Justice Committee on June 19th, 2007

[Greg Yost]

Mr. Chairman, in some situations, we can identify a mistake, for example, the device's temperature was supposed to be 34°C, but it was 39.9°C.

When we ask the toxicologist what effect this might have the result and he or she says more or less 2%, if the result indicated 160 mg, this isn't very helpful. However, as the bill is currently written, we need only demonstrate two things. First, it is a mistake and, second, we can talk about consumption.

Our worst fear is that a minor error will be identified and someone will say, since this minor error was found, we could ignore it and use the two-beer defence for the five beers I drank with my friends over a two-hour period. This is what happens with the bill as it is currently written. We want to amend this to specifically state that it must be an error—

[Réal Ménard, Bloc, Hochelaga, QC]

For example, when you talk about error, is it a mistake concerning body temperature? Are you talking about these kinds of errors?

[Greg Yost]

As I said, 34°C, is the instrument's temperature, not the body temperature. To be sure that the instrument is operating correctly, it should be at 34°C just before the test is done. However, at 39.9°C, it's close enough to give you the percentage.

[Réal Ménard, Bloc, Hochelaga, QC]

So, it could be the breathalyzer—

[Greg Yost]

It could be the breathalyzer, yes.

[Réal Ménard, Bloc, Hochelaga, QC]

—and it could be drug recognition expert tests. Or is it only breathalyzers?

[Greg Yost]

We are talking here about the certificate and alcohol level, so not drug recognition expert tests. We are only talking about—

[Réal Ménard, Bloc, Hochelaga, QC]

—breathalyzers.

[Greg Yost]

—breathalyzers, yes.

[Réal Ménard, Bloc, Hochelaga, QC]

So, it's not because there was a problem with the breathalyzer that the two-beer defence will be allowed.

[Greg Yost]

If such a change is proven, it would have to have sufficiently skewed the results so that the individual is at less than 80 mg, and not just be a minor change which would mean that the individual is still at 80 mg.

[Réal Ménard, Bloc, Hochelaga, QC]

I think that Mr. Moore would like to add something. I would like him to tell me which witness asked us for this amendment. I forgot the name of the witness who suggested this amendment to you. Unless this comes directly from the office of our wonderful Minister of Justice.

[Rob Moore, Conservative, Fundy Royal, NB]

On what you asked, Mr. Ménard, about the effect of this, it's not designed to make the bill any tougher. It's designed to take away the absurdity that would be in place--we would throw out an entire well-established body of evidence based on some trivial amount. The intent there is that if it can be shown that there was an error in the accuracy of the device that would result in a reading that would put a person below the legal limit, then by all means, that evidence can be thrown out. But we don't want to see an entire case lost on a very trivial matter on this issue.

[Greg Yost]

If I may, Mr. Chairman, I would like to add something.

[The Chair, Conservative, Art Hanger]

Mr. Yost.

[Greg Yost]

I must tell you that it was the provincial prosecutors, who obviously studied in detail what we are proposing, who drew our attention to this flaw in the legislation. It was not defence lawyers who came to tell us.

[Réal Ménard, Bloc, Hochelaga, QC]

I think that we all had understood that.

[Greg Yost]

Obviously this comes from the Department of Justice, upon consultation with the provinces regarding the current wording.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Yost.

We'll go to Mr. Pruden.

[Hal Pruden]

To add to Mr. Yost's response, there was a case, I believe it was in the early 1990s, when St. Pierre went to the Supreme Court of Canada. It was a situation where the person said that the reading was different. It actually still would have been over 80, but it would have been different from what the instrument showed. And in that case, the court said, yes, you have a defence. Subsequently, Parliament amended the legislation so we would take into account that the difference must also show that the person is below 80 milligrams of alcohol.

So this is tracking, in a similar way, trying to avoid that problem.

[The Chair, Conservative, Art Hanger]

Go ahead, Madam Jennings.

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

You're probably aware that I have a motion to amend, LIB-8, which is still there, which also deals with clause 8 of Bill C-32.

My question on LIB-8 is whether LIB-8 would come into contradiction should the government amendment G-4 carry. Would that create a contradiction?

[Greg Yost]

I believe there could be a minor conflict. In terms of “calibrated correctly”, those are all those tests. If you had a 33.9 instead of 34 for internal temperature, unless the certificate said it was done correctly, except for this little detail....

And I'm not absolutely certain about the last part of your amendment: “maintained according to the manufacturer's guidelines”. I believe we follow the recommendations of the alcohol test committee as to what should be done for our machines and their maintenance and so on, not the manufacturer's guidelines.

[The Chair, Conservative, Art Hanger]

Madam Jennings.

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

While we're not at my Liberal motion, I need this information in order to determine whether or not I proceed. There is a major criminal trial going on, as we speak, in Quebec. While impaired driving trials, I've been told by criminal experts, normally take a couple of days at the most, this trial has actually been scheduled for 25 days.

The principal issue at hand is the fact that notwithstanding the guidelines about the maintenance of the breathalyzer machines in the police stations, notwithstanding the manufacturer's recommendations as to how to go about maintaining the machines, how to go about ensuring that they're properly calibrated, etc., with the particular police force in question, the defence is attempting to show that in fact the police force does not follow the manufacturer's guidelines in terms of the maintenance and does not follow the guidelines that are established by the committee, that you're talking about.

That's why the defence lawyers are so concerned about the issue of the two-beer defence being removed.

So my concern is that should amendment G-4 carry and my motion not carry, would that mean then that the burden would be on the defence to show that the machine had not been properly maintained according to the guidelines set out by the manufacturer? Or would the burden be on the Crown--because that's the objective of my motion--in the same way as the burden is on the Crown to show that the technician was properly qualified, that the analyst provides a certificate, etc.?