Justice Committee on June 14th, 2007

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Mr. Petit.

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

Mr. Graham, my question is for you and perhaps Ms. Scott as well.

Earlier we talked about the costs that you perhaps had not evaluated.

With regard to blood alcohol levels, you know as well as I do that, when the qualified technician is at the police station, he completes a form. He prepares two columns. He enters the blood alcohol level and all the steps he has taken to show that the breathalyzer is accurate and may be filed in evidence in court.

At first, we lawyers saw a problem in this, that is to say that we brought in the qualified technician to testify. But we subsequently realized that that cost the government a lot of money and immobilized all, or nearly all the police stations. There are places where there were perhaps 20 blood alcohol cases, but it wasn't necessarily the same police department that was involved. Subpoenas were issued in order to question the qualified technicians, and that paralyzed the entire police system. It started to cost a lot of money, and I'm not kidding.

The problem was solved when permission was given to file the qualified technician's certificate. So we received the evidence beforehand, and, if we didn't agree, we informed the court or the Crown prosecutor that we intended to challenge the certificate. In that case, the technician came to court to explain that everything had gone well.

Will all the steps the DREs take be compiled in a kind of log that we can file in court? Don't forget that there are 12 steps. Imagine, 12 steps! As a lawyer, I can subpoena you on each of the 12 steps to say that it wasn't properly conducted, that you made errors and so on.

Did you examine that? You said you had had an experience like that in British Columbia. Will the technicians, the DREs be called as witnesses more often? Will they be able to file a report that will be accepted by the court? It should not be forgotten that this is a matter of evidence. If everything is well done, if we can't have the evidence accepted, it won't work.

In your experience in British Columbia, did you look into that?

[Cpl Evan Graham]

Yes, the evaluation report that the DRE completes is standardized right across the country. Every step of the evaluation is documented on a phase sheet, right down to the sobriety test, where the scoring is done right there. That document is included with a disclosure package.

Currently the DRE is going to court, just the same as they would if you were charging somebody for alcohol-impaired driving without a breath test, because really that's what we're talking about—just straight impaired driving.

I would expect that as the program evolves and becomes more accepted by the courts in Canada, the phase sheet will probably suffice without having to call the DRE in, unless there are circumstances that would warrant their being called. That is the case in many U.S. jurisdictions, including California and Arizona, where they have very large numbers of DREs.

But initially, for the first year or two, we're going to have the DREs in court a lot just because they have to educate the court as to the process.

[Marthe Dalpé-Scott]

I'd like to give the laboratories' point of view, Mr. Petit. We can take the example of the services of our DNA labs. When this started, everyone went to court. Twenty-two employees received subpoenas to testify in court. Obviously, our labs were empty. However, after that experience of several years, the courts made sure that the scientific reports were standardized. We're part of a system of labs accredited in accordance with Canadian standards.

We told DRE system police officers that we would probably be called as witnesses as well. In our case, our staff is already prepared. We frequently testify in all impaired driving investigations of all kinds and in other criminal investigations. At first, our task will be to assure the courts that the process is standardized and that the reports are standard across the country and available in both official languages without any difficulty.

I amthe manager of the RCMP's toxicological services program, and I can assure you that that's being done.

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

You reassure me about costs. The first breathalyzer tests conducted by qualified technicians cost the government a fortune, at least in Quebec. They paraded these technicians into court, which lost a lot of money, but that was part of my former life.

Mr. Graham, you raised a point that intrigues me and that I want to clarify. In Quebec, under section 125 of the Highway Code, if an individual runs a red light, we have the right to arrest him, then proceed with the test. A person may refuse to submit to it. In the case of the breathalyzer test, we know roughly at what point we can control a refusal. If the police officer orders the person to submit to it and that person refuses, he will be charged under another section of the Criminal Code, with refusing to submit to a blood alcohol test.

You described the 12 steps of the DRE program in detail, and I find that fantastic because I understood absolutely none of it, even as a lawyer. Now I understand the process very well and I find it excellent. However, in the case of refusals, at the very start of your document, as in the case of blood alcohol levels, a person arrives at the police station and has another opportunity to refuse because, very often, the police officer has warned him, but he may refuse again. In the course of operations, let's say that you have already done three and nine remain to be done. Is there another possibility of a refusal? At one point, the citizen could decide to stop there. Would you have a right to summon him? In your opinion, is there a possibility that the accused can refuse within the unfolding of the 12 steps?

I know it's possible at the outset. We draw an analogy with blood alcohol levels, but does this possibility exist in the case of the DRE? As you said, the accused winds up in a dark room so that it can be checked whether his pupils are dilated. They want to conduct all sorts of tests. If the accused refuses to be touched, at that point, do you have the opportunity to file an application and tell him that, if he refuses, you will prosecute him for something else, that is to say for his refusal? If there is a refusal at step 6, you can never get to court with that. Do you think the text of the act provides for this possibility?

[Cpl Evan Graham]

It is. Again, it's the same as for alcohol-impaired. The person may provide a breath sample with alcohol and then after the first sample say they're not going to do another one, at which point they'd be charged with refusal. With the drug evaluation, at any point that the subject decides they no longer want to participate, we would terminate and explain that the penalties for refusing are the same as for carrying through. But if they don't want to do it, that's fine; they'd be charged with refusing.

[The Chair, Conservative, Art Hanger]

Thank you.

[Cpl Evan Graham]

Again, the parallel between the two, alcohol and drug impairment, is that investigations will be almost identical.

[The Chair, Conservative, Art Hanger]

Thank you, Corporal Graham.

Thank you, Mr. Petit.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I have a request and a question. I don't know whether the government still intends to call a vote on the bill next week, but would it be possible, in the next few days, for our research service to have us read what the Supreme Court has said about alcohol and drugs? Without appending all the judgments, they could prepare a brief summary of the judgments by the Supreme Court and other appeal courts. That kind of document would be useful.

I have a question for Mr. Graham or Ms. Dalpé-Scott. There will be a training process, and there will be available budgets—we hope so, and I am sure you hope so even more intensely than I do. How is the territorial availability of the drug recognition experts established? Are there any in Quebec, or are there any in the Royal Canadian Mounted Police? This second step is more complex.

You've referred to 30 minutes. I understand that this may be a little longer for persons who are a little older or have reduced mobility. However, to what extent will staff be present to administer these DRE tests?

[Cpl Evan Graham]

The DREs trained in Canada are not just RCMP. Our current funding is through Canada's drug strategy. When we began, Treasury Board actually was looking at just training the RCMP, but we took the stance that it's a policing problem, not just an RCMP problem, so the courses have been opened up to police officers from all provinces and all agencies.

We currently have actually more non-RCMP DREs than we do those who are in the RCMP, despite the fact that the money is actually being allocated to the RCMP. We're spending it for all police agencies.

Quebec, as I said on May 30, currently has one DRE, and that's because the people who have taken the training haven't followed through. And currently the provincial government has taken the stance that until the legislation is in place, the police agencies are not to participate in this program.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you. That reassures me. So it would be possible to increase staff in Quebec.

Note that this isn't the aspect that concerns me the most, but one of the controversial aspects of this bill is the “two-beer defence”. We have heard submissions on the subject, because we are removing a ground of defence.

What can you tell us about the reliability of these tests? The fact that they are standardized and that written documents can be filed in court is one thing. How do you assess their reliability in one case as in another?

[Marthe Dalpé-Scott]

You're talking about the tests—

[Réal Ménard, Bloc, Hochelaga, QC]

I'm talking about the sobriety and DRE tests.

[Marthe Dalpé-Scott]

That's obviously related once again to what Corporal Graham said in his testimony. It's already based on a very well tested system and on a number of court experiences in the United States. If, on the police side, these tests are well established and everything is well done, I can assure you that, on the laboratory side, it's not a problem either, since they're already conducting analyses in the case, for example, of victims—

[Réal Ménard, Bloc, Hochelaga, QC]

The standardized sobriety tests don't go to the lab. Is that correct?

[Marthe Dalpé-Scott]

No, they don't go to the lab.

[Réal Ménard, Bloc, Hochelaga, QC]

The police officer's acuity at mastery and the efficacy of the neurological tests—as they say in medicine—all that means that detecting these indicators is really centred on the human character of the assessment of the test. That's what troubles me. I'm not questioning the police officers' competence. This morning we heard testimony to the effect that a number of lawyers were capable of being very procedural in a former life, still at $250 an hour, corporate rate, Mr. Petit.

That said, I'm not questioning the police officers' competence, but this disturbs me to the extent that we are taking a defence away from citizens. We are relying to a great extent on the fallible or human character of the first test, but not for the second, I understand. That's what troubles me.

[Cpl Evan Graham]

Each one of the tests in the standardized field sobriety test—the three-test battery—has specific validated clues. So it's not a matter of my saying, I want you to do this test and I'm going to use my criteria. The criteria are set out. For example, a walk and turn test has eight validated clues. If you show two or more, then the validation studies have shown that the probability of your blood alcohol concentration being over 80 milligrams is 72%. Then there's the other 28%; but based on the fact that we're talking about suspicion to reasonable grounds, we would go to the breath demand.

[Réal Ménard, Bloc, Hochelaga, QC]

You made an interesting extra-judicial admission. You referred to 72% of cases. So the test could be fallible in 28% of cases.

[Cpl Evan Graham]

True.

However, that's just to get you to an evidentiary instrument, and that evidentiary instrument will either confirm or disprove the fact that a person is actually over 80 milligrams percent. We're not looking at 100%, because that's impossible. The sobriety tests are just there to get you suspicious to read a breath demand. You would not be able to charge somebody based strictly on the sobriety test, because there's not enough evidence there—unless you've charted the person. Then you have something else.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

As a final comment, I just want your opinion, going back to the situation I was talking about.

In the case of an accident and a fatality, I heard you say that the coroner's report would be thorough in regards to reporting the possibility of drugs or any foreign substances in the deceased.

Should that not be a mandatory requirement of the other individual, if they survive? Should it not just be automatic that if there's a fatality or a major crash, all drivers would immediately be required to go for testing, without any idea from the policeman on the site determining if there is a reason, or whatever? Just do it.

[Cpl Evan Graham]

There are jurisdictions with legislation similar to that. It's an implied consent law, that by virtue of holding a driver's licence for, say, the province of Ontario, I have consented to providing a sample, whether it's blood, urine, breath or oral fluid.

But we don't have that in Canada. In an ideal world, it would be very nice to have, but—

[Myron Thompson, Conservative, Wild Rose, AB]

Why can't Canada be part of an ideal world? Let's do it.