Mr. Bagnell.
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.
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.
9:45 a.m.
Liberal
9:45 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
The concern has been raised with us by the provinces that you may have a police officer attending at the hospital who smells the alcohol 20, 30, or 40 minutes later. He now has the reasonable grounds to suspect that there's alcohol in the body, but at that time he may not be able to establish that the person had the alcohol while driving. That may have to be established. He knows he drove, but they're going to have to establish at trial that the guy didn't drink alcohol between the time of the accident and the time he got to the hospital.
We're trying to break those two suspicions up. As long as he can establish both of them, he can go to the ASD. By the time they get to trial, they're going to have to be able to prove that he was driving. If he was put in an ambulance and taken to the hospital, the chances that he had access to alcohol are pretty nearly nil, but there may be other circumstances where it would be a difficulty.
9:45 a.m.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Thank you.
I'm not finding that we're hitting the nail on the head here in describing why we need this amendment. As I read the original provision, before it's amended here, it simply says that the person is suspected of driving while they had drugs or alcohol within the previous three hours. The amendment separates the two. First of all, at the time of the arrest or the encounter, the person had drugs or alcohol in the blood, and then within the previous three hours they drove, not necessarily having drugs or alcohol in the blood. You might have driven two and a half hours ago, and you might have taken the drug or the alcohol an hour ago, but the person would still be liable to at least the testing procedure here. This is a testing procedure; this is not an offence section.
Correct me if I'm wrong, but we have a scenario where a citizen legally drinks or legally consumes a drug, or even illegally consumes a drug. Sorry, let me reverse it. A person legally drives unimpaired and then consumes alcohol or a drug. They are, by virtue of this amendment now, subject to the testing procedure even though in terms of their driving they really haven't done anything wrong. Is that the intent here?
9:50 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
The intent is certainly to separate the two suspicions. This is of course in the context of an investigation for impaired driving. I have some difficulty contemplating a situation in which there has been no strange driving or anything. The police show up at your doorstep two and a half hours later, smell alcohol, and ask you to do an approved screening device, and then they'll try to get you into a car.
In the real world, there will be an accident. There will have been some form of driving that has drawn the attention of the police, and then they will find reason to suspect alcohol or drugs in the body. That's what we're trying to do. We're trying to make sure those two suspicions are there.
You are correct. In the strict reading of the new provision, I guess, the scenario that you have put out is a theoretical possibility.
9:50 a.m.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Mr. Chairman, I can understand our desire to purge the streets of drug- and alcohol-impaired drivers, but it's not clear to me why, on a public policy basis, we would implicate a citizen in a Criminal Code testing procedure when he or she, in my fact scenario, hasn't done anything wrong in relation to drinking or driving. He or she may not have even seen a motor vehicle in the previous two and a half hours. Yet a policeman might wish to do the testing, believing that the person had driven to the bar.... The person had driven to the bar, left the bar, taken a taxi home, and not broken any laws, but because the person was drunk as a skunk and the policeman knew that he or she had driven to the bar, the policeman could still subject the citizen to the test. And add in some drugs and you have yourself an issue.
I don't know what kind of charge the policeman would lay, because in my fact scenario there is no evidence of driving impaired by a drug or alcohol. The citizen would still be subjected to a test--and rigorous testing, two-stage testing, I think.
9:50 a.m.
Conservative
The Chair Conservative Art Hanger
Mr. Pruden, did you want to respond? I'm having a hard time following Mr. Lee.
9:50 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
Mr. Chair, this proposed subsection leads to the necessity of having both suspicions fulfilled. The officer must suspect the substance in the body, and the officer must also suspect the operation of the vehicle within the preceding three hours. So a case would not arise where the officer is saying, “Simply because I suspect you have alcohol, I'm going to ask you to provide the tests.”
9:55 a.m.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I'm going to just accept the departmental explanation that it doesn't do a whole lot of bad things. It's on the public record, and I'll stand down.
Thank you, Mr. Chairman.
9:55 a.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
With reference to your amendment as it presently stands, let me give you the following example. At 9:00 p.m., the police are advised of a hit-and-run offence involving two vehicles. The accused is suspected in this case. The police find the accused's vehicle parked near a hotel bar. The accused already has one or two glasses of cognac or some other liquor in front of him. He is obviously drunk and he is drinking.
The police officer is suspicious. He actually believes that the vehicle is the one he is looking for. This has to do with the first criterion. Regarding the second criterion, the police officer thinks that it is the accused. In fact, he finds him drinking in the bar. According to your amendment, could he submit this individual to a breathalyzer test? Have I missed something?
9:55 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
He could compel the individual to take the test. However, before requiring him to take the breathalyzer test, he must have reasonable grounds to believe that the individual has committed an offence during the past three hours. He is facing an individual who has obviously been consuming alcohol. He might suspect that the individual is doing this to hide the fact that he had already been drinking.
In any case, if the police officer already has a witness who says that he saw the individual in an obvious state of drunkenness, the police officer could require the individual to undergo a breathalyzer test. This is in our draft. The problem is that if, two and a half hours later, the individual is no longer drunk at the wheel, it is difficult to charge him with a criminal offence.
9:55 a.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Let me take this further. Imagine a hit-and-run offence. There is no doubt that a witness saw the accused. As he approached the accused, he smelled alcohol on his breath. Two hours later, the individual is found drinking in a bar. What would be the use of the test in such a case? What is the objective of this amendment?
9:55 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
It would hardly be effective at all in a case like the one you described. However, things would be very different if the individual responsible for the hit-and-run offence and the accident were taken to hospital.
If, one hour later, there are reasonable grounds to believe that the individual has been driving under the influence of alcohol during the past three hours, a breathalyzer test would be in order. This information could come from the police officer in charge of investigating the accident, given the fact that a witness has declared that this individual was driving. If both conditions exist, the individual can be required to undergo a breathalyzer test.
9:55 a.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Why are you saying that? Under section 254, if the accused is in hospital, a sample of his blood can be taken. We can go even further.
9:55 a.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
It may be section 256; I'm not going to argue about that. The fact remains that a section in the Criminal Code sets out measures regarding individuals who have been hospitalized.
I don't understand this amendment. Could you explain it to me?
10 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
It says that there must be reasonable grounds to believe that, in the preceding four-hour period, the person committed an offence set out in section 253. We are still dealing with this section.
10 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
We are still trying to establish whether there are reasonable grounds to believe that the individual committed such an offence. We want such individuals to have to take a breathalyzer. If they fail, we can use a breath test. We are looking for reasonable grounds to proceed to the second step.
Section 256 concerns situations where reasonable grounds already exist. It applies now. In some situations, the lack of reasonable suspicion constitutes a lack of reasonable grounds. That is why we have roadside screening tests.
June 19th, 2007 / 10 a.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
This is a really brief question. Just looking at section 256, where the medical doctor's opinion is warranted to take the blood sample, I see it says four hours. This is three hours. I'm just curious about why there's a difference.
