could be open for abuse. The way you have it written in the first bill, the police officer can subject a person to the test if they think they were impaired driving.
As well, I'm not sure why you added this after you drafted the bill.
Under both versions, the original Bill and the amendment, the officer must suspect alcohol in the body. The officer, at this screening level, does not have to have reasonable belief that there was impairment. It's strictly on a suspicion of presence of alcohol. It's an extremely low threshold already.
As Bill C-32 was first drafted, it says the officer had to have the suspicion...while the person was operating the motor vehicle. The amendment will give them more time. They will be able to look back in time if the person has been taken off to hospital. That's what this is meant to accomplish.
Under the existing Criminal Code, if they've gone off to a hospital and the officer doesn't have the reasonable and probable grounds to believe they've committed the offence, they can't use that lower threshold to get a screening-level demand. That is what this is attempting to accomplish.
I was going to suggest there's another possible scenario. You have the car in the ditch or the accident or whatever, and the person is okay; he's out of his vehicle. The police arrive half an hour later, and he's drinking a beer. This may be because he's trying to avoid any suggestion that...he's going to screw up the evidence, but he's drinking a beer.
So now you have the alcohol, and within the last three hours he's been driving. The screening device would then provide.... If he fails it really badly, you take it to the proper test, the approved instrument test. The guy's now blowing 0.18; he's in the reverse two-beer defence. He's taken one beer, it'll never have gotten him to 0.18, so you could extrapolate. The police officer arriving at the scene would not at that moment have been able to make the immediate connection between the two. He might be able to do it a little bit later.
I admit, though, that we were thinking the hospital scenario and we're making these up as we go along.
Some of my colleagues mentioned the fact that section 256 already exists, so why is this particular provision or amendment being proposed by the government? I've just taken cognizance of section 256. Section 256, if I'm not mistaken, is to obtain a warrant to obtain blood samples where there are reasonable grounds to believe the person has, within the preceding four hours, committed an offence under section 253 and the person was involved in an accident resulting in the death of another person or in bodily harm to himself or herself or to any other person.
So section 256 would not apply in any case where we're talking about an infraction--if it's the highway safety code, for instance, the example that Mr. Yost just gave. The car's in the ditch. The car may be scrapped. The driver is unharmed. No one else was involved in the accident. The police officer shows up, smells alcohol on the breath, and the guy or woman has a beer in their hand. Section 256 doesn't apply. Section 256 only applies if there's been death or bodily harm.
So if the driver or the passengers or the other driver, if there's another car involved.... If nobody's injured, you can't get a warrant for a blood sample. Am I correct?
I'll make one last try, because I think I'm the only one against this amendment.
Let's assume everyone comes home from work at five o'clock. The police come to your house and do a test at six o'clock and you have alcohol in your blood. Under this amendment, they would be allowed to test you, because all they have to suggest is that you're driving--most people drive at that time to get home from work--and that you have alcohol in your blood.
The way it was originally written, you have to also suspect they were driving while impaired. Is that not the case? So this would leave a lot more people open to be tested, because all you have to assume is that they're driving a car, not driving while impaired. Is that not true?
This amendment requires suspicion; it is based on what is already in the law for alcohol. The two changes that are being made in it are extending to three hours and, of course, adding the physical sobriety tests that are necessary for the DRE program. As it is currently written, the police officer would have to have that suspicion that the two things were occurring simultaneously. As proposed in this amendment, the police officer would need to have the suspicion of the driving within the last three hours and suspicion of alcohol in the blood.
I will admit that in the rather strange circumstance of a police officer arriving at your house at 5:30 and asking you if you'd driven, and you saying “Yes, I drove home”, and you've got a glass of wine in your hand that you'd been sipping at, he presumably, under the strictest wording, could do this, but I have difficulty figuring out why.
As it is currently written, the section stipulates that:
||(2) If a peace officer has reasonable grounds to suspect that a person has in the preceding three hours had alcohol or a drug in their body while they were operating a motor vehicle or vessel—
The driver must meet two criteria: on the one hand, that he drove in the previous three hours and, on the other, that he drove after having consumed alcohol or a drug. We divided the amendment by saying that the peace officer has grounds to suspect that an individual has consumed alcohol and that, in the previous three hours—I think that the end result is the same. In English, we are taking out the words “while they were operating” and in French, we are replacing the words “alors qu'elle” with “et que”. It comes down to the same thing.
I have a point that I'd like to ask either Mr. Pruden or Mr. Yost about. This is a real live scenario. Mr. Lemay likes real live scenarios.
A driver going down the road in mid-afternoon on a Saturday strikes a young boy who's crossing the road outside the crosswalk. He hits this boy, kills him, and throws his body forward. He gets out of the car to go and look at that body and staggers back to his car. There are various witnesses around to say that the man was behind the wheel of that car. And he then takes off; he runs over the boy again and takes off down the street and disappears. The police end up with a licence plate, which they then circulate. They track him down and are able to determine that at his own house he was in fact drinking when they got there.
For this particular section, how would that apply to the police officer who lands at the house of this individual?
If I may, Mr. Hanger, obviously the first improvement in this is that we have the three hours instead of having the current law, that it's the person while operating. Under what we now propose, the police officer would have, in my view, a clear reason to believe that the person has alcohol in their body. The officer would also presumably have, on the basis of witnesses, the evidence of the three hours before.
Under what we propose, that would be sufficient for the approved screening device, which may or may not lead eventually to a charge of impaired driving causing death, depending on what comes out of the evidence in trial, as you know, with regard to the staggering out of the car. It would be dubious, under the wording we have in the bill now, that the police officer would be able to say he had reasonable grounds to believe the person had alcohol while they were driving. Unless there was some witness who had smelled the alcohol there at the scene, I don't see how they could do it.
Now, in the scenario you've given, it would be recognized that it would be very difficult to establish impaired driving causing death under any circumstances, just because of the time and the intervening drinking.
Liberal amendment 1 would also amend clause 3, which we just amended with government amendment 2.
This would amend in order to ensure that when the drug recognition expert is carrying out the second phase of evaluation of someone's sobriety, determining whether or not the individual is impaired, in particular by drugs, a video recording of said evaluation would take place. The government in Bill already states, under subclause 3(3), proposed subsection 254(2.1), that on the road where the standardized roadside sobriety test takes place:
|| a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).
My amendment would require, at the police station when they're undergoing the second phase of the evaluation, that the evaluation be recorded by video. And given that all or most police stations are already equipped with video equipment for interrogations, etc., it would certainly not be a hardship.
I think we had heard testimony that this would be, on a cost basis, a practical basis, and an evidentiary basis, a bit of a disaster.
To me, there's a big difference in police stations...and that's what we're talking about. They'd have to physically have the equipment in place at these stations to record this. You'd have to have a technician to conduct the recording. In my view, there's a big difference between an interrogation that's recorded--you can see what's going on, you can see the dialogue, you can hear the conversation--and something like this that's recorded, a scientific test.
The bottom line is that we heard evidence that this would be extremely problematic. I can just see, perhaps during a trial, where it's going to be a video itself that comes into play. We'll have testimony on the video itself--the video is too grainy, someone walked in front of the camera at a certain critical moment, and so on. We heard in testimony that these tests are in a very controlled environment--they're scientific, done by extremely experienced people--and that there would be a huge cost to implementing this.
For those reasons and probably more, the government doesn't support putting this burden on local police departments throughout the country.
First of all, given that on the roadside you do not have the technician with the video equipment to video-record the performance of the physical coordination test, the arguments Mr. Moore is making about a video recording in a police station are not pertinent. First, they would be pertinent for video recording on the roadside. Second, most police stations already have the capacity to do video recording, so it would not be an undue burden.
Out of all the witnesses we heard from, we only heard one witness say that he didn't think a video recording of the drug evaluation at the police station by a drug recognition expert would be useful or that it would add anything. My understanding is that he did not say it would be a negative thing. Second, even if most of the testing is checking the eyes, the blood pressure, and so on, in many cases the individual who has been detained will be speaking. Given that the video recording equipment in the police stations is there for purposes of interrogation, it means they already have the capacity for sound. That's part of the reason they video-record interrogations.
So there would be an added element whereby if there were no video recording of the physical coordination test conducted at the roadside at the point of interception of the vehicle and the driver, you would have that additional element that might in fact further the case of the police officer, and possibly the Crown, should charges be brought. Because you would have the demeanour of the individual who's undergoing the test. In some cases, that individual will have to get up and move for some of the testing. Therefore, you will have filming of the coordination of the individual, the speech of the individual, and the entire demeanour of the individual. It will not take away from the proof; it would actually add to it. In my view, it would actually enhance the ability of both the officers and the Crown to make the case that the individual was impaired.
On a point of order, Mr. Chairman, it's the frustration that I'm feeling. I listened very carefully to Corporal Graham when he testified the first time on this issue. Part of my frustration is that we're, in my opinion, rushing this bill through. I would have wanted to hear from other witnesses.
I fully respect Corporal Graham. He testified extensively when we had before us in the last Parliament. He's a very impressive witness. But he does come, I would say, with some ownership in the program. There's nothing wrong with that at all, but I believe there are counter opinions we could be hearing.
So if we hear him today, are we going to call other witnesses to come back? For instance, I don't know if they've tried to do this anyplace else. As was suggesting before you ruled her out of order, Mr. Chair, there may be some amendments to this so that, for instance, when the testing is going on in the darkened room, the videotaping wouldn't have to take place then, or maybe there's a way of doing it using other types of light.
In any event, I'm concerned that we simply hear from Corporal Graham at this point and then not hear from other individuals who also testified that in their belief the videotaping was practical in the station.
Madam Jennings, someone else will have to bring that forward.
Hon. Marlene Jennings: Fine.
The Chair: Getting back to the corporal and the consensus here in the committee, the corporal could be considered a government official as far as his presentation is concerned, if need be.
Madam Jennings' subamendment to her amendment would have to be presented by someone else, maybe within the Liberal ranks here.
What's the feeling of the committee now?
Corporal, would you take a seat at the table, please?
Do you want to question him?
Some hon. members: Yes.
The Chair: You can treat him as any of the other officials here.
Corporal, you've been listening, and I gather you can respond to the concerns about the technology at the various stations, etc. Perhaps you would like to make an opening statement, and then there will be some questions coming forward.
I am not aware of any jurisdiction that videotapes evaluations. There are a number of problems with trying to videotape them. First and foremost, for any of the police stations that have cameras, the cameras are fixed, so they're going to catch a specific angle. The evaluation is done in such a fashion that, unless you actually position the person to catch that camera angle, you're going to miss things. And regardless of whether you can position them properly, it's still a two-dimensional view.
We use videos for training. The videos are done using hand-held cameras by professionals who have to move with us. They have multiple angles, multiple cameras, and then they put them together so that they are of some use to us for training purposes, and even at that, there are things missed.
When I was stationed in British Columbia, we had in-car cameras and we had the same problem with them. Again, they're fixed. They don't have any depth perception. As a result, evidentially, they have little value in court. From my perspective, I certainly think that aside from the cost of installing cameras, they miss more things than they would capture. No one has that capability right now.
It seems unfair, Mr. Chair, to allow Mr. Moore, by his point of order, if you accept it, to tell Mr. Comartin what to ask.
We've opened the door by consensus to have this witness back. So as a point of order, it just seems wrong for Mr. Moore to--
Mr. Rob Moore: We opened the door on this--
Mr. Brian Murphy: --first of all, interrupt me, because I can speak as loud as he can.
I'm a substitute on the committee today, but I've had a lot to do with police forces in terms of working on human trafficking, and our own son is with the RCMP.
I was listening to this amendment and I have to tell you that in a lot of these places, from what I'm hearing from a lot of the police officers across the country--for instance, up north--they don't even have cell phone reception, let alone money for a video camera. The situations there are detachments with only one or two men. So who do you get there to run a video camera, if you have the money to have a video camera and if there are enough of them on duty up there to manipulate the camera and take care of the criminal they've apprehended? The capacity to do the video recording, to me, just from my knowledge as a lay person, is just nil in these small places.
Ms. Jennings talked about blood pressure, and I wasn't aware that inebriated people's blood pressures were taken. From what I can tell, it just seems to be the smell of alcohol and the way the person walks and talks and receives the police when they try to apprehend them.
So regarding this amendment, apart from the fact that it's going to be a big cost factor and we have to make choices about where we put the money, do we put that into video cameras or boots on the ground trying to fill these detachments?
Could you take some time, please, to elaborate on it in more depth in terms of how you see it as a police officer on the ground?
With the drug evaluation, blood pressure is a key component because of the seven drug categories. They do cause the blood pressure to react. The clinical indicators are different. For alcohol, because there's a presumptive level, of course, there's a breath sample taken, and that suffices.
The capability to do the videotaping in small centres and, again, in large centres is not there. The cameras that are used for videotaping interrogations are fixed. The person sits in a position where they can be viewed. We capture more than trying to write it down. We've gone from a tape recorder to videos. But because the person is not going anywhere, it's an effective and efficient way to do things.
With the evaluation, I was asked by a colleague when they read the blues on this...the analogy I gave was an instant replay in sports. Professional sports have spent millions of dollars. Look at hockey. They've put cameras in a position to cover a goal net to see if the puck went across, and they're still not getting it right. They're looking for one thing, with cameras focused right on that little area.
We're dealing with an evaluation where we cover 15 feet with the walk and turn test. We are in a dark room, as was pointed out by Mr. Yost, so you would have to have an infrared camera that is portable so that you could capture the eyes. In order to take the blood pressure, it depends on what you're looking for. If you want to watch how the blood pressure is actually taken or if you want to watch the gauge to see what the readings are, the camera would have to be right up close in order to read that.
We are in the process of redoing the videos. We're having some significant issues with the amount of time it's going to take, simply because of the different angles that we have to have to capture everything, and then to put it together. I think if you were going to videotape for court purposes, you would have to have the same multiple cameras that even with the large centres are not practical.
One other thing is that police officers go through an awful lot of training. The professionalism of a police officer seems to be higher than—it should be—the ordinary citizen probably in knowing what to look for. Could you talk a bit about the professionalism of the police officers, because we need to have a need there? If there's a need for video cameras and the police officers can't do it, the need has to be there.
Are not the police officers trained very highly to look for and see all the characteristics that they need to see and record it in such a way...? Their professionalism would be more reliable than a video camera like this, in a sense, would it not?
Videotaping is a common practice. It's used for all sorts of evidence. You only need one camera to get some additional evidence. You've admitted it will add some additional evidence, and that's all you need, some more evidence, in something so serious. The expert witnesses suggested that we need this, even for taking blood pressure. It shows how many times, if they had trouble getting blood, etc.
But that's not my question. My question is this.
I didn't totally understand all the 12 steps in the DRE. Are some of those steps the same as the ones at the roadside? Are there physical tests in the DRE, or replications of the roadside physical test, such as standing on one foot or walking a line? Therefore, if you videotaped the DRE, would you be videotaping some physical steps? I don't understand what all the DRE steps are.
I felt this way before, but upon hearing more testimony.... In trials you have testimony from psychiatrist and psychologists, and we don't demand that it be videotaped. We're not psychologists, and in the same way as a psychologist might make an evaluation based on something someone said, it might not resonate with someone who is listening to it themselves in a courtroom. That's because we're not psychologists or psychiatrists, and in the same way, we're not drug recognition experts. Drug recognition experts, due to their training, might pick up something on videotape that others might not see and say, “I don't see that their pupils are dilated.”
On the practical side and the policy side, I think we had it right in the first instance. This would open up a whole quagmire that would overtake some of these trials and turn the focus away from the testimony of the drug recognition experts and onto the videotape, the quality of the videotape, and the angle of the videotape.
I don't know if there are any other questions, but I think we should move on.
Mr. Chairman, I will be very gentle with the witness, and I hope that he will have enough money for his retirement. I have been following the news, and things don't look good. But that is not what I want to talk to you about.
Do you agree with us regarding the principle of the quality of evidence? According to Ms. Jennings, the purpose of the amendment is to facilitate the administration of the evidence. The second witness told us that evidence has more weight when it is supported by a video, before the courts.
Does your hesitation lie in the fact that this technology is not mobile enough to record the entire process or is it rather that you don't agree with the principle? If you can convince us that this principle is not desirable, that's one thing, but if the technology is not sufficiently adapted to the process, that is another thing altogether. If police stations don't have this technology, this doesn't mean that they won't have it in a year. The committee must determine whether, in principle, videos are desirable. Do you believe that the evidence should be supported by a video, as Ms. Jennings is proposing?
Could Ms. Jennings tell me whether this is a requirement? Must this be filmed in all circumstances in order for this to be admissible as evidence? If this becomes mandatory, we will obviously have to think about it. In principle, does Ms. Jennings' amendment facilitate the administration of the evidence? Ms. Jennings is a fair person in all circumstances.
I disagree with you about hockey, by the way. It has improved the game and the calls.
So this is a tool, I think, that could be used for greater certainty, and that's why it's already in the first part of the scheme, which includes the physical coordination test. It says “may”.
The question I have—and it's for anyone here—is, if that's in the bill, does it imply that the police forces do not have the right to take those video recordings at any phase unless they're in an enactment? Whether that's true or not, I'd like to know.
Secondly, if you have the right to video the roadside coordination test and the interrogation for other offences in the police stations in any event, why would they be mentioned in the bill at all? I guess where I'm going is, if proposed subsection 254(2.1) is in there for the coordination test at the roadside, and it's permissive—it says “may”—and we could amend perhaps Ms. Jennings' amendment to say “may,” they could both go in. It wouldn't do any harm. It would be an added tool if there were means. Alternatively, they both should come out if they're already permitted by law.
So are video recordings permitted by law?
I know most of my colleagues are probably in favour of the subamendment, but I hope they listen carefully to what I have to say.
I'm in favour of the original amendment and strongly against the subamendment, for the following reasons. We're talking about something very serious. We're talking about ruining a person's life. Once they get a criminal conviction, as you know, it would have a devastating effect on a person's life. To say that just because a video wasn't available, that it shouldn't be allowed, the cost of that...it doesn't make any sense. The police suggested that we have the technology. They've been using videos for evidence in the past for many, many years. The fact is, it doesn't have to be perfect, but if it added one scrap of evidence that's going to change an entire person's life, a videotape is not much of a cost.
All the legal experts, the people who have to prosecute and defend this in the courts, who came before our committee said, “We need those videos.” They said these procedures, this law, the DRE are fraught with all sorts of things that are going to tie up the courts. We're already letting murderers go free because the courts are tied up. We're going to tie them up even more.
They suggested this process will do more justice for the victim because they will have the tapes, which will add more evidence. It will make convictions more certain. A lot of people, once they see themselves on video, won't go to the long constitutionally charged court cases.
A witness brought a report that said the DREs fail in 10% to 20% of the cases, which means 10% or 20% of the people charged would be innocent. If there can be more evidence that would reduce some of that by videotape, it would certainly remove a huge danger to society.
All the lawyers who have to deal with this in court said this is very important. I think this is very important for the breathalyzer.
If later in the meeting we approve the amendment that will allow one to take evidence away, so that the only thing you can do is prove the machine is broken, then it's absolutely essential that we videotape that process, because how is someone ever going to prove that? I hope that amendment doesn't get through, but videotaping in that particular case, for at least some minor protection of the person's rights, would be absolutely essential.
When you see these tests on tape...it's going to clear up the courts. There will be a lot fewer challenges and it will give a lot more justice to a process that many of the witnesses said was already a challenging new process that we're trying to support, that we're getting into place. It's going to be challenged a lot in the courts. If we can make it any more certain by this standard technology that's already in place, there will be a lot fewer....
We should fund the police for whatever they need. It's a lot less cost than the millions of dollars we're going to spend in court cases and the untold tragedy in millions that convicting innocent people will cause.
Thank you, Mr. Chair.
I share Mr. Bagnell's concerns in a great many ways. I recognize, except for Corporal Graham's testimony, that practically we have a major problem at this point to go ahead and make the audio-videotaping mandatory.
I just want to make these points. One, I have thought a fair amount about this over the last two weeks, because it's been over that period of time when we began to hear evidence about the additional benefit we would derive within the criminal justice system if we could videotape both the assessments for the purpose of identifying whether a person is impaired by drugs but also with regard to the same impairment because of alcohol.
Mr. Bagnell's point about reducing the cost within the criminal justice system by reducing the number of trials is extremely well taken. I think videotaping would go some distance to doing that. Many of us who have the experience of seeing videotapes, whether in the civil or criminal setting, know how effective they are in trials. I'm not quite sure why judges and juries believe in videotapes more than they do eyewitnesses, but they do, Mr. Chair. That's just the reality.
The other point I want to make, and I suppose I'm making this to the Justice officials, is that practically, at some point, we will be able to effectively videotape at relatively minimal cost, because we're going to keep increasing the use of videotaping in the police stations around the country. At that stage, it seems to me it would behoove the government, whichever one it is at that time, Mr. Chair, to pass regulations requiring videotaping.
Having made those points, I'll be supporting the amendment. Thank you.
No, it's not a point of order. It's on the clause.
This is the clause that authorizes the creation of regulations. It allows the creation of regulations, which is just fine. Those are statutory instruments.
The provision also allows the incorporation of what is called “material by reference”. And it says very clearly that “material does not become a regulation for the purposes of the Statutory Instruments Act”.
That makes me nervous here because, Mr. Chairman, as you know, this Parliament scrutinizes with precision all statutory instruments, all regulations made pursuant to our federal statutes, and particularly with reference to civil liberties and compliance with the law.
What I'm concerned about here is--and I want to ask the question--why is the “material” referred to in this provision stated not to be a regulation? And is it possibly the effect of this provision that this material would not be scrutinized by our Parliament for its normal purposes to ensure compliance with the law?
I want to make two points.
First, I was going to move similar amendments. I think we should be doing this. Given that we are introducing a new regime to this country, we should not be going to the third stage of the DRE process because we don't have any standards with regards to drugs, and we've heard this.
More importantly, it's because of the prejudice of this evidence going in front of a judge and potentially, in some cases, in front of a judge and a jury. Even in front of a judge, in most cases, there is the prejudicial effect of this evidence going in that the person has consumed drugs or has drugs in their body. But we have no idea what that means in terms of impairment. I understand why the police want it, I understand why the prosecutors want it, and I understand why the government wants it, but with regard to basic justice in the courtroom, it really has a prejudicial effect.
Having said that, Mr. Chair, I'll stop with my comments, but if I had been in the room, I would have asked for that section of the bill to go on division, because I don't know what my party is going to do at this point when it gets before the House.
What G-4 does is this. If evidence is brought concerning a malfunction or the improper operation of the approved instrument—and we heard testimony about that—the amendment would require the displacing of the presumption of accuracy only if the error is serious in that it would give a reading of a blood alcohol concentration of under 80.
This means that if the instrument read something like 1.2 and evidence is brought that it should have read 1.19, we don't throw out all the evidence based on some sort of trivial error. The evidence is only thrown out if it would give a reading below the legal limit.This would avoid throwing out an entire body of evidence based on a trivial problem.
Mr. Chairman, we will vote in favour of this amendment, because that is my party's position, but I have a real problem with this. I want to ensure that I have understood correctly what we are talking about.
Currently, with regard to an admissible defence before the courts, it is possible to challenge the operation of detection technologies and the document issued at the end attesting that the individual's blood alcohol concentration exceeded the level set out in the act.
However, imagine that I'm in a bar in Montreal along with the nice and attractive Ms. Brunelle, and I drink five glasses of alcohol and ask Ms. Brunelle to say in her testimony that my blood alcohol concentration was not as high as the device indicated. This kind of evidence would no longer be admissible.
Mr. Chairman, in some situations, we can identify a mistake, for example, the device's temperature was supposed to be 34°C, but it was 39.9°C.
When we ask the toxicologist what effect this might have the result and he or she says more or less 2%, if the result indicated 160 mg, this isn't very helpful. However, as the bill is currently written, we need only demonstrate two things. First, it is a mistake and, second, we can talk about consumption.
Our worst fear is that a minor error will be identified and someone will say, since this minor error was found, we could ignore it and use the two-beer defence for the five beers I drank with my friends over a two-hour period. This is what happens with the bill as it is currently written. We want to amend this to specifically state that it must be an error—
While we're not at my Liberal motion, I need this information in order to determine whether or not I proceed. There is a major criminal trial going on, as we speak, in Quebec. While impaired driving trials, I've been told by criminal experts, normally take a couple of days at the most, this trial has actually been scheduled for 25 days.
The principal issue at hand is the fact that notwithstanding the guidelines about the maintenance of the breathalyzer machines in the police stations, notwithstanding the manufacturer's recommendations as to how to go about maintaining the machines, how to go about ensuring that they're properly calibrated, etc., with the particular police force in question, the defence is attempting to show that in fact the police force does not follow the manufacturer's guidelines in terms of the maintenance and does not follow the guidelines that are established by the committee, that you're talking about.
That's why the defence lawyers are so concerned about the issue of the two-beer defence being removed.
So my concern is that should amendment G-4 carry and my motion not carry, would that mean then that the burden would be on the defence to show that the machine had not been properly maintained according to the guidelines set out by the manufacturer? Or would the burden be on the Crown--because that's the objective of my motion--in the same way as the burden is on the Crown to show that the technician was properly qualified, that the analyst provides a certificate, etc.?
In the context of a trial, of course, the Crown bears the burden at all times of proving everything. The certificate is a great assistance to the Crown. Very often, perhaps more often now if this gets through, it saves us from having to call the analyst and go through every step. They provide the certificate. There is full disclosure to the defence of what was done.
In this bill, in another part of it, we are allowing for the printout from the machine, and I obviously don't know what could lead to a 25-day trial over something like that. But if the machine prints out everything that was done and it worked right on blank air--there was no alcohol, it worked right on the test--then you have your test. And again, before the next one, it goes through all of those. We will have a situation where, on the printout by the machine, it is shown that it has worked. It did its own internal testing.
I fully suspect that the defence will attempt to find some way to get around that and look for maintenance records, etc. The new machines, in particular, provide the printout that shows that this machine was working before it took your accused's test, and because we do two of them, it will show that it was working in between, when we tested it again on the standard solution.
If the defence wants to attack it, it can make motions, and if it's unhappy with the disclosure, asking for all these maintenance records and manuals, etc., I presume the Crown will oppose these, saying, “What's the point of it? We know the machine is working because the machine tests itself.”
Given that one of the witnesses here, Mr. Yost, has said that LIB-8--which would amend clause 8 by adding on after line 6 on page 13, the text that one finds on page 18 of the amendments that have been distributed--if I understood him correctly, is not really a problem. There's a minor contradiction. He said there might be a minor contradiction, but that in fact the substance of it is not a problem with Bill , does not change the objective substantially of Bill C-32.
I believe this is in fact an amendment that should be supported by the members of this committee. I think it brings a little more clarity to clause 8, and as he said--I'm not putting words in his mouth, he said it himself--it does not change clause 8. It brings a little bit more clarity. It repeats information that's there, and there's one little technical thing. Now, the government may wish to propose a subamendment for the one little technical thing that Mr. Yost mentioned, but I'm amazed that the government is automatically discounting out of hand this particular amendment that's being proposed.
I see a problem with it in that we're talking about these instruments that a case could be built on. We've heard testimony about the accuracy and the improvements that have been made. Now, Ms. Jennings' amendment would say “is checked for accuracy on a regular basis and has been maintained according to the manufacturer's guidelines”. My understanding of what Mr. Yost had said is that sometimes these aren't the guidelines that are in place; there may be more stringent maintenance guidelines that the committee recommends.
So for us to say this...I don't think Ms. Jennings may know the exact impact of her amendment. I don't know the far-reaching impact. But we do know that this body of law on impaired driving takes an inordinate amount of room in the Criminal Code, and this may be opening up problems that we don't foresee. I've pointed out a few of the problems--one, that this is not the practice that's in place right now, “the manufacturer's guidelines”.
Mr. Yost, do you have anything to add to that?
Already in the existing legislation, we have paragraph 258.1(g), which calls for a certificate of a qualified technician stating that the analysis of each of the samples has been made by means of an improved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard identified in the certificate that is suitable for use with an approved instrument. The policy of the laws, probably for 40 years, is that the way you make sure the machine is working properly is to ensure that it works properly on the alcohol standard first. This is now asking for further information.
I don't want it to be said that we're throwing it out of hand, but we've only seen it for about 30 minutes and certainly haven't had an opportunity to discuss--well, maybe two hours--it with our provincial colleagues and the police, etc.
I am concerned that we might run into a problem. I am not a certified technician. I don't know what this is going to mean.
As worded, this motion would require that the certificate be prepared and filed.... If, for example, the breath technician were called to give live evidence--viva voce evidence--there's nothing in this amendment that contemplates that situation. Also, the amendment sets out that this is mandatory; otherwise, the breath tests are thrown out and wouldn't even be admissible in evidence. You wouldn't get to that point unless you have the certificate, even if the technician were available to speak viva voce in court. Those are considerations that are of some concern.
Also, the idea of manufacturers' guidelines is a concern. The alcohol test committee of the Canadian Society of Forensic Science, as I understand, has taken a position that these are guidelines. These are best practices that police officers, qualified technicians, would be well advised to follow. If they had followed them in the Quebec case, they wouldn't be in court.
However, the question still arises that the science may be valid and the result may be valid depending on what aspect was not followed in the guidelines set out by the alcohol test committee, or even a manufacturer, for that matter. I imagine that's why they're taking so long in court--25 days--to settle and argue as to whether the particular guidelines that weren't followed were somehow fatal to the science or the reading.
It may well be that they have scientists who appear on both sides. The scientists who uphold the reading will probably say that even though the guidelines weren't completely followed, it's not necessary to follow that particular guideline exactly to get an accurate result. They would have been well advised to do it. We wouldn't be in court if they had.
Mr. Chair, I have a bit of a problem in this area of the law, for us, on the fly, to be.... I mean, with regard to “or any more stringent guidelines”, whose determination is it whether it's a more stringent guideline? It's opening up more questions.
I appreciate what is trying to do, but I don't know if that necessarily addresses my concern. You have to bring some evidence as to which is more stringent: the manufacturer's or the committee's guideline. Is the committee's guideline in some way less stringent than the manufacturer's? You could have a problem.
I don't know which is more stringent at this point. Without knowing that, and without consultation with the provinces on this, I couldn't support the amendment.
I'm sorry, I know we're trying to speed up the bill, but I have to speak at length to this clause as a whole, because the witnesses have suggested this is a precedent that's upsetting in the entire justice system.
Kirk Tousaw from the B.C. Civil Liberties Association certainly found it violated the charter, just to have a machine spit out a piece of paper and the person goes to jail or loses their driver's licence or both. These are very serious consequences for someone. Saying they cannot defend themselves...if you were drawing a parallel with other types of crimes, in all other types of crimes a person can say they're not guilty and give a reason. The judge doesn't have to believe them. I understand there's a problem in the way Ontario courts have interpreted this, and that should be fixed. But I don't think it gives us the right to take away the rights of individuals to suggest innocence.
To draw a parallel, if any one of us were in a bar this afternoon and there was a murder--someone was shot--and we were charged with the murder and we had nothing to do with it, it would be like saying we can't claim we had nothing to do with it, which is exactly some of the defence this takes away.
It doesn't occur anywhere else. And it's not me speaking, I'm not a lawyer, but this is what the witnesses said. Mr. Lee brought up the Seaboyer case, which said: “A law which prevents the trier of fact”--this would be a judge or jury--“from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial” in our society. I think this came up in Regina v. Boucher.
Mark Brayford from the Canadian Council of Criminal Defence Lawyers suggested a very small number of people are charged and found guilty. The problem doesn't exist, so why try it?
There's been an assumption throughout these hearings that there's a huge problem here. The evidence is that there is not a large number of people, when you look at the defence of the particular cases. This is Mark Brayford once again: “...saying you cannot testify that you did not have alcohol to drink as a basis for winning the case will violate both section 7 and paragraph 11(d) of the charter”.
One of the reasons I want to get all this on the record is that when this comes up as a charter challenge, I want the judge reviewing the challenge to see what members of the committee were thinking about this particular case.
He also suggested there may be 100,000 cases in this area, and if this goes forward, being unconstitutional, there's going to be chaos in the legal system. He goes on to say, “...to abdicate someone's liberty, if I could put it that way, to an instrument rather than to allow a judge to judge their testimony would be...unfortunate”.
As we've heard in other testimony, the instruments are not state of the art; there are problems with them, they're not infallible. To not allow other defences is just not fair, and it's not the type of fairness we see in the criminal justice system. It's like in the old days, in the Middle Ages, when people said they were innocent and the king said no, they couldn't be innocent, and they were not allowed to present their case.
Mr. Rosenthal from the Criminal Lawyers' Association...and I'm sorry, I've never filibustered before, but I'm going to talk out the meeting, just so, I hope, the NDP and the Bloc can reflect on the seriousness of the precedent we're setting in the justice system. And it's not from me, it's from the lawyers.
Mr. Rosenthal from the Criminal Lawyers Association said, “This is a disturbing and unprecedented provision in criminal law.” We're putting forward an irrebuttable presumption. This proposed amendment will take away from the trier of the fact, whether it's a judge or jury, the ability to determine guilt or innocence. A person goes home and has a drink and the police show up.... You're going to erode the presumption of innocence, which as we all agree--I'm sure everyone in this room agrees--is fundamental to our legal system. You're going to convict a lot more people who are innocent.
In due course someone is going to have to clean up the mess of these wrongful convictions. I can't overestimate the seriousness of a wrongful conviction. They are getting a criminal record. You're ruining a person's life. They won't be able to travel, they will have a hard time getting a job, and it will probably lead to a lot of psychological and health problems—