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.
11:50 a.m.
Conservative
The Chair Conservative Art Hanger
I think we're going into a whole new round of debate here.
Mr. Comartin.
11:50 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I have a question for Mr. Yost.
Does the existing certificate make reference to the committee, the guidelines, or the procedures?
11:50 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
No, it does not. It makes reference to the determination that it was in proper working order. The alcohol standard is the test. We use the alcohol standard to make sure it worked.
11:50 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
The alcohol standard is a liquid--I believe it's 10% alcohol--that when heated within the machine should give you a reading of 100. If it doesn't give you that reading, there's something wrong and the tests will not be valid.
11:50 a.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I'm sorry. I'm asking who originally determined the alcohol standard?
11:50 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
It's actually the Department of Health that takes care of determining the standard solutions, which are used in various ways. So those are certified, as I understand it, by the federal Department of Health.
It's an acceptable standard to use. The manufacturers are all licensed, and all of that sort of stuff. These have numbers on them, so you can check when they were issued and how long they were good for, and all of that kind of stuff.
11:50 a.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Comartin.
I call the question on Mr. Bagnell's subamendment to L-8.
11:50 a.m.
Liberal
Larry Bagnell Liberal Yukon, YT
It reads: “or any more stringent guidelines subsequently established”.
(Subamendment negatived)
(Amendment negatived [See Minutes of Proceedings])
11:55 a.m.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Before you call the whole clause, I have one question—and I know we are trying to get this done fairly expeditiously.
Subclause 6(6) purports to remove what is called the two-beer defence. I just have one question. Will the removal of this subject of a defence impair the ability of an individual to defend his or her charge if they have been framed in some way? I realize that the two-beer defence is aimed only at the two-beer scenario, but let's say a citizen has been framed, either with respect to their identity or with respect to somebody slipping alcohol—vodka, or something—into something they have consumed, with the advertent purpose of framing the individual, with or without the police being co-opted? I do not know; it's only a hypothetical case I'm offering. Will this provision impair the ability of that citizen to defend himself or herself properly? Will it impair their ability to mount a full and fair defence?
11:55 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
I think the easy and quick answer is no. That particular defence will still exist, because the crown prosecutor must show there was a voluntary consumption of alcohol. If they, as the defence, bring in evidence that vodka was slipped into some drink they had and that they were unaware of it, and that's what caused the impairment, they can still bring that evidence forward, because it goes to whether or not they voluntarily consumed the alcohol—or the drug, for that matter.
11:55 a.m.
Conservative
11:55 a.m.
Liberal
Larry Bagnell Liberal Yukon, YT
I'm sorry, I know we're trying to speed up the bill, but I have to speak at length to this clause as a whole, because the witnesses have suggested this is a precedent that's upsetting in the entire justice system.
Kirk Tousaw from the B.C. Civil Liberties Association certainly found it violated the charter, just to have a machine spit out a piece of paper and the person goes to jail or loses their driver's licence or both. These are very serious consequences for someone. Saying they cannot defend themselves...if you were drawing a parallel with other types of crimes, in all other types of crimes a person can say they're not guilty and give a reason. The judge doesn't have to believe them. I understand there's a problem in the way Ontario courts have interpreted this, and that should be fixed. But I don't think it gives us the right to take away the rights of individuals to suggest innocence.
To draw a parallel, if any one of us were in a bar this afternoon and there was a murder--someone was shot--and we were charged with the murder and we had nothing to do with it, it would be like saying we can't claim we had nothing to do with it, which is exactly some of the defence this takes away.
It doesn't occur anywhere else. And it's not me speaking, I'm not a lawyer, but this is what the witnesses said. Mr. Lee brought up the Seaboyer case, which said: “A law which prevents the trier of fact”--this would be a judge or jury--“from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial” in our society. I think this came up in Regina v. Boucher.
Mark Brayford from the Canadian Council of Criminal Defence Lawyers suggested a very small number of people are charged and found guilty. The problem doesn't exist, so why try it?
There's been an assumption throughout these hearings that there's a huge problem here. The evidence is that there is not a large number of people, when you look at the defence of the particular cases. This is Mark Brayford once again: “...saying you cannot testify that you did not have alcohol to drink as a basis for winning the case will violate both section 7 and paragraph 11(d) of the charter”.
One of the reasons I want to get all this on the record is that when this comes up as a charter challenge, I want the judge reviewing the challenge to see what members of the committee were thinking about this particular case.
He also suggested there may be 100,000 cases in this area, and if this goes forward, being unconstitutional, there's going to be chaos in the legal system. He goes on to say, “...to abdicate someone's liberty, if I could put it that way, to an instrument rather than to allow a judge to judge their testimony would be...unfortunate”.
As we've heard in other testimony, the instruments are not state of the art; there are problems with them, they're not infallible. To not allow other defences is just not fair, and it's not the type of fairness we see in the criminal justice system. It's like in the old days, in the Middle Ages, when people said they were innocent and the king said no, they couldn't be innocent, and they were not allowed to present their case.
Mr. Rosenthal from the Criminal Lawyers' Association...and I'm sorry, I've never filibustered before, but I'm going to talk out the meeting, just so, I hope, the NDP and the Bloc can reflect on the seriousness of the precedent we're setting in the justice system. And it's not from me, it's from the lawyers.
Mr. Rosenthal from the Criminal Lawyers Association said, “This is a disturbing and unprecedented provision in criminal law.” We're putting forward an irrebuttable presumption. This proposed amendment will take away from the trier of the fact, whether it's a judge or jury, the ability to determine guilt or innocence. A person goes home and has a drink and the police show up.... You're going to erode the presumption of innocence, which as we all agree--I'm sure everyone in this room agrees--is fundamental to our legal system. You're going to convict a lot more people who are innocent.
In due course someone is going to have to clean up the mess of these wrongful convictions. I can't overestimate the seriousness of a wrongful conviction. They are getting a criminal record. You're ruining a person's life. They won't be able to travel, they will have a hard time getting a job, and it will probably lead to a lot of psychological and health problems—
Noon
Conservative
The Chair Conservative Art Hanger
I'm going to interrupt you now, Mr. Bagnell. The time has expired, unless the committee desires to move through the rest of the bill.
Some do; some do not.
We have Thursday yet to fill up.
Mr. Dykstra.
Noon
Conservative
Rick Dykstra Conservative St. Catharines, ON
I would seek the committee's indulgence that we sit for another half hour, to 12:30.
Noon
An hon. member
No.
Noon
Bloc
Réal Ménard Bloc Hochelaga, QC
Mr. Chairman, we have been here for nine hours, and some of us have other obligations. We still have five clauses left, and there's no guarantee that we will finish this study. I think that you should a call a committee meeting for tomorrow afternoon. We could then finish what we are doing. It doesn't matter whether we finish today or tomorrow. I think that everyone has worked hard. No one has been guilty of filibustering, and we have even supported a number of the government amendments. I think that it is time to take a break.
Noon
Conservative
The Chair Conservative Art Hanger
Tomorrow afternoon has been the suggestion—say, at 12:30.
Mr. Comartin.
Noon
Conservative
The Chair Conservative Art Hanger
Are there any other problems?
We finish at 12 o'clock. Why don't we make it one o'clock, then?