Bill C-32 (Historical)

An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts

This enactment amends the Criminal Code
(a) to create an offence of operating a motor vehicle while in possession of a controlled substance as defined in subsection 2(1) of the Controlled Drugs and Substances Act;
(b) to authorize specially trained peace officers to conduct tests to determine whether a person is impaired by a drug or a combination of alcohol and a drug;
(c) to authorize the taking of bodily fluids to test for the presence of alcohol or a drug;
(d) to create an offence of operating a motor vehicle with a concentration of alcohol in the blood that exceeds 80 mg of alcohol in 100 mL of blood and causing bodily harm or death to another person;
(e) to clarify what evidence a person accused of driving with a concentration of alcohol in the blood that exceeds 80 mg of alcohol in 100 mL of blood can introduce to raise a doubt that they were not committing the offence;
(f) to create an offence of refusing to provide a breath sample when the accused knows or ought to know that the accused’s operation of a motor vehicle caused an accident resulting in bodily harm to another person or death; and
(g) to increase the penalties for impaired driving.
The enactment also makes consequential amendments to other Acts.

Criminal Code

[Rick Dykstra, Conservative, St. Catharines, ON]

Mr. Speaker, I am not sure exactly what the member was asking.

However, in specific relation to driving while under the influence of drugs, currently there is no opportunity for the police or for any crown prosecutors to be able to convict anyone of a drug related driving offence. Bill C-32 creates a platform and an opportunity in three specific areas to do that. One is suspicion, two is possession, and obviously the third relies upon the fact that they will be able to use a standardized test that is used in many other jurisdictions in North America. They will go to the police station and under reasonable suspicion the individual will be tested and evaluated to see if in fact the individual is under the influence of a drug or certainly has driven under the influence of a drug.

[Rick Dykstra, Conservative, St. Catharines, ON]

Mr. Speaker, I will be splitting my time with the fine member for Peterborough.

It is a pleasure to speak to Bill C-32. It is an important piece of legislation that will close some serious holes in our impaired driving laws.

In 2003 impaired driving cost our society $10.5 billion, but there were other more significant costs. In that same year impaired driving took the lives of 1,200 Canadians and over 47,000 Canadians were injured, many of them very seriously. That is more than three people killed and over 125 injured every single day. How do we put a price tag on that? I strongly believe that we can prevent many of these tragedies in the future and it certainly is our duty to try. The legislation introduced today will give police and prosecutors the tools they need to rid our streets of drunk and drugged drivers. Let me begin by discussing the drugged drivers.

In researching this issue I was terrified by the statistics relating to teen drugged driving. According to a 2005 report on drug use by Ontario students, almost 20% of all student drivers reported driving after smoking marijuana. By grade 12 that figure is over 25% and they are not driving alone; 22% of all high school students from grade 9 to grade 12 reported that within the last year, they had been a passenger in a car driven by someone who smoked marijuana.

Of course, it is not just teenagers. A Senate report in 2002 found that between 5% and 12% of all drivers may drive while high. Drugged driving is obviously a very serious problem and as of right now, law enforcement is all but powerless to stop it. Police officers' hands are almost completely tied when it comes to collecting evidence. As Sergeant Brian Bowman of Toronto explained to CBC News:

If we see someone driving erratically, we really have a high hill to climb to prove it's from drug-impaired driving. We almost need the smoke to waft out of the car or have the pills fall out onto the road.

The police cannot even demand a physical sobriety test. This legislation will close that loophole. With this legislation police will now be able to request the performance of a roadside standardized field sobriety test when there is reasonable suspicion that a driver has a drug in his or her body.

They will also be able to demand a drug recognition expert evaluation to be performed at the police station. The DREE system has worked well outside Canada and it will work well here as well. Failure to comply with these demands will be considered an offence under the Criminal Code, just like refusing to take a breathalyzer test. A final deterrent to drug impaired driving will be added by making it a criminal offence to be in control of a motor vehicle while in possession of a controlled substance.

Now let me turn to the drunk drivers. Drunk driving was once winked at, but no longer. Today everyone recognizes that it is a deadly, serious problem. OPP Commissioner Julian Fantino has noted that the leading cause of criminal death in my home province of Ontario is not murder, it is drunk driving.

In my community, I had the opportunity to sit down with members of the Niagara Regional Police Service, to work with local MADD organizations and to meet on a number of occasions with their communications and public relations person, Chris George. In 2003 the Niagara Regional Police Service arrested 28 people during its month long holiday RIDE program. The Niagara OPP laid 99 charges of impaired driving in 2006 alone. The number in my riding continues to increase.

Drugged and drunk driving is listed as one of the top three justice concerns for the people of my community. This bill delivers on that concern. Bill C-32 toughens penalties for drunk drivers and helps prosecutors secure the convictions that are needed to keep the roads safe for responsible drivers.

We have strengthened the mandatory minimum penalties for first, second and third offences. The maximum penalty for impaired driving causing bodily harm will now be 10 years, and for causing death it will be life imprisonment. This is simply the right thing to do.

Our bill will help prosecutors get convictions. When prosecuting drunk drivers, the crown has objective scientific evidence from approved instruments that measure blood alcohol content.

In the 2005 case of R. v. Boucher, the Supreme Court ruled that the credibility of such testimony cannot be called into question by breathalyzer results, not even if someone blew more than twice the legal limit.

The two beers defence is a joke. Testimony from one's drinking buddies should not be allowed to distort objective scientific measures.

Getting this legislation passed should not be a partisan fight. In fact, in 1999 a Liberal dominated justice committee released a report on the issue. The committee's recommendations included the following: allowing imprisonment for life following conviction for impaired driving causing death; allowing for a maximum of 10 years' imprisonment where an accident causes bodily harm; and authorizing the taking of a blood sample for the purposes of testing for the presence of alcohol or drugs based on reasonable and probable grounds. Those were all good ideas agreed to by the Liberal MPs but good ideas nonetheless.

In 2003 the Department of Justice released a consultation document on the issue noting that drug recognition expert programs had been successfully implemented in many American jurisdictions. It was a very good point.

Bill C-32 will protect Canadians from impaired drivers. I encourage all members to support it. We have the opportunity to reach across all party lines and put forward legislation that is tough, that is fair, that is right and that is current with what is happening in jurisdictions around the world.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I rise today to speak with regard to Bill C-32 which essentially has two major components. One of which would address for the first time a methodology to use in our criminal justice system to deal with impairment while driving an automobile or plane under the influence of a drug rather than alcohol.

The second part to the bill, which quite frankly is probably more significant in terms of its effectiveness, deals with our existing law regarding impairment because of consumption of alcohol. One of the defences to those charges that has cropped up quite frankly has gotten to the stage of almost being a scandal in this country in terms of the number of times it is used and what I would call the underlying weakness of the jurisprudence that allows for that defence.

Both of these sections are important sections. We need to address them as a legislature and to see if in fact we can more effectively deal with the problem of impaired driving whether it is because of alcohol consumption, as we have traditionally looked at it, or now both a combination of alcohol and drugs or drug impairment on its own.

The first part of this bill is a reincarnation of Bill C-16 from the last Parliament that dealt exclusively with the issue of impairment by drugs. The sections in this bill are replicated from that former bill. Essentially what it attempts to do, which I have some concerns about, is to take us down the road that we followed with regard to impaired driving by alcohol going back now some 30 plus years and using technology, as we did then in the form of the breathalyzer, to identify people who were impaired and to deal with them by way of criminal penalty sanctions.

The difficulty I have is that the existing technology with regard to drug impairment is basically non-existent. It is nowhere near the situation we have with alcohol impairment. Because of the technology we initially developed and have now refined, the assessment of an individual being impaired as a result of the consumption of alcohol is quite clear and scientific.

Generally speaking, and it is in the percentile of 100%, it is irrefutable. Unless the equipment is malfunctioning or the operator is not qualified and has not used the equipment properly, the equipment properly and effectively assesses a person's impairment.

I think we can safely say there are two exceptions to that and a crucial one is when the test is given. If there continues to be some consumption of alcohol between the time the person stops operating the vehicle and the test is administered, it is possible that consumption will bring up the blood alcohol level and in fact take it over the prescribed limit when in fact the accused individual may not have been impaired at the time he or she was operating the vehicle. That is one defence and it stays in.

The second one is where the consumption of alcohol was huge immediately prior to the operation of the vehicle. When the test is given, the person is over the limit but in fact again, because it takes some time for the alcohol to work its way through the system and impair a person from operating a vehicle, that person in fact would not have been impaired at the time of the operation of the vehicle.

This bill, as did Bill C-16, preserves those defences, so if that can be established by evidence there would then be a defence to the charges because people would not have been impaired at the time they were operating the vehicle.

The difficulty we have with the drug impairment attempt that is going into this bill, and again that was in Bill C-16, is that we do not have two things. We do not have the technology to do a quick test, roadside or at a police station, but more importantly, we do not have any standards as to what type of drug will have what type of an effect in terms of impairment and the ability of the human being to operate a vehicle.

Because of the work we did in the last Parliament on Bill C-16 we took a great deal of evidence. In this regard the European Union and a number of countries in Europe are working to try to establish a standard of impairment from the consumption of marijuana or the chemical derivatives. They have not been able to do that up to this point. They believe they are making some advances but they are clearly not there at this stage.

In regard to marijuana specifically, one of the problems we have is that the particular chemical derived from the marijuana plant stays in the system for an extended period of time. This was a defence by one of our Olympians and that was his argument at that time. It saved the day for him. In fact, it is the scientific reality that the chemical substance stays in the system for an extended period of time, so it is going to be very difficult from what we can see at this point, mostly because of the work that has been done in Europe, to set that minimum standard.

The reason this is so important and that I am pursuing this issue with regard to marijuana is that there is no question, and we are hearing from our police officers across the country, from our prosecutors, from people involved in the impaired driving issue, that marijuana after alcohol is clearly the second biggest problem substance that we have. People consume it and then drive a vehicle while impaired. However, we do not have the technology or the science at this point to establish that minimum standard.

We also do not have any equipment that could be used at the roadside or at the police station that would do a quick assessment. That can only be done by way of taking a blood sample or a urine sample. This legislation recognizes that this can only be done by a qualified medical person, a doctor or medical technician which generally would have to occur at a medical clinic or hospital.

The proposal in the bill, as was in Bill C-16, is to establish a system in Canada mimicked after some that have been used in the United States and I believe in England, where we would have specially trained police officers. It would be a three stage approach. Initially the police officer who stopped the vehicle based on reasonable and probable grounds that the driver was operating the vehicle while under the influence of some chemical or drug would do an examination. This may include the traditional ones of walking the line, trying to touch the nose, balancing on one leg, looking at the eyes, and hearing the individual speak, the traditional ones we had before the breathalyzer for alcohol consumption.

If the officer made a determination that the person was clearly suffering from some impairment in terms of being able to operate the vehicle, the officer would then require the person to attend at a police station where he or she would be examined by a specially trained police officer. The language that is used in the statute is that of an “evaluating officer”. This person would be a police officer with general training but would have additional training and this is where I have one of the problems.

Not taking anything away from the individual, but in looking at the training material they use to train this person, I have serious doubts about his or her ability to make this evaluation. The evaluation they are required to make by statute is not only to evaluate the person's impairment, but to evaluate the type of drug was used as well. Was it marijuana, heroin, cocaine, or a prescription drug, legal or illegal? We can go down the list. We heard some evidence about the potential of there being hundreds of drugs. I see this method of evaluation as being a serious flaw.

If the evaluating officer makes a determination, this law would then require the accused person to attend in front of a qualified medical person, either in a clinic or a hospital, where a blood sample would be taken. The legislation then says that the sample could then be admitted in a courtroom to establish the fact that the evaluating officer was correct, that the person had consumed a drug, whatever it was.

Most lawyers who looked at this would ask what good this would do for them when they are in front of a judge and have to prove, beyond a reasonable doubt, that the person was impaired.

Wearing the hat of a prosecutor, I would put this evidence forward and I would expect this question from the judge. Why was I giving this information that the individual had X amount of parts per million of a drug in his or her blood? Would that tell the judge anything about the person's ability to operate a motor vehicle? As I said earlier with regard to the work and the research that has been done with respect to impairment by marijuana, the answer from me as the prosecutor would be no. I could not tell the judge that this gave any indication as to whether the person was impaired. Obviously the judge would have to make an early decision.

Now wearing the hat of defence counsel, I would be telling the judge that the evidence was severely prejudicial to my client because it showed he consumed a drug but that was not what he was charged with. He was charged with impairment. The evidence has no value whatsoever toward establishing his impairment. That is the argument I would make as defence counsel.

In most cases the judge would indicate that the evidence was severely prejudicial because it showed the individual was a drug user, but it had no probative value in the courtroom as to the charge in front of the judge. I fear the case would be turfed based on that. That is not even a charter argument. This is evidentiary rules in our courts. Therefore, it has a fundamental flaw.

There is a charter challenge as well. As a result of the limited qualifications of the evaluating officer, the court may very well determine that a person's personal security was invaded, which is one of our fundamental rights in our country. A determination could be made under this section of the charter that it would not be reasonable to make the person give a blood sample, or in some cases a urine sample, because of the basis on which the demand was made. It was made by the evaluating officer, who was not a medical expert by any means and had a limited ability to make an assessment as to whether the drug was marijuana, heroin, or prescription, which may include a legal prescription, had been ingested by the accused.

During the Liberal government, the NDP supported the bill. It was sent it to committee and it did all the investigation. However, at the end of the day, we had serious concerns about whether this part of the bill would survive that challenge. Because of the risk of whether this will survive those challenges in the courtrooms, it also raises the issue as to whether it is worthwhile expending the kinds of dollars for the training that will be necessary to prepare our police officers for this methodology.

Those are our concerns. We will support the bill, even with regard to this part of it, to go to committee. We hope we perhaps we will find some more evidence now. Maybe the work being done in the Europe is more advanced. The last time we looked at this was about a year and a half ago.

I turn to the second part of the legislation, the more important part in terms of its usefulness in our system and in the courts. Finally, after at least 10 years, getting closer to 20 years, there is a manufactured defence in effect, and my friends in the criminal defence bar will hit me for saying this. Unfortunately our courts, all the way up to the Supreme Court, have accepted this defence I think because of poor wording in the code, and I will give them that much credit, when we first passed this. The key wording is one can establish with evidence to the contrary that in fact the person was not impaired.

When I started to practise law, the Breathalyzer was just beginning to be used. At that point, it was generally accepted that if one could establish the machine was not working properly, as it has to be tested in certain ways before it is actually administered, or that the operator was not qualified or did not use it properly, then those defences could be used to establish that the Breathalyzer evidence was unacceptable and the charge could be avoided.

There is no question that those defences should remain. With any system that involves humans, there will be some flaws in it and we have to allow for those defences.

However, what happened was not those two defences or the defence of when the alcohol was consumed. What cropped up was a whole industry of defence lawyers and toxicologists and we would get this “two beer” defence. We would have this sequence.

This is where the two beers defence arises. For most people the consumption of two beers, within a reasonable timeframe of the test being administered, does not put them over the .08 limit. The accused would take the stand say that he or she had only two beers, or one glass of wine, or one shot. Then a friend or an acquaintance, who was with the individual that evening, would take the stand and confirm that. Then a toxicologist would be brought forward at great expense. These defences cost between $5,000 and $10,000. Unfortunately, a judge would have to say, “As I read this section of the code that's contrary evidence” and person would be acquitted. The number of times that has been used has almost become a scandal.

I believe proposed amendments to the sections in the code will remedy that problem. We will finally get the convictions we are missing now. Those individuals who are driving impaired, sometimes repeatedly will be convicted and penalties will imposed. Hopefully, that will reduce the amount of impaired driving in our country.

We will be supporting this bill, at least on second reading, and hopefully addressing some of the problems that I have mentioned in my remarks today.

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, the focus of my speech was on blood alcohol impairment, but as the member points out and as Bill C-32 deals with, it is impairment with drugs as well.

The drug recognition experts, DRE, are at RCMP detachments. It is a problem within our country. The impairment can be caused by a lack of sleep and someone not being safe to drive. Impairment can be caused by the use of prescription drugs, and it can be caused by illegal drugs or alcohol.

If individuals are impaired by whatever the cause and they are not safe to drive, they should not be driving. Therefore, an RCMP officer or a provincial police officer will now be able to ask for a roadside sobriety test. If it is determined that there is an impairment, they would then be going back to the detachment and a DRE would determine what is causing the impairment.

The commitment from the government is to make our communities safer, to make our streets safer, and to lower taxes and provide the dollars in a responsible way where they are needed. That is why we are supporting and providing the tools to the police. We are providing the tools for a cleaner environment and we are providing lower taxes. We want safer communities and we are getting the job done.

[Robert Thibault, Liberal, West Nova, NS]

Mr. Speaker, I think we all share concerns about the harmful effect of driving while under the influence, whether it be alcohol or a controlled substance. They both diminish our faculties.

I look forward to seeing the results of the committee's work. I think everyone agrees with the principle of Bill C-32 but I know there are some concerns with the administration or defining of it. I would like to know if the parliamentary secretary shares these concerns and, if so, if he sees any solutions.

One concern is the question of creating an offence of up to five years imprisonment for possession of a controlled substance while driving. The driver might not have used the substance but it may be in his presence. I have fears about that. I will be speaking later this afternoon and I will discuss that more.

The other concern I would like the member talk about is the question of the drug recognition expert and the question of taking body fluids or blood in the case of an investigation or charges. In rural Canada that work will undoubtedly have to be administered by the RCMP.

The distances from station to station for the RCMP are far apart. They generally do not have staffing in the off hours. The administrative burden that will be put on the RCMP and the costs associated, the costs that will be transferred in this manner to the provinces and the municipalities because they do bear a portion of the policing costs in provinces such as Nova Scotia and I believe in all provinces, will be very high if each detachment needs to have someone trained as a drug recognition expert and be available 24 hours a day. That means that there would need to be multiple officers with that training. Some of these detachments have only three or four officers.

We would then need to have someone with the training to take the blood and body fluid samples in a safe manner. That would require a lot of nursing training or health type training and the person would need to be available on a 24 hour a day period. If not, then we are looking at the transportation of potential abusers, but people who may very well be innocent, of distances of three or four hours or more. This would be very difficult in the administration of this particular program.

I would ask the member if the government has considered these questions. Has the government looked at what it would cost, how it would do it and how it would ensure that the municipalities, cities, rural municipalities and the provinces are not overly burdened with these costs?

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, I do not have the specific number but it is in the hundreds. It is more difficult to get a conviction on impaired driving than it is a murder conviction.

Before being elected to the House I worked as a loss prevention officer for the Insurance Corporation of British Columbia. One of the things I had to do was provide answers to the ICBC, if there was ever a fatal accident, of what the causals were. It often was drug impairment, lack of using seat belts or bad choices. It is a very dangerous choice to drink and drive. It not only puts the driver at risk, it also puts the lives of other Canadians at risk who are sharing the road.

Bill C-32 is good legislation and it would bring us into the 21st century. We need to move forward. I hope all members of the committee will work together to ensure the bill moves quickly through the House.

[Mark Warawa, Conservative, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, we are getting the job done and we are moving forward to action.

I am pleased to speak to Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts. This bill would bring Canada's impaired driving laws into the 21st century and would greatly assist the police in their efforts to investigate impaired driving incidents and the Crown in its prosecution of alleged offenders.

I know that all members recognize that impaired driving remains the single criminal offence that is most likely to result in death or injury of Canadians. If passed, this legislation would make an immeasurable contribution to the safety of all Canadians. Therefore, I trust that all parties will support the legislation and that we can cooperate so that these needed changes can be considered by the standing committee. I can assure all members that the government is open to consideration of all improvements that the committee can suggest, after hearing from stakeholders, to make the bill even more effective in achieving its goals.

The bill has three main components. First, it would give the police the tools they need to investigate drug impaired driving. Second, it would make changes to reflect the great advances that have been made in breathalyzer technology since Parliament first introduced breath testing almost 40 years ago. Third, it would introduce new offences and increase penalties for existing offences.

Many members in this House are familiar with the drug impaired provisions of this bill. They are virtually identical to the provisions of Bill C-16, which was introduced in the last Parliament, reviewed and amended in committee and reported unanimously with amendments by the committee. However, it died on the order paper.

There is no question that police and prosecutors are eagerly awaiting the passage of those changes.

I will confine my remarks to the new provisions of Bill C-32 so that members will understand what motivated the government to bring these amendments forward.

Probably the most important change in the bill is the proposal to ensure that only scientifically valid defences can be used where a person is accused of driving with a concentration of alcohol exceeding 80 milligrams in 100 millilitres of blood, driving 80 over, or .08, as the offence is commonly known.

Parliament first enacted an alcohol driving offence in 1921. Our current Criminal Code section 253(a) offence of driving impaired was enacted in 1951. It has been known for more than 50 years that a person with more than 80 milligrams of alcohol in his or her system is a danger to himself or herself and others on the road. A person with a blood alcohol content, BAC, of 90 milligrams is estimated by the U.S. Department of Transportation to be at least 11 times as likely to be involved in a fatal accident as a sober driver. Above that level, the risk increases exponentially. At a BAC of 125, the person is at least 29 times as likely to be involved in a fatal accident.

While recognizing the risk of collision with escalating blood alcohol concentrations, the problem has always been how to prove the concentration. Determining the BAC can be done by analyzing blood. However, obtaining a blood sample is intrusive and it can take a long time to complete the blood analysis, during which time the accused does not know whether the charge will be laid.

The problems with blood analysis were overcome in the 1950s with the invention of the Borkenstein breathalyzer, which converted alcohol in breath to alcohol in blood in a reliable, scientifically valid process.

Parliament recognized the risk of a blood alcohol concentration that exceeds 80 when in 1969 it passed legislation making it an offence for a person to drive with that much alcohol in his or her system. It is a peculiarity of the law that it can only be proven by making a person provide the evidence that can be used against him or her in court. Accordingly, Parliament made it an offence to refuse to provide a breath sample on an approved instrument.

Advances in technology made it possible to measure BAC at roadside, so Parliament provided for the use of a roadside screening device in 1979. These screeners indicate that a person has failed, but do not give a precise BAC for use in court. They do provide the police with grounds to demand the approved instrument test and the results from the approved instrument are admissible in court. Again, it is an offence not to provide a breath sample on an approved screening device and it is an offence not to provide a breath sample on the approved instrument.

The courts have recognized the unique nature of this law. They have upheld its constitutionality as a reasonable limit on the charter right against unreasonable search and seizure that is justified by the horrendous toll caused by drunk drivers.

In 1979 Parliament had established a two step process for determining whether a driver was over 80 that appears simple: a reasonable suspicion of alcohol in the driver leads to a roadside approved device screening test which, if failed, leads to an approved instrument test which, if over 80, is proven by filing the certificate of the qualified technician in court.

However, impaired driving, and in particular, the over 80 cases, have become among the most complex cases to prove under the Criminal Code. It almost seems that every word and every comma in every section has been litigated.

Anyone who doubts how complicated the law has become only needs to pick up Martin's Annual Criminal Code. The 2007 edition has 12 pages of legislative text and annotations for the 13 sections dealing with murder, manslaughter and infanticide. Martin's has 62 pages of legislative text and annotations for the nine sections dealing with impaired driving.

Section 253(b) over 80 cases take up a grossly disproportionate amount of provincial court time. Often this is the sole charge as there is no evidence of erratic driving and few signs of impairment. If the defence can raise a reasonable doubt as to the blood alcohol content at the time of testing being equal to the BAC at the time of driving, the prosecution will virtually never have other evidence to prove the person was over 80 at the time of driving.

When Parliament first adopted breath testing legislation in 1969, the operator had to perform a series of tests to ensure the approved instrument was calibrated properly and had to read a needle to obtain a reading which was recorded manually. Clearly, there were opportunities for operator error and even an erroneous transcription of the BAC. Therefore, Parliament provided that the BAC reading is, in the absence of evidence to the contrary, deemed to be the BAC at time of driving.

Unfortunately, even for a new generation of approved instruments that give digital readings, have automated internal checks and give a printout of the internal process, the courts have interpreted “evidence to the contrary” to include evidence given by the accused that he only had a small quantity of alcohol to drink, typically the two beer defence. The defence then calls a toxicologist to estimate the defendant's BAC based on the accused's testimony regarding the consumption of alcohol, time elapsed, food consumption, et cetera.

Essentially the accused is saying that regardless of the BAC at the time of testing, his or her BAC while driving could not have been over 80, given the small amount of alcohol consumed. The accused does not have to account for the BAC reading on the approved instrument at the police station. The courts, unless they reject totally the accused's evidence, hold that the presumption that the BAC at testing equals the BAC at the time of driving is defeated. Without this presumption, the prosecution does not have evidence to prove the over 80 offence. The defendant is acquitted for a lack of evidence showing the legal BAC at the time of driving.

The Supreme Court considered evidence to the contrary in Regina v. Boucher in December 2005, where the accused who had blown .092 testified that he only had drunk two large beers. Although the conviction was restored five to four, the decision turned solely on the credibility of the accused and whether the judge had properly considered the evidence as a whole.

The majority found at paragraph 43, “The judge also erred when she stated that the credibility of the accused and his witnesses could be assessed in light of the results of the breathalyzer test before applying the presumption”.

Consequently, the Supreme Court has effectively found that the results of a breath test can be disregarded by a trial judge and an accused found not guilty without any evidence whatsoever that the machine has malfunctioned, at least for the presumption of accuracy for the qualified technician's certificate.

Even if the court is suspicious of the accused's evidence, the presumption is lost because the accused only needs to meet the test of raising any evidence to the contrary. Frankly, I believe the courts have misunderstood what evidence to the contrary is meant to be.

Parliament passed the breathalyzer law in 1969 so that the calculation of the BAC could be done by the approved instrument, which takes the guesswork out of the equation provided the approved instrument is functioning properly, the operator uses it properly and the results are properly recorded.

The court's interpretation may have been justified when the technology was such that operator error could affect it and there would be no direct evidence of this. Therefore, it is very much a defence that reflects the weakness of the technology in use 40 years ago. I do not believe it is Parliament's intention that evidence to the contrary should be simply speculation about what an accused BAC might have been.

Given today's state of technology, evidence to the contrary must be direct evidence that the machine either did not operate properly or was not properly operated. If there is no such evidence, then the BAC produced by the machine must be accepted. The accused may still be acquitted if he or she can show that he or she was under 80 at the time of driving without contradicting the BAC results on the approved instrument at the police station. This could happen, for example, if the person downed several beers and was arrested before the alcohol was absorbed. It could occur that after driving but before being tested the person consumed alcohol and then it was absorbed by the time the approved instrument test was taken.

The fundamental question for Parliament is whether it can trust BAC readings produced by the approved instruments. Fortunately, advances in technology ensure that the accused receives full disclosure of modern approved instrument tests through the printout of the internal operations of the equipment.

In March of last year, the department commissioned a report from Brian Hodgson, a forensic toxicologist and chair of the alcohol test committee of the Canadian Society of Forensic Science on the validity of breath testing. I would be happy to provide a copy of this report to any member who wishes it. I trust that Mr. Hodgson will be called as a witness on the standing committee if we send the bill for review after second reading.

I would like to summarize his paper in this way. He wrote, “The Breathalyzer is entirely manually operated and therefore the reliability is vulnerable to human error. The test results are handwritten by the operator and vulnerable to transcription error. The advanced instruments have pre-programmed functions that minimize human error. For example, when electrical power is first turned on, all instruments must reach a specified operating temperature and the operator can then proceed with the testing of the subject. With the Breathalyzer, this function is the responsibility of the operator. The advanced instruments will not operate until the specified temperature is reached and have pre-programmed safety checks that will signal problems by means of air messages and will abort the testing procedures.

These approved instruments are highly sophisticated and must pass a rigorous evaluation process before the alcohol test committee recommends that they be listed as approved instruments under the Criminal Code for use in the courts. These instruments cannot be bought off the shelf at Wal-Mart. Perhaps the standing committee can arrange to have a demonstration of the older instruments and the new instruments so they can appreciate the differences.

In light of this science and the developments with the approved instruments, it is unfortunate that our courts have failed to reflect, in their jurisprudence, the evolution of the technology. Ignoring the BAC produced by one of the modern approved instruments and substituting for its accurate, scientific analysis of breath alcohol a calculation based on the testimony of the accused is deeply discouraging to the police and the prosecutors who have done everything that Parliament has prescribed.

As far back as 1968, the alcohol test committee expressed concern over the courts accepting testimony that effectively contradicted the approved instrument. In 1999, evidence to the contrary was discussed during the special hearings on the standing committee regarding impaired driving. The committee wrote:

The Committee understands the frustration expressed by justice system personnel over time-consuming defenses that, at least on the surface, may appear frivolous. However, given that the accused would have no effective means of checking the accuracy of a breath analysis machine, the Committee agrees that limiting the interpretation of “evidence to the contrary” in such a manner as recommended could effectively amount to the creation of an absolute liability criminal offence. Such a result would run the risk of interfering with an accused person's rights guaranteed by the Canadian Charter of Rights and Freedoms. In present circumstances, therefore, the Committee does not support amendments to the Criminal Code that would limit the interpretation of “evidence to the contrary”.

Circumstances have changed. We now have modern technology that not only is designed to eliminate operator error but also prints out the results of the internal diagnostic checks that ensure that it is operating accurately. The accused receives a copy of that printout and can make a full answer and defence.

It is just as unacceptable to ignore the approved instrument BAC reading in favour of the testimony of the defendant and his or her friends as it would be for a court to ignore DNA found on the victim which analysis showed came from the accused because he or she and some friends testified that the accused was not at the scene of the crime, with no explanation of how the DNA happened to get there.

As MADD Canada's CEO, Andrew Murie, said in a press release calling for a rapid passage of the bill. He said:

Canada appears to be the only country that throws out the results of the evidentiary breath and blood samples based on the unsubstantiated, self-serving testimony of an accused impaired driver. We are very pleased to see the government limit these challenges.

I believe members will agree that a person who has been drinking is unlikely to have an exact recollection of the amount of alcohol that he or she consumed and it is appropriate that the blood alcohol content of the driver be established by a scientifically validated instrument that gives an exact reading rather than by a calculation based on a shaky foundation.

The amendments that we are proposing abolish the loose, undefined concept of “evidence to the contrary” and lists the actual scientifically valid defences that an accused can bring forward.

We are also reflecting in Bill C-32 the advances in technology by reducing from 15 minutes to 3 minutes the time required between the two required breath tests. The old breathalyzers required at least 10 minutes between tests for the operator to set the instrument back up so it was ready for another test. The new instruments are ready in a matter of minutes and they signal to the operator that they are ready to proceed.

Although there are other technical changes in the bill, I wish to conclude my remarks by discussing the changes in the offences and the new punishments.

The Criminal Code currently provides for higher maximum penalties for impaired driving causing death and impaired driving causing bodily harm. These higher penalties do not apply to refusal and over-80 offences, so unless there is also a conviction for causing bodily harm or death arising from the accident, a lower maximum penalty applies.

While evidence of BAC is not a prerequisite in order to prove the charge of impaired driving causing death or bodily harm, it is admissible in court. There is, therefore, an incentive for the accused to refuse to provide a sample in a case involving injury or death because the maximum penalty for refusal is five years.

Even if it is admitted, the BAC reading is not necessarily sufficient to prove the offender was impaired. The Crown must call a toxicologist to establish what has been known for more than 50 years, namely, that the person who is over 80 is impaired. Virtually all toxicologists agree that at 100 milligrams each person's ability to operate a vehicle is impaired.

We propose to eliminate the incentive to refuse by making a person who is over 80, and is the cause of a collision resulting in death or bodily injury, or who refuses to provide a breath sample knowing of the death or bodily harm, subject to the same penalties as a driver who, while impaired by alcohol or drug, causes death or bodily harm.

As for the penalties of impaired driving where there is no death or injury, the government believes that they do not adequately reflect the seriousness of this offence. We are proposing to raise the minimum fine for the first offence to $1,000. When combined with the prohibitions on driving, provincial licence suspensions and higher insurance costs, this should be enough to convince the people not to commit this offence again.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I am pleased to rise in the House today to speak to Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts.

Sadly, it is quite fitting for me to be discussing impaired driving today. Only a few days ago New Brunswick provincial court judge Sylvio Savoie gave a maximum five year sentence to a dangerous drunk driver who has been a threat in our community for some time. Judge Savoie sentenced this dangerous individual to a maximum punishment, despite the fact that the crown prosecutor asked for a four year sentence, which clearly shows, on this side of the House, that our view to leave discretion with judges often works to the benefit of the community.

Judge Savoie put it in his own words best when he said that it was his duty to see that those people on the highway are protected. That is what we on this side believe about our criminal justice system.

This particular individual could serve as the perfect example for us today in discussing Bill C-32 and criminal legislation in general, in justifying tougher sentences and harsher punishments to put a definite end to impaired driving of any sort.

In fact, this repeat offender served 21 days in 1990 for refusing the breathalyzer, 14 days in 1995 for refusal, 30 days in 1999 for a refusal and 18 months in 2002 for driving over the legal blood alcohol limit. If that was not bad enough, he was given 22 months for impaired driving and driving while prohibited. He returned to court a week later to deal with another outstanding impaired charge and was sentenced to three years.

Last week this five year sentence was added to that list of sentences and to the great benefit of the law-abiding citizens to whom this person represented a severe threat.

It is important to note that this sentence was handed out under existing Criminal Code provisions, the bulk of which have been enacted under Liberal governments. Let us face it, impaired driving is not acceptable. It is a dangerous criminal behaviour that sadly kills too many Canadian citizens every year, lives that could be easily spared.

Quite frankly, I hope one day that impaired driving will be a thing of the past and we simply will not have to deal with bills such as Bill C-32 because all Canadians will know it is not acceptable to drink and drive.

For now, though, we still have a lot of work to do in our society and as legislators in this Parliament to get there. Bill C-32 is a start. It proposes to help curb the problem of impaired driving.

This is not the first time, however, that the House has dealt with impaired driving legislation. In recent years the House of Commons has been in fact quite active. In 1999 a House of Commons Standing Committee on Justice and Human Rights released a report entitled “Toward Eliminating Impaired Driving” which recognized the need to develop better ways to detect impaired driving, especially impaired driving related to drugs.

A Senate Special Committee on Illegal Drugs also published a report called “Cannabis: Our Position for a Canadian Public Policy”. Once again, the committee noted that there is no reliable, non-intrusive roadside test for drugs.

In 2003, the Department of Justice also released a report entitled “Drug-Impaired Driving: Consultation Document”. Again, conclusions mentioned how drivers do not routinely submit to drug tests and how few measures the police had at their disposal to test drivers for alleged influence of drugs.

This is why in 2004 the previous Liberal government introduced a bill to establish a new national strategy to deal with impaired driving. Unfortunately, this legislation died on the order paper when an election was called. As soon as Parliament was back at work after the 2004 election, the re-elected Liberal government reintroduced legislation to deal with impaired driving and that was known as Bill C-16. It is very unfortunate that this piece of legislation also died on the order paper when the 2006 election was called.

Here we are today with the current Bill C-32 legislation, highly inspired I suggest by the very progressive Liberal justice agenda of previous governments.

Let us look at the bill in its pith and substance. Bill C-32 does a number of things. It provides tools to detect drug-impaired drivers and creates the offence of driving while in possession of illicit drugs. This would be routinely known by those of us who have dabbled in law and know that with respect to alcohol-related offences, it is also, under many provincial statutes, illegal to have possession of alcohol in the vehicle, which is a precursor to preventing the improper imbibing of alcohol while driving or being under the influence of alcohol while driving. This is a mere extension of that with respect to drugs.

It would restrict the evidence to the contrary rule, which I will delve into subsequently. It will also create the offence of being over .08, causing death or bodily harm, which goes of course to the alcohol side of impairment. It would increase penalties for impaired drivers and for driving while disqualified under provincial statutes or otherwise. It would, finally, assist the police in investigating alcohol-related crashes.

Bill C-32 provides for several means of determining whether a driver is impaired by drugs including standard sobriety tests, training experts to recognize drivers impaired by drugs, taking samples of bodily fluids, and creating an offence for refusing to comply.

In addition, Bill C-32 will establish a new hybrid offence punishable by a maximum of five years imprisonment and prohibition on driving.

The bill will also limit the use of “evidence to the contrary”, better known as the “two-beer” defence, while retaining valid defences.

The elimination of the two beer defence is an interesting point brought forward by this law. Forty years ago, breathalyzers and other machines used to calculate blood alcohol levels were prone to errors depending on operator experience, various circumstances and external factors. Frankly, technology has come a long way.

Therefore, it was possible in the past that individuals were wrongfully accused and sometimes wrongfully convicted after roadside tests and station-administered tests. They were wrongfully accused and convicted of offences relative to the .08 limitation.

However, today increasingly accurate technological advances have ensured that such malfunctions with detection devices are almost impossible. Each machine prints out internal checks before each test. Operators are better educated. In short, we have the science now.

There are very few cases where the calibration of the machine is in error or where the operator did not have specific knowledge of how to administer the impairment test. Consequently, there are very few cases, I am very confident in saying, where the accused are wrongfully accused or convicted of driving over the legal limit of .08 on the alcohol side.

We have made progress. Just as there are very few, if none I might say, wrongful accusations for convictions, I would also say on the other hand that there are more convictions, making our roads safer places. It is safe to say that in the mores of society, drug impaired driving has not caught up to and maintained the same level of vigilance in detection that alcohol impaired driving has.

Let me for a moment compare the technical aspects of evidence gathering with respect to crime. By doing so I hope to illustrate that we are a long way from being precise on drug impaired driving. We have made great achievements with respect to alcohol impaired driving, and on all other aspects of criminal justice we have made great progress because of science.

Let me compare our state of affairs with respect to impaired driving with the introduction of DNA evidence in the criminal justice system as a whole. With all the technology police and law enforcement officials have at their disposition today, would we ever consider debating a DNA match in court by presenting a few friends who could testify in favour of an accused who was faced with a positive DNA match? I doubt very much that any judge in this country would find the testimony of a few friends of the accused as a valid basis for rejecting accurate, scientifically precise DNA matches.

Oddly enough, on the impaired driving side, if a few drinking buddies are willing to testify that the accused only had a beer or two, a court can today reject the results of highly reliable, technologically advanced, precise instruments that otherwise perhaps would have not been available in the past.

This is how this amendment, building on Liberal traditions, is keeping up with technological advances. It is important to support our police officers, those on the front line who administer such tests, and give them the faith that we should have in the laws as they administer the tests and bring about proper convictions.

In December 2005 the Supreme Court of Canada considered the evidence to the contrary, the two beer defence, and found that the results of a breath test can be disregarded, could be disregarded, without any evidence of machine malfunction if the accused meets the test of raising a doubt, raising evidence to the contrary.

Bill C-32 establishes new offences, namely impaired driving causing bodily harm, punishable by imprisonment for a term of not more than ten years, or causing death, punishable by life imprisonment. A new offence for refusing to provide a breath sample, in cases of bodily injury or death, will carry the same sentences.

In addition, penalties for impaired driving will be higher. For a first offence, the fine increases from $600 to $1,000; for a second offence, sentencing increases from 14 days to 30 days; for a third offence, sentencing increases from 90 days to 120 days and a maximum of 18 months on summary conviction. Naturally, individuals found guilty of impaired driving will also lose their licence.

Bill C-32 also provides tools to assist the police by enabling them to test drivers within three hours of a collision. It also allows them to reduce the current time between breath tests to three minutes and also to extend the driver's seat presumption for refusal cases.

Let us be clear. As parliamentarians representing all regions of this country, as legislators, we have a special task, but we are all also somebody's son, husband or wife, somebody's father or mother, grandfather or grandmother, and we see, as law-abiding citizens, aside from our role as parliamentarians, the carnage of impaired driving in our society. We react not just as parliamentarians, but as parents, as children, as friends of people who have been hurt by the ravages of impaired driving, whether alcohol or drug. In short, drunk drivers are dangerous not only to themselves but to the whole of society.

That is why Bill C-32, while a good attempt, must be a good law. It must be efficacious. In its current form, it does not address many of the points raised in the multitude of committee and justice department reports that I referred to in the first part of my address.

It is crucial that this law be built on a solid foundation and take the findings of the reports, the commissioned studies and the justice department opinions and effect a very solid law, as we have seen with technological advances on the alcohol side, a law, as administered, that results in convictions, will provide deterrents and also does not lead to wrongful accusations or convictions. But primarily, the law must work.

Bill C-32 raises a number of questions which I as a member of the justice committee will be most eager to delve into so that we can perfect it and hopefully bring it back to the House as a efficacious law. These questions, and they must be raised, are as follows. They relate to how to test drivers on roadsides for drug impaired driving.

The amendments with respect to the alcohol side are terrific amendments and will act as further deterrents and better help on detection with respect to alcohol impaired driving. With respect to drug impaired driving, there are currently no reliable tests. I would quote the Parliamentary Secretary to the Minister of Justice and Attorney General of Canada when he said in the House last week that “we do not have the equipment in place that can provide a roadside test for all drugs in the same way that we have with roadside breathalyzer tests” for alcohol detection.

And never a truer word was spoken by a member of the Conservative Party, a Conservative parliamentarian and member of the cabinet by virtue of being a parliamentary secretary. I want to give compliments where are compliments are due. I am certainly open to complimenting my friends on the Conservative side when they speak the truth and are 100% accurate, but 100% accuracy is really the standard which we are trying to achieve, with respect, as parliamentarians in Bill C-32, and the law as drafted cannot be said to achieve that on the drug impaired aspect.

There is another question related to the proposed legislation. I will be happy to study this and help this through committee. What drugs would the police be testing for? All drugs? Certain drugs? This certainly raises many questions. It has been scientifically demonstrated that cannabis can leave traces in the body for weeks after the physical and mental impairment effects have dissipated. How would the new drug recognition experts panel react to this?

How are we going to deal with the multitude of drugs, perhaps not even listed in the Criminal Code, if they cause impairment? What about prescription drugs? Although acquired legally through a doctor's prescription, many medications have warnings on them. Many people are irresponsible in taking one or several medications without reading the warnings. They put themselves in a position to harm others. They put themselves in a position to be impaired and not capable of driving safely. How does this bill deal with that aspect? How would the new drug recognition experts deal with this?

We live in a country where winter, certainly just lately but before that perhaps not, is very harsh and is synonymous with cold and flu season. That can last up to five or six months. What about the millions of Canadians who take flu and cold medications? For many of those medications, we are told not to drive or operate heavy machinery while taking them. This is a problem that Bill C-32 does not specifically address. I do not think we can leave it to the regulations to detect. This certainly must be canvassed through the best of expert testimony at the committee level.

The standardized field sobriety tests and the pooling together of the experts is an excellent idea, but we have to ask where they would be. Would they be available to every region of Canada? It is a high level of expertise. Will it apply in rural parts of Canada, like the riding of Tobique—Mactaquac, for instance? Certainly in the grand city of Moncton we would get those experts.

Furthermore, the only reliable test for drug impaired driving is a blood sample or a urine or saliva test and many of these might not stand a charter challenge, unfortunately.

In short and in conclusion, Liberals support this bill. We support it going to committee. We support the work of Mothers Against Drunk Driving. We support local operations such as Opération Nez rouge. We want our streets and roadways to be safe. In doing so, we support the bill. We have many questions and we hope those questions will be answered at committee. We hope the House will support the questions and give the committee enough resources and time to proffer the proper evidence and come back with a bill that will protect Canadians.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I am pleased to speak to Bill C-32, which the Bloc Québécois would like to review in committee. In committee, members can realize their full potential and focus on all the details. The Bloc Québécois would like this bill to be referred.

Before getting into Bill C-32, I want to take a few minutes to say that the government, where justice is concerned, has a rather controversial record. We know that this government has been very active, having introduced nearly a dozen bills. I would add that none of the bills really appeal to us.

There was Bill C-9 to amend section 742 on conditional sentencing. The government wanted to remove judicial discretion from the judiciary. One of the characteristics of the government is not to believe that our judiciary is serious and competent. It always wants to control and restrict the capacity of judges and increase their limitations when they pronounce sentences or make rulings.

The purpose of Bill C-9, which amended section 742, was to remove conditional sentences as an option for the trial judge for all offences punishable by 10 years in prison, even if it was brought down to one or two years in prison.

Unfortunately, we had to fundamentally change this bill in committee. I think we did our work as parliamentarians. Bill C-32 before us is a little more interesting because its purpose is to harmonize section 253 with everything to do with impaired driving. This a significant social problem and there is jurisprudence. I will have a chance to say more on this. They want to harmonize the legislation and use standardized sobriety tests. Our challenge, in committee, will be to look into the sensitivity, performance and operational nature of these tests.

There was also the bill on judges' salaries. This is an important debate because we have all studied Montesquieu and I know we are all motivated by the philosophy of strict separation of the legislative, the judiciary and the executive.

It is important for the three branches to live together with a healthy regard for each other's jurisdictions. That is why, when the question of judges’ salaries arises, Parliament wants to have an independent commission. It is hard for Parliament to decide how much judges’ salaries should be because judges are a major branch of the government involved not only in the administration of justice but ultimately in the interpretation of our laws. As parliamentarians, we make the laws. The government is empowered to implement them, and we hope that judges can interpret them.

For a long time, there was a balance. The Chief Justice of the Supreme Court was supposed to earn the same salary as the Prime Minister, and everything flowed from that. Then the government decided to upset the balance and proposed remuneration levels that were different from what the independent commission suggested. That was another bill we were unfortunately unable to support.

As I was saying, we want Bill C-32 referred to a committee because impaired driving is an extremely serious matter. People who take the wheel and drive on public roads must not pose a danger to their fellow citizens; that is obvious.

Thus, the government has passed legislation on suspended sentences and on the remuneration of judges.

The government has also introduced a bill on dangerous offenders. The government even hopes to establish a legislative committee. Everyone in the House understands the difference between a legislative committee and a standing committee. A legislative committee exists for the life of a certain bill, for example, the air quality bill leading to Canada’s Clean Air Act, which has been introduced by the government. My hon. colleague from Rosemont—La Petite-Patrie is one of the Bloc Québécois’ leading lights when it comes to the environment and the Conservative government should also recognize him as a leading light in view of his great expertise and the soundness of his views.

It is the Speaker of the House who appoints the committee chairs for as long as the work of each legislative committee continues. It is not the chair’s peers, the hon. members assigned to the committee, who elect the chair.

The bill on dangerous offenders is a very bad bill. It is animated by a reflexive reaction that would lead to the “three strikes” kind of approach we see in the United States. This is not a bill that the Bloc Québécois intends to support.

The government has introduced a bill on the age of consent, which is called the age of protection, with a clause that creates an exception when the age difference is less than five years. I believe that the leader of the Bloc Québécois said he was in favour of this bill when he was asked. Clearly, we will have to make amendments to reflect the new reality. It is true that sexuality is probably not what it was in your early childhood or early adolescence, Mr. Speaker. Today, adolescents start having sex earlier, when they are younger. In my day, we waited longer. All that has changed, and we have to take stock of those changes.

The government has also introduced a bill containing amendments relating to summary prosecutions. This is a rather technical bill, and I have to say that we are more or less in favour of it.

The government has also introduced Bill C-10 concerning minimum penalties for offences involving firearms.

Hon. members will remember Allan Rock. I am not sure whether his name evokes good or bad memories for the members of this House. When Allan Rock was minister of justice, he introduced a bill. I think that for my colleague, the former leader of the official opposition, this is an excellent memory. I know he was close to Allan Rock, whom the member for LaSalle—Émard, the former Prime Minister, appointed as Canada's ambassador to the United Nations. I have a great deal of respect for Allan Rock. I think he is a brilliant man who served this House well, except when it came to young offenders. The former government went completely off track on that issue.

All of this is to say that the current government has introduced Bill C-10, which seeks to increase the mandatory minimum penalties for offences involving firearms. Unfortunately, we do not have any conclusive studies on the deterrent effect of mandatory minimum penalties.

This morning in committee, we were doing a clause by clause study of Bill C-10. There is a great deal of wisdom gathered when all of the opposition parties are united in asking the government to do certain things. All of the opposition parties—the Liberals, the Bloc and the neo-Bolsheviks—asked the government to undertake a longitudinal study of the impact of mandatory minimum sentencing to find out whether it works as a deterrent or not.

Simply increasing mandatory minimum sentences is not enough. We have to know whether that will really bring peace to our communities. The Bloc Québécois, with its characteristic complete openness and scientific rigour, will see if the government does agree to the request for a longitudinal study of the impact of mandatory minimum sentences for gun crimes because we have had mandatory minimum sentences for 10 years now.

Before I get back to Bill C-32, I cannot help but emphasize the government's remarkable inconsistency. On the one hand, the government is demanding that we increase mandatory minimum sentences for gun crimes, but on the other, it wants to abolish the gun registry. Police officers in Canada and Quebec consult this registry hundreds, if not thousands, of times a day. Before entering a dwelling, officers need to know if there are firearms inside. I cannot for the life of me understand why the government wants to abolish this registry and deprive police officers of a tool they need.

I felt it was my duty to review the government's record. The government also introduced a bill about the national DNA database maintained by the RCMP. The committee will have an opportunity to study this bill.

Historically, the Bloc Québécois has always been concerned about street gangs and organized crime. It is always a pleasure to work with my colleague, the member for Ahuntsic. She and I have agreed on a number of measures and proposals that I will be presenting to the Standing Committee on Justice and Human Rights to ensure that we have the most effective means of combating street gangs and organized crime.

The Bloc Québécois is more committed to an approach that would enable our police to carry out successful investigations than to increasing mandatory minimum penalties.

Having completed this overview, I feel it my duty to begin discussion of Bill C-32. This bill would enable police officers to require that a person suspected of impaired driving due to alcohol or drugs submit to a sobriety test.

At present, the Criminal Code already contains provisions concerning impaired driving involving alcohol. Now, there would be more specific provisions concerning drugs. A person suspected of impaired driving could be compelled to submit to a test. However, jurisprudence is not clear on that subject. The interpretation that the Minister of Justice makes in this bill is to say that the Criminal Code at present does not give police officers the power to require that a person submit to a sobriety test nor to take a sample of bodily fluids as part of an investigation into infractions related to impaired driving.

If Bill C-32 is adopted, police officers will be able to require that a person suspected of impaired driving involving drugs must undergo tests and consent to the taking of bodily fluids for testing.

There is a need for some fine tuning. The work of the committee will be to ensure that the available detection technology—and I believe this is based on experience in the United States—is not unduly intrusive. We have a Charter and judicial guarantees. We want the police to have the proper tools, but it is a matter of balance.

It is important to talk about the difference between drugs and alcohol. As a member, I drink very little alcohol. I can claim no credit for that; I have never liked alcohol, and I do not use drugs. In short, I could be considered rather straight and my lifestyle reflects that. My greatest pleasures are not derived from alcohol or drugs. However, some of our fellow citizens do use drugs and alcohol.

We do not want people with a licence driving out on public roads to pose a threat to their fellow citizens. We believe that the police are empowered under the common law and the Criminal Code to stop people they see in situations of potential risk.

In 1985, if I am not mistaken—I do not want to mislead the House—in the matter of Dedman v. The Queen, the Supreme Court examined the legality of the R.I.D.E. program in Ontario. Under the program, road blocks are set up. This is done in Quebec too. Checks are done in busy areas. The police, peace officers on duty, stop people to find out whether they have been drinking. Obviously, when this practice began at the end of the 1980s, there were questions about the legality of the operation.

Usually, under the common law and the Criminal Code, a person stopping someone in a car must have reasonable grounds for believing that the individual is impaired or contravening the law. Operation R.I.D.E., as run in Ontario and as it is now run in Quebec, was simply a preventive measure. The aim was to see that all who were stopped were sober, even if there were not reasonable grounds. But, I repeat, under the common law and the Criminal Code, the exercise of the power to stop and arrest people must be based on reasonable grounds.

The Supreme Court said that people could be stopped to see if they were sober, but that would be as far as it went. When a person is stopped at a roadblock to check if they have been drinking, their car cannot be searched for heroin. The Supreme Court authorized the practices saying that a public goal of sufficient importance was involved to warrant police intervention.

The bill today wishes to go a bit further. The aim is to be able to determine impairment not only from alcohol but also from drugs. A major distinction, however, must be made. The presence of alcohol in the blood is much more easily detected than the presence of drugs. From what we have been told, if a person has consumed marijuana, traces of such consumption can be detected in the blood of this individual for up to seven, eight, nine or ten days afterwards, but that does not mean that the person was intoxicated at the time of their arrest.

That is why the committee must be very careful to recognize that what is actually important to the public is to make sure that the people who are driving vehicles on public roads are completely sober, that they are not intoxicated by either alcohol or drugs.

Breathalyzers work according to a different premise. Breathalyzers can determine whether the alcohol level in the blood is over 0.08% or 0.8 grams per litre. These facts are verified and charges can be laid. Where drug detection technologies are concerned, however, we have to make sure that they are sophisticated enough so that peace officers do not end up laying charges against people who are not really intoxicated.

Since I still have a minute, I will close by adding that one of the merits of this bill is that it will harmonize things. Since section 253 provides for different penalties, depending on whether charges are laid under paragraph (a), in which an individual is impaired by alcohol or a drug, or under paragraph (b), in which it is proved that an individual has consumed a specific quantity of alcohol or drugs.

The penalties are not the same, which does not make a lot of sense. It is the consequence of the deeds committed, and not just the evidence provided under paragraph (a) or (b), that should determine the sentences.

In conclusion, the Bloc Québécois hopes that Bill C-32 will be the subject of serious study in committee. I am sure that we can count on all parliamentarians to be thorough and rigorous in their work.

The House resumed from January 30 consideration of the motion that Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts, be read the second time and referred to a committee.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, I appreciate the fine words of welcome from the opposition House leader.

Today, of course, we will be continuing with the opposition motion. Tomorrow we will continue debate on the report stage amendments to Bill C-31, the election integrity act amendments with which we are all familiar.

For Monday and Tuesday, we are intending to call Bill C-26 on payday loans, which is at third reading, Bill C-32 on impaired driving, Bill C-11, the transport act, and Bill C-33, the technical income tax bill.

On Wednesday we hope to begin debate on the third reading stage of Bill C-31, followed by Bill C-44 relating to human rights.

Thursday, February 8 shall be an allotted day. Next Friday we would like to begin debate on the anti-terrorism motion that would extend the application of certain sections of the Anti-Terrorism Act that are due to expire.

Finally, as members know, democratic reform is a priority for Canada's new government, and given that the Liberal leader has publicly expressed his support for term limits for senators, could the official opposition inform the House as to when it can expect the unelected, unaccountable Liberal senators who are delaying and obstructing that bill to give us a chance to consider it here in the House of Commons?

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I would like to say that this is the first time that I stand in this House as the opposition justice critic and I am very pleased to do so.

It gives me great pleasure to speak to Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts.

As I just said in French, this is my first speech as the official opposition's justice critic. I look forward to working with my colleagues, be they in my party or in other parties, to provide intelligent, smart solutions to all justice issues that come before this House.

In considering Bill C-32, we must look at its history in order to understand it. The history of Bill C-32 goes back quite a few years, in fact to May 1999 when the House of Commons Standing Committee on Justice and Human Rights released a report entitled “Toward Eliminating Impaired Driving”.

The committee then recognized that drugs were a contributing factor to some fatal motor vehicle accidents. It also emphasized the need to develop better measures to detect drug impaired driving and to obtain the proper evidence allowing for the successful prosecution of individuals who drove while under the influence of drugs.

A further study on this issue was the Senate special committee on illegal drugs report entitled “Cannabis: Our Position for a Canadian Public Policy”. One of its important findings was that there was no reliable, non-intrusive, rapid roadside test for drugs. In the case of cannabis, the best way to test is through blood samples. This then obviously represents a challenge that needs to be met in order to address the problem of drug impaired driving.

In response to the 1999 report, the Department of Justice and its working group on impaired driving consulted extensively with the provinces and territories. The results of these consultations was the October 2003 release of the report entitled “Drug-Impaired Driving: Consultation Document”. This document pointed out that many drug impaired drivers were not voluntarily participating in testing. It does stress the need to develop measures that would allow police to demand that drivers suspected of being impaired by drug use would submit to testing.

The report highlighted two options. The first option was to set a legal limit on the presence of drugs on the body. The second option was to propose legislation that would improve the ability of our law enforcement, our police officers, to demand drug tests. A certified officer could demand a physical sobriety test or take a saliva or sweat sample at the roadside based on the reasonable suspicion of drug impairment. Failure on such a test would then represent reasonable grounds to conduct a more detailed evaluation and, obviously, more intrusive evaluation at a police station. The bill that is before us, Bill C-32, follows in the steps of this second option.

The House of Commons special committee report on the non-medical use of drugs released in the fall of 2003 called for Parliament to develop a strategy addressing the question of drug impaired driving. In April 2004, our then Liberal government, and it is quite coincidental I am sure that the present government bill carries the same number, reintroduced Bill C-32. That bill would have dealt with the drug impaired driving in the fashion described above. Unfortunately, the bill died on the order paper in May 2004 when an election was called.

The Liberals were re-elected, albeit as a minority government, and in November 2004 reintroduced that same bill but as Bill C-16, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts. That bill made its way to committee and was reported back to the House with some amendments. Unfortunately, that piece of legislation also died on the order paper when the election was called in November 2005.

Thus, the current minority Conservative government's Bill C-32 has followed in the footsteps taken by the previous Liberal government. The Conservatives, however, have chosen to reintroduce it with a few changes, namely, by incorporating stronger penalties than the Liberals' two previous bills had envisioned.

On the same topic, I noted that Canadian Press reported on the introduction of Bill C-2 with the following words. I am quoting from the November 22 wire which reads:

The federal Conservatives have brought in legislation to crack down on drug-impaired drivers--by resurrecting a plan first advanced by the Liberals, adding heavier fines and jail terms, and calling the result a Tory initiative.

I think that this description is accurate, and I can only commend the Tories for recognizing a great idea even when it was developed and first presented by another party, the Liberal Party when it was the government.

Now that we have discussed the background for the bill before us, we must examine the amendments it will make to the Criminal Code. The summary for Bill C-32 reads as follows:

This enactment amends the Criminal Code

(a) to create an offence of operating a motor vehicle while in possession of a controlled substance as defined in subsection 2(1) of the Controlled Drugs and Substances Act;

(b) to authorize specially trained peace officers to conduct tests to determine whether a person is impaired by a drug or a combination of alcohol and a drug;

(c) to authorize the taking of bodily fluids to test for the presence of alcohol or a drug;

(d) to create an offence of operating a motor vehicle with a concentration of alcohol in the blood that exceeds 80 mg of alcohol in 100 mL of blood and causing bodily harm or death to another person;

(e) to clarify what evidence a person accused of driving with a concentration of alcohol in the blood that exceeds 80 mg of alcohol in 100 mL of blood can introduce to raise a doubt that they were not committing the offence;

(f) to create an offence of refusing to provide a breath sample when the accused knows or ought to know that the accused’s operation of a motor vehicle caused an accident resulting in bodily harm to another person or death; and

(g) to increase the penalties for impaired driving.

The enactment also makes consequential amendments to other Acts.

As the Liberal justice critic, I want to say that my party takes very seriously problems of impaired driving caused by alcohol and/or other drugs. In my opinion, the proof of this is that, when we formed the government, we twice introduced a bill amending the Criminal Code to deal with this problem.

I believe the proof is there. We take this issue very seriously and we also take very seriously measures that are smart and effective and that have a good chance and even an excellent chance of achieving the intended objectives. Moreover, we support initiatives to provide services responsible for maintaining public order with concrete and effective tools to implement legislation aimed at cracking down on impaired driving caused by alcohol or other drugs.

We are therefore prepared to support Bill C-32 so that it can make its way to the Standing Committee on Justice and Human Rights. The committee could examine the bill in greater detail and summon witnesses and experts to give their own particular perspective. In addition, the committee could propose any amendments it deems necessary. However, I would like to say that we still have reservations about some aspects of this bill. We hope that the government will work constructively with all the opposition parties to address these reservations and that the most useful and most effective legislation will be adopted.

What concerns or reservations do we have about this bill?

Some hon. members have already voiced them.

The Canada Safety Council has already voiced some objections to roadside drug testing. It asks which type of drugs police would test for. Would it simply be illicit, illegal drugs, or would it also be drugs that are legal, in the sense that they are prescription drugs. The person could be in legal possession of those prescription drugs, but the effects of those drugs may cause impairment and it is clearly indicated, for instance, as part of the protocol for taking that drug.

How many of us have not come down with a bad cold or a bad infection, have been prescribed medication by our doctor and when we receive it at the pharmacy it clearly says on the label not to operate machinery or a moving vehicle while taking that medication.

The Canada Safety Council has concerns about what are the drugs that are going to be tested for and whether there will be the possibility of distinguishing between prescription drugs and illegal drugs. As well, how would we deal with the fact that there are certain drugs, like marijuana, which may linger in the body well after the initial high is over and well after the effects of impairment of one's abilities have completely dissipated but traces of the drug still remain?

The Canada Safety Council is asking these questions. How is this bill going to deal with these issues? These are questions that hopefully will be answered if this bill goes to committee.

As I said, as the Liberal critic I will be recommending to my colleagues to vote in favour to send it on to committee so that we can attempt to get answers to these questions and, if it is possible, to amend the bill. If we are given solid answers by experts who say that yes, we could do that and we could amend the legislation in such a way to ensure that it happened, then we would hope that we would get government cooperation in order to do so.

I had another question which was not answered by the parliamentary secretary during questions and comments. I asked whether or not studies had been done to determine in what percentage of cases where there has been death or injury caused by a motor vehicle and there is evidence of impairment--and let us just consider alcohol impairment--the Crown actually brought forth manslaughter charges, which includes the section of the Criminal Code that exists right now that deals with manslaughter and also includes death and injury caused by a vehicle, including impaired driving and provides for a maximum sentence of life.

I would like to know what scientific studies have been done to determine why it is that those provisions have not been used obviously sufficiently from what the parliamentary secretary said. He talked about people who are impaired causing carnage with their vehicles et cetera and that they are getting away with it because they are refusing to take the testing. Where are the problems? We have provisions right now but they appear not to be used. Why is that? What is the evidence that would show why they are not being used?

Finally, we know the government has announced that it will be placing $2 million to the benefit of our law enforcement in order to get the training and to do these roadside sobriety tests. How much money, if any, is the government planning to use to do a public education campaign?

History has shown that Canada-wide public education campaigns about impaired driving have been very well received by the public.

That is why today people have a designated driver when they spend an evening with friends or go to a party in a hall or restaurant where alcohol is served. Today, the vast majority of people resign themselves to drinking nothing. But if they do decide to drink, they have a designated driver.

Does the government plan to put money and people behind the idea of an education campaign on driving while under the influence not only of alcohol, but also drugs, for example? I would like to know. Perhaps the answers will come out during the committee hearings, if the House decides to refer this bill to committee.

Thank you very much, Mr. Speaker, and thank you to my colleagues in this House who are taking part in this debate. As I have already said, I recommend that my colleagues from all parties refer this bill to committee so that we can try to answer these questions and, if necessary, improve the bill.

[Rob Moore, Conservative, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased to rise today to speak to Bill C-32, an act to amend the Criminal Code and to make consequential amendments to other acts.

The bill would help bring Canada's impaired driving laws into the 21st century and would greatly assist the police in their efforts to investigate impaired driving incidents and the Crown in its prosecutions of alleged offenders.

I know all members recognize that impaired driving remains the single criminal offence that is most likely to result in the death or injury of Canadians. If passed, this legislation will make an immeasurable contribution to the safety of all Canadians. Therefore, I trust that all parties will support the legislation and that we can cooperate so that these needed changes can be considered by the standing committee expeditiously.

I can assure all members that the government is open to consideration of any improvements that the committee can suggest, after hearing from stakeholders, to make the bill even more effective in achieving its goals.

The bill has three main components.

First, it would give police officers the tools they need to investigate drug impaired driving.

Second, it would make changes that reflect the great advances made in breathalyzer technology since Parliament first introduced breath testing almost 40 years ago.

Third, it would introduce new offences and increase penalties for existing offences.

Many members of the House are familiar with the drug impaired provisions of the bill. They are virtually identical to the provisions of Bill C-16, which was introduced in an earlier Parliament. That bill was reviewed and amended in committee and reported unanimously with amendments by the committee. However, it died on the order paper.

There is no question that police and prosecutors are eagerly awaiting the passage of those changes.

I will therefore confine my remarks to the new provisions in Bill C-32 so that members will understand what motivated the government to bring these amendments forward.

Probably the most important change in this bill is the proposal to ensure that only scientifically valid defences can be used where a person is accused of driving with a concentration of alcohol exceeding 80 milligrams in 100 millilitres of blood. This is known as driving over 80.

Parliament first enacted an alcohol driving offence in 1921. Our current Criminal Code, section 253, subsection (a), offence of impaired driving, was enacted in 1951. It has been known for more than 50 years that a person with more than 80 milligrams of alcohol in their system is a danger to himself or herself and also to other users of the road.

A person with a blood alcohol concentration of 90 is estimated by the U.S. Department of Transportation to be at least 11 times as likely to be involved in a fatal accident as a sober driver. Above that level, the risk increases exponentially. At a blood alcohol level of 125, for example, a person is at least 29 times as likely to be involved in a fatal collision.

While recognizing the risk of collisions with escalating blood alcohol concentrations, the problem has always been how to prove the concentration. Determining BAC can be done by analyzing blood. However, obtaining a blood sample is often seen as intrusive and it can take a long time to complete the blood analysis, during which time the accused does not know whether a charge will be laid.

The problems with blood analysis were overcome in the 1950s with the invention of Borkenstein Breathalyzer, which converted alcohol in breath to alcohol in blood in a reliable, scientifically valid process.

Parliament recognized the risk of blood alcohol concentration that exceeded 80 when it passed, in 1969, legislation making it an offence to drive with that much alcohol or more in a person's system. It is a peculiarity of the law that it can only be proven by making the person provide the evidence that can be used against him or her in court. Accordingly Parliament made it an offence to refuse to provide the breath sample on an improved instrument.

Advances in technology made it possible to measure the BAC at roadside, so Parliament provided for the use of a roadside screening device in 1979. These screeners indicate that a person has failed but do not give a precise BAC for use in court. They do provide the police with grounds to demand the approved instrument test. The results from the approved instrument are admissible in court.

Again, it is an offence not to provide the breath sample on an approved screening device and it is an offence not to provide the breath sample on an approved instrument. The courts have recognized the unique nature of this law and they have upheld its constitutionality as a reasonable limit on the charter right against unreasonable search and seizure, a limit that is justified by the horrendous toll caused by drunk drivers.

Therefore, by 1979 Parliament had established a two-step process for determining whether a driver was over 80. It appears simple. A reasonable suspicion of alcohol in the driver leads to a roadside approved device screening test which, if failed, leads to an approved instrument test, in which over 80 is proven by filing the certificate of the qualified technician in court.

However, as all members are likely aware, impaired driving, and in particular over-80 cases, have become among the most complex cases to prove under the Criminal Code. It seems that every word and every comma in every section has been litigated. Anyone who doubts how complicated the law has become need only pick up Martin's Annual Criminal Code. The 2007 edition has 12 pages of legislative text and annotations for the 13 sections dealing with murder, manslaughter and infanticide. Martin's has 62 pages of legislated text and annotations for the nine sections dealing with impaired driving.

Subsection 253(b) over-80 cases take up a grossly disproportionate amount of provincial court trial time. Often this is the sole charge, as there is no evidence of erratic driving and there are few signs of impairment. If the defence can raise a reasonable doubt as to the BAC at the time of testing being equal to the BAC at the time of driving, the prosecution will virtually never have other evidence to prove that the person was over 80 at the time of driving.

When Parliament first adopted breath testing legislation in 1969, the operator had to perform a series of tests to ensure the approved instrument was calibrated properly and had to read a needle to obtain a reading, which was recorded manually. Clearly, there were opportunities for operator error and even erroneous transcription of the BAC.

Therefore, Parliament provided that the BAC reading is, in the absence of evidence to the contrary, deemed to be the BAC at the time of driving. Unfortunately, even for a new generation of approved instruments that give digital readings, have automated internal checks and give a printout of the internal process, the courts have interpreted evidence to the contrary to include evidence given by the accused that he only had a small quantity of alcohol to drink, typically “two beer”. This has become known as the two-beer defence.

The defence then calls a toxicologist to estimate the defendant's BAC based on the accused's testimony regarding consumption of alcohol, time elapsed, food consumption, et cetera. Essentially, the accused is saying that regardless of the BAC at the time of testing, his or her BAC while driving could not have been over 80 given the small amount of alcohol consumed.

The accused does not have to account for the BAC reading on the approved instrument at the police station. The courts, unless they reject totally the accused's evidence, hold that the presumption that the BAC at testing equals the BAC at the time of driving is defeated. Without this presumption, the prosecution does not have evidence to prove the over-80 offence. The defendant is acquitted for a lack of evidence showing the illegal BAC at the time of driving.

The Supreme Court considered evidence to the contrary in December 2005, where the accused, who had blown .092, testified that he had only two large beer. Although the conviction was restored, the decision turned solely on the credibility of the accused and whether the judge had properly considered the evidence as a whole.

The majority found, at paragraph 43, that:

The judge also erred when she stated that the credibility of the accused and his witnesses could be assessed in light of the results of the breathalyzer tests before applying the presumption.

Consequently, the Supreme Court has effectively found that the results of a breath test can be disregarded by the trial judge and the accused found not guilty without any evidence whatsoever that the machine has malfunctioned, at least for the “presumption of accuracy for the qualified technician's certificate”. Even if the court is suspicious of the accused's evidence, the presumption is lost because the accused only has to meet the test of raising any evidence to the contrary.

Frankly, this may be a misunderstanding of what “evidence to the contrary” was intended by Parliament to be. Parliament passed the breathalyzer law in 1969, so the calculation of BAC would be done by the approved instrument, which takes the guesswork out of the equation provided the approved instrument is functioning properly, the operator uses it properly and the results are properly recorded.

The court's interpretation may have been justified when the technology was such that operator error could affect it and there would be no direct evidence of this. Therefore, it is very much a defence that reflects the weaknesses of technology in use some 40 years ago. It was not, I believe, Parliament's intention that evidence to the contrary should be simply speculation about what an accused BAC might have been.

Given today's state of technology, evidence to the contrary must be direct evidence that the machine either did not operate properly or was not operated properly. If there is no such evidence, then the BAC produced by the machine should be accepted.

The accused may still be acquitted if he or she can show that they could have been under 80 at the time driving without contradicting the BAC results on the approved instrument at the police station. This could happen if, for example, the person downed several drinks and was arrested before the alcohol was absorbed. It could also occur that after driving, but before testing, the person consumed alcohol and it was absorbed by the time the approved instrument test was taken.

The fundamental question for Parliament is whether it can trust the BAC readings produced by the approved instruments. Fortunately, advances in technology ensure that the accused receives full disclosure of more modern approved evidence tests through the printout of the internal operations of the equipment.

In March of last year, the justice department commissioned from Mr. Brian Hodgson, a forensic toxicologist and the chair of the alcohol test committee of the Canadian Society of Forensic Science, a report on the validity of breath testing. I will be happy to provide a copy of this report to any member who wishes it. I trust that Mr. Hodgson will be called as a witness by the standing committee if we send the bill for review after second reading.

Let me summarize his paper this way. He wrote that the Breathalyzer is entirely manually operated and therefore the reliability is vulnerable to human error. The test results are handwritten by the operator and vulnerable to transcription error. The advanced instruments have preprogrammed functions that minimize human operator error. He continued, saying that, for example, when electrical power is first turned on, all instruments must reach a specified operating temperature and the operator can then proceed with the testing of the subject. With the Breathalyzer, this function is the responsibility of the operator. The advanced instruments will not operate until the specified temperature is reached and have preprogrammed safety checks that will signal problems by means of error messages and will abort the testing procedure.

These approved instruments are highly sophisticated and have to pass a rigorous evaluation process before the alcohol test committee recommends that they be listed as approved instruments under the Criminal Code for use in the courts. One does not buy these instruments off the shelf at Wal-Mart. Perhaps the standing committee can arrange to have a demonstration of the older instruments and the new instruments so they will be better able to appreciate the differences.

In light of this science and the developments with the approved instruments, it is unfortunate that our courts have failed to reflect in their jurisprudence the evolution of the technology. Ignoring the BAC produced by one of the modern approved instruments and substituting for its accurate, scientific analysis of breath alcohol a calculation based on the testimony of the accused is deeply discouraging to the police and prosecutors, who have done everything that Parliament has prescribed.

As far back as 1986, the alcohol test committee expressed concern over the courts accepting testimony that effectively contradicted the approved instrument. In 1999, evidence to the contrary was discussed during the special hearings of the standing committee regarding impaired driving.

The committee wrote:

The Committee understands the frustration expressed by justice system personnel over time-consuming defenses that, at least on the surface, may appear frivolous. However, given that the accused would have no effective means of checking the accuracy of a breath analysis machine, the Committee agrees that limiting the interpretation of “evidence to the contrary” in such a manner as recommended could effectively amount to the creation of an absolute liability criminal offence. Such a result would run the risk of interfering with an accused person's rights guaranteed by the Canadian Charter of Rights and Freedoms. In present circumstances, therefore, the Committee does not support amendments to the Criminal Code that would limit the interpretation of “evidence to the contrary”.

Circumstances certainly have changed. We now have modern technology that not only is designed to eliminate operator error but also prints out the results of its internal diagnostic checks that ensure it is operating accurately. The accused receives a copy of that printout and can make full answer in defence.

It is just as unacceptable to ignore the approved instrument BAC reading in favour of the testimony of the defendant and his or her friends as it would be for a court to ignore DNA found on the victim that analysis shows comes from the accused because he or she and a few friends testified that the accused was not at the scene of the crime, with no explanation as to how the DNA happened to be there.

As MADD Canada's CEO Andrew Murie said in a press release calling for rapid passage of this bill:

Canada appears to be the only country that throws out the results of the evidentiary breath and blood samples based on the unsubstantiated, self-serving testimony of an accused impaired driver. We are very pleased to see the government limit these challenges.

I believe members will agree that a person who has been drinking is unlikely to have an exact recollection of the amount of alcohol he or she consumed and it is appropriate that the blood alcohol content of the driver be established by a scientifically validated instrument that gives an exact reading rather than by a calculation based on such a shaky foundation.

The amendments that we are proposing abolish the loose, undefined concept of “evidence to the contrary” and list the actual scientifically valid offences that an accused can bring forward.

We are also reflecting in Bill C-32 the advances in technology by reducing from 15 minutes to three minutes the time required between the two required breath tests. The old breathalyzers required at least 10 minutes between tests for the operator to set the instrument back up so that it was ready for another test. The new instruments are ready in a matter of minutes and they signal to the operator that they are ready to proceed.

Although there are other technical changes in the bill, I wish to conclude my remarks by discussing the changes in the offences and the new punishments.

The Criminal Code currently provides for higher maximum penalties for impaired driving causing death and impaired driving causing bodily harm. These higher penalties do not apply to refusal in over-80 offences, so unless there is also a conviction for causing bodily harm or death arising from the incident, a lower maximum penalty applies.

While evidence of BAC is not a prerequisite in order to prove the charge of impaired driving causing death or bodily harm, it is admissible in court. There is, therefore, an incentive for the accused to refuse to provide a sample in a case involving injury or death, because the maximum penalty for a refusal is five years.

Even if it is admitted, the BAC reading is not necessarily sufficient to prove the offender was impaired. The Crown has to call a toxicologist to establish, as I have said, what has been known for more than 50 years, namely, that a person who is over 80 is impaired. Virtually all toxicologists agree that at 100 milligrams each person's ability to operate a vehicle is impaired.

We propose to eliminate this incentive to refuse by making a person who is over 80 and is the cause of a collision resulting in death or bodily harm, or who refuses to provide a breath sample knowing of the death or bodily harm, subject to the same penalties as the driver who, while impaired by alcohol or a drug, caused a death or bodily harm.

As for the penalties for impaired driving where there is no death or injury, the government believes they do not adequately reflect the seriousness of this offence. We are proposing to raise the minimum fine for a first offence to $1,000. When combined with the prohibitions on driving, provincial licence suspensions and higher insurance costs, this should be enough to convince the person not to commit the offence again.

However, for those who do commit another offence, we propose that they be subject to imprisonment for a minimum 30 days on a second offence instead of the current 14 days. For a third offence, we propose 120 days rather than the current 90 days' imprisonment.

I am indeed pleased to recommend to the House that it give second reading to Bill C-32. I urge all members to support it.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

moved that Bill C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts, be read the second time and referred to a committee.

Business of the House

[Rob Nicholson, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, I am pleased to confirm that the holiday season will be beginning in due course. In the meantime, we will continue with Bill C-37, the tax convention; Bill C-12, financial institutions; and Bill C-36, an act to amend the Canada Pension Plan and the Old Age Security Act.

Tomorrow we will begin the third reading of Bill C-28, budget tax measures.

We will continue next week with the business from this week, with the addition of Bill C-40, sales tax; Bill C-32, impaired driving; Bill C-33, technical income tax; Bill C-35, bail reform; and, of course, as is the tradition, as the member would know, it is great to get into a prebudget debate and that usually lasts about two days.

We have a busy agenda and I look forward to the cooperation of the hon. member. I am sure we will have further discussions on this.