I would like to thank the committee on behalf of the Association québécoise des avocats et avocates de la défense, and to express my own thanks, for giving us the opportunity to offer our point of view on certain parts of BillC-2.
Our association believes in the supremacy of the Constitution, in the rule of law, and in the separation of executive, legislative and judiciary powers. It believes in our justice system that is based on the presumption of innocence and that requires the state to establish guilt beyond a reasonable doubt, after a fair and equitable trial, before an independent and impartial judge who is knowledgeable of the law and of the realities of his community.
We do not have a great deal of time today to cover all the significant changes that Bill C-2 would bring about and that we would like to comment on. We have therefore prepared a short document that highlights some of our concerns. This document will be distributed in due course.
I now refer to the amendments that deal with mandatory minimum prison sentences. In a word, we are suggesting that you amend the Criminal Code to list the aggravating factors that would result in more severe punishments, and that you not deal with mandatory minimum sentences.
With regard to the amendments dealing with the age of consent to sexual activity, there seems to be a contradiction between, on the one hand, the Young Offenders' Act that requires everyone to be accountable for his or her actions from the age of 14, and, on the other, the fact that a person of the same age is not able to consent to a non-exploitative sexual act.
I would like to take some more time today to speak to you about the amendments dealing with conduct when a person is impaired by alcohol or drugs. Bill C-2 makes significant changes in this area. Presently, section 254 of the Criminal Code allows peace officers who have reasonable and probable grounds to believe that a person has committed an offence to require that person to provide a breath sample in an approved instrument. Furthermore, under section 258, the Crown can make certain legal presumptions to facilitate the prosecution's work. Persons arrested under section 254 must comply and must provide the required breath samples if the samples are collected in an approved instrument.
The Alcohol Test Committee recommends approved instruments to Parliament. This committee—and I will shortly provide you with documentation—also conducts exhaustive tests before recommending to Parliament that an instrument be approved. After these rigorous tests and as the result of the committee's recommendation, Parliament accepts an instrument. This same committee makes recommendations to police services and to provinces, who are responsible for maintaining the devices and for all the programs that have to do with breathalyzers such as training, the courses given to qualified technicians, and so on.
In Canada, laboratories of three kinds are responsible for advising provinces and police services on matters of forensic science. These are the RCMP laboratories that serve eight provinces, the laboratory in Ontario, and the forensic laboratory in Quebec. It is important to understand that programs are not uniform across Canada. Maintaining these devices remains the responsibility of police services.
In one recent case, we found that there was no maintenance program for the Intoxilyzer 5000C devices used by police in Montreal. They were purchased in 1996. They are repaired if they malfunction, but, if they do not, their performance is not checked.
That goes against the recommendations of the Alcohol Test Committee that advises Parliament. So, the Montreal police is not following the recommendations of the Alcohol Test Committee, nor those of the manufacturer, concerning the maintenance of the devices.
After my remarks, Mr. Jean Charbonneau will provide you with more explanation of the legal and technical considerations. Though the case is not over, the legal community in Montreal has concerns for natural justice when these devices are used.
If BillC-2is passed in its present form, the situation will be even worse, because it removes our ability to present evidence to the contrary, as we can today. The Supreme Court of Canada has held that, given that it is possible to present evidence to the contrary, the presumptions of the Criminal Code are reasonable.
Our position is that if the bill is passed in its present form, it will no longer be possible to present evidence to the contrary, and the presumptions will be almost impossible to contest. It is almost impossible for an accused to show that the device was not working properly on the day when he provided samples. We will then be in a situation where thousands of people will provide samples, because they have no other choice. There will be a presumption of guilt and it will be almost impossible to present evidence to the contrary if the bill is passed in its present form.
We may present evidence showing that the device was possibly not reliable, or that there were perhaps errors on the day when our client provided samples. But the Supreme Court of Canada's 2005 decision in the Boucher case defines evidence to the contrary. The definition does not include speculative evidence. We can show that the device is not reliable and that its results cannot be relied on today. But since this is not sufficient evidence to the contrary, we cannot present it, and we certainly will not be able to after Bill C-2 is passed.
Furthermore, the present situation...