Justice Committee on June 19th, 2007

[Larry Bagnell, Liberal, Yukon, YT]

I'll make one last try, because I think I'm the only one against this amendment.

Let's assume everyone comes home from work at five o'clock. The police come to your house and do a test at six o'clock and you have alcohol in your blood. Under this amendment, they would be allowed to test you, because all they have to suggest is that you're driving--most people drive at that time to get home from work--and that you have alcohol in your blood.

The way it was originally written, you have to also suspect they were driving while impaired. Is that not the case? So this would leave a lot more people open to be tested, because all you have to assume is that they're driving a car, not driving while impaired. Is that not true?

[Greg Yost]

If I may, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

Mr. Yost.

[Greg Yost]

The level in the law, even as it exists today, which we are trying to amend in this bill, however it may come out of this committee, is a suspicion of alcohol in the body; it is not a suspicion of being impaired. It is only to get you to the approved screening device, which, if you fail it, will then provide the reasonable and probable grounds to make the other demand, assuming you can put the person behind the wheel, because you have to have proof, a reasonable suspicion of driving while over 0.08.

[Larry Bagnell, Liberal, Yukon, YT]

You don't need an amendment.

[Greg Yost]

This amendment requires suspicion; it is based on what is already in the law for alcohol. The two changes that are being made in it are extending to three hours and, of course, adding the physical sobriety tests that are necessary for the DRE program. As it is currently written, the police officer would have to have that suspicion that the two things were occurring simultaneously. As proposed in this amendment, the police officer would need to have the suspicion of the driving within the last three hours and suspicion of alcohol in the blood.

I will admit that in the rather strange circumstance of a police officer arriving at your house at 5:30 and asking you if you'd driven, and you saying “Yes, I drove home”, and you've got a glass of wine in your hand that you'd been sipping at, he presumably, under the strictest wording, could do this, but I have difficulty figuring out why.

[The Chair, Conservative, Art Hanger]

Mr. Petit.

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

Mr. Yost, there are two parts to the amendment you are proposing, unlike what we saw previously. It clearly states:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel—

You would be imposing an additional burden on police officers. The individual will have to meet two conditions: that he drank alcohol and drove during the previous three hours. Did the previous version not make life easier for police officers? You seem to be complicating their lives. You are being harsher. Your amendment will make things easier for the defence.

[The Chair, Conservative, Art Hanger]

Mr. Yost.

[Greg Yost]

As it is currently written, the section stipulates that:

(2) If a peace officer has reasonable grounds to suspect that a person has in the preceding three hours had alcohol or a drug in their body while they were operating a motor vehicle or vessel—

The driver must meet two criteria: on the one hand, that he drove in the previous three hours and, on the other, that he drove after having consumed alcohol or a drug. We divided the amendment by saying that the peace officer has grounds to suspect that an individual has consumed alcohol and that, in the previous three hours—I think that the end result is the same. In English, we are taking out the words “while they were operating” and in French, we are replacing the words “alors qu'elle” with “et que”. It comes down to the same thing.

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

Okay.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

I have a point that I'd like to ask either Mr. Pruden or Mr. Yost about. This is a real live scenario. Mr. Lemay likes real live scenarios.

A driver going down the road in mid-afternoon on a Saturday strikes a young boy who's crossing the road outside the crosswalk. He hits this boy, kills him, and throws his body forward. He gets out of the car to go and look at that body and staggers back to his car. There are various witnesses around to say that the man was behind the wheel of that car. And he then takes off; he runs over the boy again and takes off down the street and disappears. The police end up with a licence plate, which they then circulate. They track him down and are able to determine that at his own house he was in fact drinking when they got there.

For this particular section, how would that apply to the police officer who lands at the house of this individual?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

When did the police get there?

[The Chair, Conservative, Art Hanger]

Within a three-hour span.

[Greg Yost]

If I may, Mr. Hanger, obviously the first improvement in this is that we have the three hours instead of having the current law, that it's the person while operating. Under what we now propose, the police officer would have, in my view, a clear reason to believe that the person has alcohol in their body. The officer would also presumably have, on the basis of witnesses, the evidence of the three hours before.

Under what we propose, that would be sufficient for the approved screening device, which may or may not lead eventually to a charge of impaired driving causing death, depending on what comes out of the evidence in trial, as you know, with regard to the staggering out of the car. It would be dubious, under the wording we have in the bill now, that the police officer would be able to say he had reasonable grounds to believe the person had alcohol while they were driving. Unless there was some witness who had smelled the alcohol there at the scene, I don't see how they could do it.

Now, in the scenario you've given, it would be recognized that it would be very difficult to establish impaired driving causing death under any circumstances, just because of the time and the intervening drinking.

[The Chair, Conservative, Art Hanger]

But you could determine through the witnesses that this man was in fact driving, maybe showing some evidence that he might have been drinking, or impaired with something. This provision here now extends it. The time and the screening test will determine whether they could proceed further, whereas the existing legislation does not provide for that.

[Greg Yost]

Yes, Mr. Hanger.

[The Chair, Conservative, Art Hanger]

Thank you.

Are there any more questions on government amendment 2?

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Conservative, Art Hanger]

We'll now move to Liberal amendment 1. That's on page 3 of your accumulated list.

Madam Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Liberal amendment 1 would also amend clause 3, which we just amended with government amendment 2.

This would amend in order to ensure that when the drug recognition expert is carrying out the second phase of evaluation of someone's sobriety, determining whether or not the individual is impaired, in particular by drugs, a video recording of said evaluation would take place. The government in Bill C-32 already states, under subclause 3(3), proposed subsection 254(2.1), that on the road where the standardized roadside sobriety test takes place:

a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).

My amendment would require, at the police station when they're undergoing the second phase of the evaluation, that the evaluation be recorded by video. And given that all or most police stations are already equipped with video equipment for interrogations, etc., it would certainly not be a hardship.

[The Chair, Conservative, Art Hanger]

Thank you, Madam Jennings.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

I think we had heard testimony that this would be, on a cost basis, a practical basis, and an evidentiary basis, a bit of a disaster.

To me, there's a big difference in police stations...and that's what we're talking about. They'd have to physically have the equipment in place at these stations to record this. You'd have to have a technician to conduct the recording. In my view, there's a big difference between an interrogation that's recorded--you can see what's going on, you can see the dialogue, you can hear the conversation--and something like this that's recorded, a scientific test.

The bottom line is that we heard evidence that this would be extremely problematic. I can just see, perhaps during a trial, where it's going to be a video itself that comes into play. We'll have testimony on the video itself--the video is too grainy, someone walked in front of the camera at a certain critical moment, and so on. We heard in testimony that these tests are in a very controlled environment--they're scientific, done by extremely experienced people--and that there would be a huge cost to implementing this.

For those reasons and probably more, the government doesn't support putting this burden on local police departments throughout the country.

[The Chair, Conservative, Art Hanger]

Madam Jennings, do you have a follow-up?

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I certainly do.

First of all, given that on the roadside you do not have the technician with the video equipment to video-record the performance of the physical coordination test, the arguments Mr. Moore is making about a video recording in a police station are not pertinent. First, they would be pertinent for video recording on the roadside. Second, most police stations already have the capacity to do video recording, so it would not be an undue burden.

Out of all the witnesses we heard from, we only heard one witness say that he didn't think a video recording of the drug evaluation at the police station by a drug recognition expert would be useful or that it would add anything. My understanding is that he did not say it would be a negative thing. Second, even if most of the testing is checking the eyes, the blood pressure, and so on, in many cases the individual who has been detained will be speaking. Given that the video recording equipment in the police stations is there for purposes of interrogation, it means they already have the capacity for sound. That's part of the reason they video-record interrogations.

So there would be an added element whereby if there were no video recording of the physical coordination test conducted at the roadside at the point of interception of the vehicle and the driver, you would have that additional element that might in fact further the case of the police officer, and possibly the Crown, should charges be brought. Because you would have the demeanour of the individual who's undergoing the test. In some cases, that individual will have to get up and move for some of the testing. Therefore, you will have filming of the coordination of the individual, the speech of the individual, and the entire demeanour of the individual. It will not take away from the proof; it would actually add to it. In my view, it would actually enhance the ability of both the officers and the Crown to make the case that the individual was impaired.

[The Chair, Conservative, Art Hanger]

Go ahead, Mr. Moore.