Evidence of meeting #78 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
10:50 a.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
I felt this way before, but upon hearing more testimony.... In trials you have testimony from psychiatrist and psychologists, and we don't demand that it be videotaped. We're not psychologists, and in the same way as a psychologist might make an evaluation based on something someone said, it might not resonate with someone who is listening to it themselves in a courtroom. That's because we're not psychologists or psychiatrists, and in the same way, we're not drug recognition experts. Drug recognition experts, due to their training, might pick up something on videotape that others might not see and say, “I don't see that their pupils are dilated.”
On the practical side and the policy side, I think we had it right in the first instance. This would open up a whole quagmire that would overtake some of these trials and turn the focus away from the testimony of the drug recognition experts and onto the videotape, the quality of the videotape, and the angle of the videotape.
I don't know if there are any other questions, but I think we should move on.
10:50 a.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Moore. It does sound like it's an issue of being practical.
Mr. Ménard.
10:50 a.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
Mr. Chairman, I will be very gentle with the witness, and I hope that he will have enough money for his retirement. I have been following the news, and things don't look good. But that is not what I want to talk to you about.
Do you agree with us regarding the principle of the quality of evidence? According to Ms. Jennings, the purpose of the amendment is to facilitate the administration of the evidence. The second witness told us that evidence has more weight when it is supported by a video, before the courts.
Does your hesitation lie in the fact that this technology is not mobile enough to record the entire process or is it rather that you don't agree with the principle? If you can convince us that this principle is not desirable, that's one thing, but if the technology is not sufficiently adapted to the process, that is another thing altogether. If police stations don't have this technology, this doesn't mean that they won't have it in a year. The committee must determine whether, in principle, videos are desirable. Do you believe that the evidence should be supported by a video, as Ms. Jennings is proposing?
Could Ms. Jennings tell me whether this is a requirement? Must this be filmed in all circumstances in order for this to be admissible as evidence? If this becomes mandatory, we will obviously have to think about it. In principle, does Ms. Jennings' amendment facilitate the administration of the evidence? Ms. Jennings is a fair person in all circumstances.
10:55 a.m.
Conservative
The Chair Conservative Art Hanger
Order, please, Madam Jennings. You don't have the floor right at the moment.
Monsieur Ménard, you're finished?
Corporal Graham, you have the floor.
10:55 a.m.
Cpl Evan Graham
Ideally, being able to capture the whole evaluation on video would be the way to go. As for the technology being there, I can't say it's not there. All you have to do is go to a movie theatre and you see what technology can do. But we certainly don't have those kinds of resources. Multiple cameras would be required, and you would have to have the manpower to operate them.
So realistically, it's not something that's feasible for police stations.
10:55 a.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Thank you.
I disagree with you about hockey, by the way. It has improved the game and the calls.
So this is a tool, I think, that could be used for greater certainty, and that's why it's already in the first part of the scheme, which includes the physical coordination test. It says “may”.
The question I have—and it's for anyone here—is, if that's in the bill, does it imply that the police forces do not have the right to take those video recordings at any phase unless they're in an enactment? Whether that's true or not, I'd like to know.
Secondly, if you have the right to video the roadside coordination test and the interrogation for other offences in the police stations in any event, why would they be mentioned in the bill at all? I guess where I'm going is, if proposed subsection 254(2.1) is in there for the coordination test at the roadside, and it's permissive—it says “may”—and we could amend perhaps Ms. Jennings' amendment to say “may,” they could both go in. It wouldn't do any harm. It would be an added tool if there were means. Alternatively, they both should come out if they're already permitted by law.
So are video recordings permitted by law?
10:55 a.m.
Cpl Evan Graham
We use in-car videos for evidentiary purposes currently. It's the same as taping a voice conversation, as long as there's one-party consent. We've been doing that for years. I have 27 years of service, and as soon as we got tape recorders, we used them for videos, because using them was a lot easier than trying to read somebody's handwriting who is trying to catch up. We have used the videos for some things.
So I would say yes, we can do that now. We don't generally use them, because they've proven to be more problematic for dealing with impaired drivers than they're worth.
10:55 a.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
I respect what you're saying. I just say that in proposed subsection 254(2.1) permissive use of a video recording at the roadside coordination test is already mentioned. What would be the harm in making it available as a police tool at the DRE level?
To that end, Mr. Chairman, I propose a subamendment to Madam Jennings' amendment in proposed subsection 254(3.11,) replacing the word “shall” with the word “may”. I believe Ms. Jennings agrees to that.
10:55 a.m.
Liberal
10:55 a.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
It should be friendly; we're friends. She agrees with it.
10:55 a.m.
Conservative
The Chair Conservative Art Hanger
I don't have anyone else on the list in reference to this witness, and I'm going to ask him to leave his position. I think that part of the debate is over.
Would you like to speak to the subamendment, Mr. Bagnell?
10:55 a.m.
Liberal
Larry Bagnell Liberal Yukon, YT
I know most of my colleagues are probably in favour of the subamendment, but I hope they listen carefully to what I have to say.
I'm in favour of the original amendment and strongly against the subamendment, for the following reasons. We're talking about something very serious. We're talking about ruining a person's life. Once they get a criminal conviction, as you know, it would have a devastating effect on a person's life. To say that just because a video wasn't available, that it shouldn't be allowed, the cost of that...it doesn't make any sense. The police suggested that we have the technology. They've been using videos for evidence in the past for many, many years. The fact is, it doesn't have to be perfect, but if it added one scrap of evidence that's going to change an entire person's life, a videotape is not much of a cost.
All the legal experts, the people who have to prosecute and defend this in the courts, who came before our committee said, “We need those videos.” They said these procedures, this law, the DRE are fraught with all sorts of things that are going to tie up the courts. We're already letting murderers go free because the courts are tied up. We're going to tie them up even more.
They suggested this process will do more justice for the victim because they will have the tapes, which will add more evidence. It will make convictions more certain. A lot of people, once they see themselves on video, won't go to the long constitutionally charged court cases.
A witness brought a report that said the DREs fail in 10% to 20% of the cases, which means 10% or 20% of the people charged would be innocent. If there can be more evidence that would reduce some of that by videotape, it would certainly remove a huge danger to society.
All the lawyers who have to deal with this in court said this is very important. I think this is very important for the breathalyzer.
If later in the meeting we approve the amendment that will allow one to take evidence away, so that the only thing you can do is prove the machine is broken, then it's absolutely essential that we videotape that process, because how is someone ever going to prove that? I hope that amendment doesn't get through, but videotaping in that particular case, for at least some minor protection of the person's rights, would be absolutely essential.
When you see these tests on tape...it's going to clear up the courts. There will be a lot fewer challenges and it will give a lot more justice to a process that many of the witnesses said was already a challenging new process that we're trying to support, that we're getting into place. It's going to be challenged a lot in the courts. If we can make it any more certain by this standard technology that's already in place, there will be a lot fewer....
We should fund the police for whatever they need. It's a lot less cost than the millions of dollars we're going to spend in court cases and the untold tragedy in millions that convicting innocent people will cause.
Thank you, Mr. Chair.
11 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair.
I share Mr. Bagnell's concerns in a great many ways. I recognize, except for Corporal Graham's testimony, that practically we have a major problem at this point to go ahead and make the audio-videotaping mandatory.
I just want to make these points. One, I have thought a fair amount about this over the last two weeks, because it's been over that period of time when we began to hear evidence about the additional benefit we would derive within the criminal justice system if we could videotape both the assessments for the purpose of identifying whether a person is impaired by drugs but also with regard to the same impairment because of alcohol.
Mr. Bagnell's point about reducing the cost within the criminal justice system by reducing the number of trials is extremely well taken. I think videotaping would go some distance to doing that. Many of us who have the experience of seeing videotapes, whether in the civil or criminal setting, know how effective they are in trials. I'm not quite sure why judges and juries believe in videotapes more than they do eyewitnesses, but they do, Mr. Chair. That's just the reality.
The other point I want to make, and I suppose I'm making this to the Justice officials, is that practically, at some point, we will be able to effectively videotape at relatively minimal cost, because we're going to keep increasing the use of videotaping in the police stations around the country. At that stage, it seems to me it would behoove the government, whichever one it is at that time, Mr. Chair, to pass regulations requiring videotaping.
Having made those points, I'll be supporting the amendment. Thank you.
11:05 a.m.
Conservative
The Chair Conservative Art Hanger
The question is on the subamendment.
(Subamendment agreed to [See Minutes of Proceedings])
(Amendment agreed to [See Minutes of Proceedings])
11:05 a.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
I move government amendment 3.
The bill currently provides for the use of an approved screening device that is less stringent than an approved instrument, and its results cannot be used in courts to prove blood alcohol concentration. This is in cases dealing with a combination of drugs and alcohol. What this means is that we would be using the more stringent device that is approved for use in the court and the certificate the Crown would be able to file for a BAC would be produced by the approved instrument, not an approved screening device.
