Justice Committee on June 7th, 2007

[The Chair, Conservative, Art Hanger]

Mr. Solomon, I know this is an interesting discussion that we're having here. It's certainly essential to the committee in terms of our accumulation of information, but I do have other questioners. Unless the committee indicates otherwise, we can allow this debate to continue on with them.

Other than that, I'll just go over to Mr. Comartin.

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

Thank you, Mr. Chair.

I thank you all for being here.

Mr. Tousaw, on the study that you referred to in Oregon, my understanding of that and some of the other ones in which we're seeing a failure rate in the 20-percentile range is that the 20% includes not a failure of an assessment of impairment but a failure of accurately describing which of the drugs the person used that led to the impairment. Is that correct?

What I'm trying to say to you is that it's a bit disingenuous to say there is an absolute 20% to 25% failure rate. It's not a 20% to 25% failure rate of testing for impairment. It's the type of drug that underlies the impairment.

[Kirk Tousaw]

The Oregon study actually allowed officers to choose two categories of drugs, so the failure rate is only reflected if they were wrong on both.

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

They were wrong about the drug, not wrong about impairment.

[Kirk Tousaw]

But the question of impairment isn't contemplated in the study at all. It's a question about whether the test was able to tell whether or not the drug was in the system. The question of impairment is a wholly different question from the question of whether or not you have the presence of drugs or drug metabolites in your system. That's really one of the biggest problems with the bill. The bill seeks to determine the presence of drugs in the system. The impairment piece comes well before that.

There's a question of why on earth we are putting people through this invasive procedure when it is in fact not indicative of the question, which is whether or not the person is impaired.

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

Mr. Brayford, I want to make a statement first and then I want to challenge you.

What I see and what I strongly believe has happened in Ontario—I haven't studied the rest of the provinces, so I can't comment on them—is that our courts, in effect, our judges, have been forced to accept the two-beer defence. I hear that from some of the judges. When you study not only Carter but the cases that have flowed out of Carter and have occurred subsequent to Carter, when judges have rejected this defence, they've been appealed. The Court of Appeal for Ontario has been very strong on this and has effectively said the judges can't reject it. That's what the provincial court judges right across the province believe at this point. Based on the Carter decision and subsequent ones from the Court of Appeal, that's the reality in the province.

It's not like we're precluding evidence. It's evidence that absolutely has to come in, has to be accepted, even when the trial judges don't believe it themselves, based on the decisions flowing from Carter. That's the reality in Ontario.

I want to challenge you, and I have to say to you that you blew some of your credibility when you made this point. You have a person who has gotten on the stand and said—and the judge has been forced to accept this evidence—that the breathalyzer is wrong because they only had two beers. How are you going to expect the judge to then convict him of impaired driving? If you have to accept that the person only had two beers, how can you then convict him of impaired driving? That just doesn't happen. That's never been my experience. If you can't get him on the breathalyzer in those circumstances, then you're not going to get him on impaired.

I really had some difficulty with your description of the fallback, and I know the Court of Appeal for Ontario has said the same thing. The court has said to forget about the breathalyzer charge but to convict him of impaired, after saying that you have to accept the evidence of the two-beer defence. It's impractical. That's not what happens in the courtroom. If you beat 0.08, you're going to beat impaired too.

[Mark Brayford]

Perhaps I didn't express myself very well, because what I'm saying is this. If we go back to when Dr. Borkenstein introduced the breathalyzer, his view was that the test should be confirmatory of physical observations and that it should take both to convict someone.

What I'm saying is that if you have someone who is displaying symptoms of impairment that are marked at all, they will probably be convicted of impaired driving. The judge can use those symptoms of impaired driving, if the judge so chooses, as a basis for disbelieving the accused's testimony that they only had a small amount to drink.

If you deal with—

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

Let me interrupt you. I want to know your experience in the western provinces. In Ontario, the provincial court judges are telling me they have lost the ability to reject that evidence. It's contrary evidence, as interpreted by the Court of Appeal, and they have to accept it.

[Mark Brayford]

I only agree with that to this extent: where there is no basis on which the physical observations by the police officer would permit him to say, “I disbelieve the accused”. All a judge needs to have before the court in order to reject the two-beer defence is a basis on which to say, “I do not accept that testimony”. If the judge can say, “I do not accept that this person only had this amount to drink, and I have no doubt they drank much more than tha—”. If they have a basis to say that, then there will be a conviction that will stand. That basis can come as a result of a contradiction between people testifying as to how much they drank. Or it may well be simply that the physical description is consistent with only one conclusion, and that is that they were falling down drunk.

What I think may have caught some judges by surprise—and we're speculating here—is those cases in which there is really nothing but a low reading, not much for observations at all, and very plain, matter-of-fact sworn evidence, under oath, where someone says, “This is all I drank. I'm under oath, I'm telling the truth, and this is what I drank.” Yes, in those cases there should be an acquittal, according to the Court of Appeal, and I agree. If the judge doesn't have a basis for saying why they're finding the accused to be a liar, they would be reversed. They need to be able to explain why they're convinced the accused is a liar.

We're talking about something where the person has to go on the witness stand and commit perjury. These people aren't all committing perjury. Maybe some are, but a lot may well not be.

One of the things that I think we do overlook—and I'll be very brief—is that this new bill makes a comment about videotape testimony at proposed subsection 254(2.1). Quite frankly, a lot of our concerns could be beneficially addressed if, rather than saying, “For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a)”, in drunk driving law there should be an adverse influence if everything isn't videotaped

Videotapes cost nothing now. They can be e-mailed to defence counsel at no cost after they've been collected. It would cost us nothing. It would be a very effective enforcement tool. I often now do get them in some cases. Quite frankly, I'm waiting for one right now. If my client has bad symptoms on the videotape, I'll be pleading him guilty. If not, he has a very obvious defence.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brayford.

Mr. Dykstra.

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

Thank you, Mr. Chair.

Mr. Brayford, this is the second session that this committee has had, and one of the issues that continues to come out is the fallibility or infallibility of the machines that obviously are used to test. You made a comment that there may be an individual who drank nothing yet tested at 200. Could you tell me, in a case, how that happened?

[Mark Brayford]

That's using an extreme example. To use a better example, if you have some degree of alcohol consumed, there's a multiplicity of other reasons why you may get a falsely high reading for a small amount. For hyperbole, I used an extreme example, but without some actual alcohol, you're unlikely to get some reading.

Just by way of example, if you were to simply swish alcohol in your mouth—you're not swallowing it, just swishing it around in your mouth—and then spit it out, you would show a blood alcohol level that would be fatal if you were then tested by a breath device. The Intoxilyzer had a slope detector put into it that was to try to help deal with this type of contamination.

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

Let me tell you what I'm trying to get at. It would seem to me that if I were to be charged after having taken a test and I actually am—Let's say it's a one-beer defence. I had one beer and I actually tested higher than 0.08, and I was therefore charged. I know I'm not guilty. What are my options? Obviously the device is incorrect. I would call my lawyer immediately, have that device picked up, and have that device tested. I don't see the point. If you're actually right and the test is wrong, then obviously you're going to get the device, have the device proven incorrect, and be found innocent.

[Mark Brayford]

I have defended hundreds and hundreds of alleged drunk drivers over the last quarter century, and I know of no case in which someone has successfully been able to grab a breath testing device or get their hands on it. But more to the point, the Intoxilyzer doesn't use a wet system, if I can call it that.

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

Let me ask you this. I come from a really nice city in Ontario called St. Catharines, and I don't ever recall a night when they were using a device and found fifty people in a row that evening, which would have easily proven that the device wasn't working.

Anyway, I'm going to move on, because there's a whole issue around the device. It would seem to me that if it wasn't working and you were actually being truthful and hadn't had anything to drink that evening, you'd be able to prove the device was not correct.

[Mark Brayford]

There are many times when there are potential problems with devices, and you can appreciate how you can't prove it after the fact.

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

Kirk, you made the comment that we've cut $4.2 million out of police funding. In fact, while we may have certainly, from a budget perspective, rearranged how finances work within different departments, some programs that were actually affected are not affected in terms of how you relate them. Actually, $161 million was set out in 2006, specifically for more RCMP officers to focus on priorities such as drugs, corruption, and border security. Another $16.1 million was provided for community programs to help young people get back to school, rather than having them join a gang and learn how to do drugs or get involved in alcohol. Likewise, in this year's Budget 2007, $64 million was spent on a new anti-drug strategy for across the country. So I just want to make sure you're clear that we have a pretty clear focus on where we want—

[Kirk Tousaw]

I'm well aware of this government's concern with the issue of drugs and its attempts to combat them, but my numbers came from the legislative summary.

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

Just so you're clear on it, this government is investing a lot of money in terms of fighting drug use in this country.

I got the impression from you—and perhaps you can correct this—that there is absolutely no relationship between drugs in one's system and impairment. Is that true?

[Kirk Tousaw]

There is no scientific way to make a causal link between the presence of, for instance, marijuana or other drugs in one's system and the issue of impairment.

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

So you think that no matter how much of a drug you use, you can still drive and not be considered impaired.

[Kirk Tousaw]

No, that's a totally different question. You asked me about linkages, causal linkages, and scientific testing.

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

I'm sure Mr. Solomon will comment on that.

[Kirk Tousaw]

You certainly can take drugs and be impaired by those drugs. The problem is that drug testing only tells you if you have the drugs in your system. It doesn't tell you if you're impaired. If you smoked marijuana yesterday, you will test positive for the presence of marijuana in your system today. It won't have anything to do with impairment.

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

You won't be pulled over if you're not impaired. At least where I come from, you don't get pulled over and tested unless the police officer has a notice of impairment. It isn't just to pull someone over to test them to see if they actually have drugs in their system.