Justice Committee on May 30th, 2007

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I have another question, Mr. Yost, because when we examine this bill in depth, I want to be sure I know how you crafted it.

You know full well—and the question was put by our parliamentary secretary to the minister—that what we call "countering evidence", or "the two-beer defence" accepted by the Supreme Court is used to counter the breathalyzer results when an individual affirms that he or she has not consumed more than a certain quantity of alcohol. You summon a chemist who makes a statement, either in writing or before the court. He produces a supporting document, after which the client can be acquitted. That often happens when the charge is alcohol-related.

The police officer expresses himself very well, we can see he knows his job, and that is great. Except where "countering evidence" or "the two-beer defence" comes up, we take samples to determine intoxication rate with a specific drug. We might have charts indicating individuals' height and size as factors. You know, as I do, that a good chemist will be summoned to court. In fact, I would bring him with me and my client, I imagine, and I will have my client say that he took only a small amount of drug, or no drug at all. As the police officer was saying, a small amount of marijuana is equivalent to a single beer. So, we would let the client go. I would therefore tell my client to tell the judge that he has taken only a small amount of marijuana. In fact, he has taken somewhat more, but with the testimony of a good chemist, I can contradict the report of the police chemist.

In the legislation, have you provided for the kind of experience we have had with breathalyzer tests? Have you shut the gate on "countering evidence" or "the two-beer defence"? Have you done the same for drugs?

[Greg Yost]

Not really. We have a problem, as you mentioned, with concentration. We already discussed it. Actually, the effects of different drugs vary so much from one individual to another that we cannot tell what quantity will...

I hope that you will put the same questions to the drug recognition experts when they appear before you. We cannot conclude that if so many parts per million of marijuana or cocaine were detected, it is therefore clear that the person's faculties are impaired because anyone with that level of concentration in their body would have problems.

The quantity could be very high. However, we have no reliable instruments. Moreover, there is no set legal limit like the 80 milligrams per 100 millilitres established for alcohol by the legislation. Therefore, we cannot shut the gate, as you say. We can shut the gate on the "two-beer defence", because we have an instrument that is very accurate, modern, etc., that gives us reliable results and proves that you have exceeded the limit established by Parliament. However, because we have no established limit for drugs, we cannot say that a crime has been committed, because there is no prescribed concentration level.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Mr. Kamp.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

Thank you, Mr. Chair.

I have just a quick question. I don't know if you can answer it for me, Mr. Yost, but Bill C-32 and its predecessor, Bill C-16, have been in the public domain for a while now. I'm assuming there's generally widespread support, at least among the law enforcement community and parliamentarians.

Can you tell us who is not supportive of this initiative and the approach they're taking?

[Greg Yost]

I would guess the defence counsel, when they come here, will not be big fans of this particular legislation.

We've been struggling with the issue of evidence to the contrary, and drugs. Basically, in 1999 a parliamentary committee, which reviewed all of the impaired driving laws, identified these as things that we should be working on. We went down what I'd only call the wrong path, as it turned out, with respect to evidence to the contrary.

We were going to try to follow what they do in Australia and New Zealand, which is basically that you fail, and that's very nice, but now if you want to challenge it, you'd better go and get yourself a medical test. When we took that out beyond our policy types and talked to the police, they said, at 2 o'clock in the morning in rural Saskatchewan, you're going to send somebody out to try to get a blood test? It wouldn't work. It would be an ineffective defence.

That's why we then, working with the experts from the Canadian Society of Forensic Science, came up with the machines as they are now, which are reliable. The machines produce printouts, and the legislation allows these printouts to go in, which will show that the machine was working before it took the sample and it was working right after it took the sample, so it was working when it got the sample. I'm not aware of any others who have been opposing it.

As for the drug recognition part, this is the third time we're trying to get this through Parliament. I believe it's accepted pretty well everywhere that this is the only reliable program we can find now. There is no magic technological bullet yet.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Kamp and Mr. Yost.

Mr. Lee has a comment to make, and after that time I think we'll conclude.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I have a question, but I don't expect an answer. It's something that will come up later.

We're replacing most of section 254 of the code. In the proposed section, we add in the matter of the presence of a drug in the body of the suspect. The belief that there has been the consumption of a drug within the previous three hours allows the policeman to require a test and allows the police officer to require the person to accompany the police officer for the purpose of taking those tests. And throughout all of that there is no requirement, as I read it, that there is a reasonable belief that there has been impairment, only that there is a drug in the body of that person.

So I'm leaving that issue there, as to whether we really want to have that. I assume we would want to have reasonable belief of impairment before we require the subject to do tests and accompany the police officer, which might be to a police detachment a half-hour away somewhere.

[The Chair, Conservative, Art Hanger]

Mr. Yost.

[Greg Yost]

The legislation in proposed paragraph 254(2)(a) allows the officer to require the person to perform forthwith the physical coordination test, and “forthwith” basically means right there at the side of the road. It does not allow him to require the person to accompany him to the station. The accompanying to the station is if the person fails that test, whereupon the police officer has the reasonable and probable grounds that the person is impaired. Now, that might be impaired by alcohol, by a drug, or by a combination.

Obviously if they have the approved screening device handy and they think it's alcohol, they use that. The standard field sobriety testing will be when they have the suspicion of alcohol or drugs and they want to see whether the person can perform, in a normal way, the physical test. If they succeed with that, it's all over; he drives away. He's not required to accompany the officer unless the officer can form those reasonable and probable grounds to take him to the DRE.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I've read this proposed subsection (2) of 254, and I don't see.... There are only reasonable grounds to suspect that the person has taken the drug, not that they were impaired. I've read it, and I don't see it.

Secondly, it's very clear that at the very end of proposed paragraph 254(2)(a), it says that the police officer can require the person “to accompany the peace officer for that purpose”--“to accompany”, which may not be the equivalent of an arrest, but it does--

[Greg Yost]

It's a detention.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

It's a detention. That is only after, as I read it, the peace officer believes that the person has consumed a drug, not that they were impaired.

[The Chair, Conservative, Art Hanger]

Mr. Yost.

[Greg Yost]

We'll discuss that perhaps further, but there may be circumstances where you don't want that person right there: “Come over here where you're away from traffic; accompany me over there”, to do that sort of thing. We'll think about that wording, but it's certainly not the intention that he can take you for a 20-minute drive to do this. It's supposed to be forthwith.

[The Chair, Conservative, Art Hanger]

Did you have any comment to make, Corporal?

[Cpl Evan Graham]

No, thanks.

[The Chair, Conservative, Art Hanger]

Thank you very much, committee members.

On behalf of the committee members, thanks for staying for the full two hours, past the minister's time.

This meeting is adjourned.