I will be addressing the amendments in paragraphs 258(1)(c), (d), (d.01), and (d.1) of the code. These are dealing with what is commonly known as evidence to the contrary.
The proposed amendment will require an accused person to show either machine malfunction or improper operation to avoid conviction for an over-80-milligram offence. If this amendment is passed and it survives charter scrutiny and charter litigation, it will have numerous, far-reaching implications, and in addition there will be significant cost, both in time and money, in regard to over-80 litigation.
This is a disturbing and unprecedented provision in criminal law. This is a provision that really creates an unrebuttable presumption. Since blood alcohol measures cannot be measured at the time of driving—you can't stick a needle into the arm of someone who's driving—there's a presumption that's been created known as the “relating back provision” that is really a shortcut for the crown to prove that someone is over-80 at the time.
However, this proposed amendment puts a significant and somewhat impossible burden on persons who may be factually innocent. When I'm talking about factual innocence, I'm not talking about legal innocence, not talking about raising a reasonable doubt, but talking about people whose actual blood alcohol levels at the time of the offence are under the legal limit, people who have done nothing wrong, and people who are not at risk to harm others or themselves.
Under this legislation, people will be convicted and will suffer the stigma of a criminal record and all the consequences of a criminal conviction—people who are as a matter of fact legally and factually innocent.
This amendment is premised on the supposition that the Intoxilyzer 5000C is an infallible machine. No machine is infallible. In fact, Intoxilyzers do not measure blood alcohol content. What they do is estimate blood alcohol content based on a blood-breath ratio. These are fast machines. They're machines that give an instantaneous reading. They're machines that are much quicker than machines used in hospitals to actually analyze blood. They're machines that are much cheaper than those used in hospitals to actually analyze blood.
I ask myself, and you may want to ask yourselves, if these machines are really that accurate and that infallible, why aren't all of the hospitals using these Intoxilyzers instead of expensive, much more time-consuming blood machines?
Just improving an instrument does not make it infallible. Just being approved by our alcohol test standards committee does not make an instrument infallible. We don't have to look any further than the experience that I know occurred in Ontario.
There was a machine known as the ALERT model J3A. It was an approved screening device, it went through all the tests, it was approved under the Criminal Code, it was designated. It was used for about 15 years, until someone realized that in fact it wasn't an approved instrument, and it was recalled.
This proposed amendment will entirely take away from the trier of fact, whether it be a judge or a jury, the ability to determine guilt or innocence. Criminal trials, if you bring them down to a simple level, are really simple: the crown and the police get up and say he did it; the accused gets up and gives the reasons why he did it. You have a judge decide. That's what judges do.
This amendment entirely takes away that possibility, unless you can show that the machine was either being improperly operated or was malfunctioning, and if you can't show that, quite frankly, you're guilty.
This is an extreme amendment. There is no other provision in the Criminal Code that has this sort of requirement, this sort of what I call an erosion of the presumption of innocence.
I just want to give you a few examples where you may see people who are legally innocent—their blood alcohol level as a matter of fact is below the legal limit—being convicted.
My friend earlier gave the example about someone going to a private health clinic for a blood test. Quite often, breath samples are taken at the hospital at the same time as blood samples are taken. If there is a difference between the two—in other words, the blood sample is below the legal limit but the breath sample is above the legal limit—in anyone's mind that would be a reasonable doubt, or even further, the person is probably innocent. Under this legislation, too bad. Unless the accused can show a problem with the machine or operation, he's guilty.
You may have a situation where a judge doesn't find that someone's evidence raises a reasonable doubt. They go farther and say, “I believe Mr. Jones' evidence. I believe all his witnesses.” It doesn't matter. The judge, notwithstanding that, under this legislation is going to be compelled to find that person guilty.
Let me give you another example. Someone drives home, they park their car, they put it in the garage, they lock the door, and they have a few drinks. For some reason the police show up and breath samples are taken. There's no doubt that the person had nothing to drink beforehand. Under this legislation that person will be found guilty, unless they can show a number of things.
I suggest to you that if this legislation is passed, we're heading down a very dangerous, slippery, and sliding slope.
Let's apply the ideology of this legislation to other cases. Let's say we apply it to a DNA case. We all know DNA is infallible. Could you imagine if the Criminal Code were amended to say in a sexual assault case that if someone's DNA is found there, they can't raise the defence that they weren't there. They can't. They could show you a plane ticket. They could show you a video that they were in another country. No one would support that type of legislation.
It's the same thing with the fingerprint. We all know fingerprints are infallible. What happens if the legislation were amended so that if your fingerprint is found on a document you're deemed to have created that document? You have no right to defend that. That's what judges do. They take a look at the facts and they determine who they believe.
This is the recipe for a wrongful conviction. There will be wrongful convictions.
I can tell you, as a lawyer who specializes in defending drinking-and-driving cases--and there are a number of us--that if this legislation is passed, we're not going to lie down, wave the white flag, and say you've got us. It's just not going to happen. What will happen is that there will be significant litigation to attack both the operation and the functioning of those machines. Judges are going to be ordering--and I can tell you this will happen--production of maintenance logs, which they're not doing now. They're going to be ordering production of training manuals. There are going to be source code litigations on the manufacturers themselves, which are third-party applications. You're going to have lengthier trials.
There's an amendment here dealing with certificates so the breath technicians don't have to come to court. You can forget that. I can tell you that we're going to insist on it now. We're entitled to cross-examine the breath technician on every single case.
You're going to see subpoenas, which we see in the States, for the actual breath machines to be brought to court for independent analysis.
In closing, let me just leave you with this. If this amendment is passed, I'll grant you this: you're certainly going to convict a lot more people who are guilty, but you're going to erode presumption of innocence, and you're also going to convict a lot of innocent people. In due course someone is going to have to clean up the mess of these wrongful convictions.
You also had better prepare to allocate a greater number of resources. Anyone who practises criminal law in a jurisdiction where there's a backlog--whether it's a crown attorney, a defence lawyer, or a judge--will tell you that the source of the backlog is litigation over drinking-and-driving offences. The harder the penalties are, the more people will litigate.
If you want to pass these types of amendments that are going to lengthen trials, you'd better build a bunch more courthouses. You'd better hire yourself a bunch more judges to sit in these courtrooms, and while you're at it, throw in a bunch more crown attorneys.
More importantly, and lastly, I can tell you it will make CMI, the manufacturer of the Intoxilyzer 5000C, because you'll need to order a lot of those machines. A lot of those machines are going to be stuck in exhibit rooms and courtrooms, as opposed to police detachments.
Thank you.