Good morning. As you say, I am responsible for coordinating the work of the Criminal Law Committee of the Quebec Bar. That Committee is made up equally of members who are defence lawyers and Crown attorneys. Academia is also represented on the Committee. With me today is Mr. Belleau, who will answer questions, as appropriate.
To begin with, I would like to summarize the Quebec Bar's position on Bill C-32. What we can say, right from the start, is that we agree with the goal being pursued through this bill, which is to establish rules to ensure effective action against impaired driving under the influence of drugs. However, we do have some concerns that we would like to make you aware of.
This bill creates a new offence—that is, the operation or the fact of having the care or control of a motor vehicle while in possession of a controlled substance, within the meaning of the Controlled Drugs and Substances Act. The Quebec Bar believes that there is no rational link between the intent of the bill and the offence of possession. In the absence of a breach of the driver's obligation, there should be no such offence. The offence of possession is, in fact, already provided for under the Controlled Drugs and Substances Act.
Furthermore, the penalties that are suggested for a first conviction on the new offence, which is an order prohibiting the offender from operating a motor vehicle for a period of at least a year, with no access to mitigation measures, appears to us to be unduly harsh, considering the absence of a logical connection between the offence of possession of a controlled substance and the prohibition to operate a motor vehicle.
We agree with changes that would allow a peace officer to make a video recording of a performance of the physical coordination tests. However, we would like there to be an obligation, on the part of peace officers, to systematically make such video recordings, in order that the best possible evidence be available. This would probably limit the nature and scope of legal debate on these issues.
With respect to sentencing, the Quebec Bar advocates the free exercise of judicial discretion by the court in order to ensure that punishment is just, by balancing the relevant principles. In that respect, the Quebec Bar cannot support the changes proposed in the bill with respect to the minimum fine for a first offence and the minimum prison term for a subsequent offence.
The effects of imposing a minimum fine will vary based on the financial circumstances of the accused. The Quebec Bar is concerned about the negative repercussions of such a penalty on the offender's family. Indeed, imposing a prison term of no less than 90 days for a third offence would mean that the sentence could not be served intermittently. That could have unfortunate consequences, such as the loss of employment, for example, and would clearly affect other members of the accused's family.
The bill also provides that, in the absence of evidence tending to show both that the approved instrument malfunctioned or was used incorrectly, or that, when the analysis was performed, the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams of alcohol per 100 millilitres of blood, evidence corresponding to the results of the analysis will constitute conclusive proof of the accused's blood alcohol level at the time the offence was alleged to have been committed.
The Quebec Bar is concerned about this double requirement of evidence and its consequences. We believe that conclusive proof as to the malfunction or improper use of the equipment should suffice to reject the test results. Otherwise, we believe this provision is likely to violate the presumption of innocence.
The bill also proposes to make it impossible to adduce direct evidence of a blood alcohol level of less than 0.08 with a view to challenging the instrument results. We are concerned that this could lead to wrongful convictions. As an illustration, we would cite the example of an accused who, after failing such a test, decided on his own to go to a health clinic for the purposes of determining, through a blood test, what his blood alcohol level was. If the results of that test showed the level to be under the limit, that person would not have an opportunity to adduce that direct evidence if he or she had been unable to prove that the instrument malfunctioned or was operated improperly.
The Quebec Bar is also concerned about the difficulties an accused could encounter when attempting to demonstrate that the instrument malfunctioned or was used incorrectly. What exactly would he or she have access to?
Those are our comments.