Justice Committee on June 19th, 2007

[Hal Pruden]

Clause 3, which we are looking at, is dealing with the screening level. At the screening level for alcohol, one typically has the approved screening device at the roadside. With drugs it would be three tests at the roadside for sobriety testing.

What section 256 deals with is the next level up, which is the actual blood sampling in certain cases, narrow cases usually. Or in the case of breath testing, it would be the approved instrument, which is typically administered back at the station. When it's an approved instrument it can be used in court to prove the blood alcohol concentration.

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

So in short, the hours--that's the difference between roadside and another place.

[Hal Pruden]

And because of the hospital testing in proposed section 256. It was felt when that amendment was made—I believe it was 1999, after the committee had reviewed all the impaired driving provisions—that the four hours was used for blood sampling. Typically there would be an accident involved, and they wanted to ensure that the police could still make the demand in the time period.

Here what is being suggested is that with the screening level demand, the police should be able to look back three hours to the person's driving.

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

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I have a bit of a problem with this amendment. It seems to me that you can already do what you want and that this would only add options for abuse.

My understanding of the way you have drafted Bill C-32--and I'm not sure why you'd bring an amendment later--is that if the police suspect a person has been impaired driving, they can run them through the tests. The amendment says they just have to suspect that they have had alcohol and that they drove a car. There's a good likelihood in modern society that anyone has driven a car within the last three hours. He doesn't have to suspect he was driving the car while impaired, which was your original draft; he just has to suspect he was driving, which could force almost anyone into these tests once they've had alcohol. That doesn't seem to make sense. It seems to me that could be open for abuse. The way you have it written in the first bill, the police officer can subject a person to the test if they think they were impaired driving.

As well, I'm not sure why you added this after you drafted the bill.

[The Chair, Conservative, Art Hanger]

Mr. Pruden.

[Hal Pruden]

Under both versions, the original Bill C-32 and the amendment, the officer must suspect alcohol in the body. The officer, at this screening level, does not have to have reasonable belief that there was impairment. It's strictly on a suspicion of presence of alcohol. It's an extremely low threshold already.

As Bill C-32 was first drafted, it says the officer had to have the suspicion...while the person was operating the motor vehicle. The amendment will give them more time. They will be able to look back in time if the person has been taken off to hospital. That's what this is meant to accomplish.

Under the existing Criminal Code, if they've gone off to a hospital and the officer doesn't have the reasonable and probable grounds to believe they've committed the offence, they can't use that lower threshold to get a screening-level demand. That is what this is attempting to accomplish.

[The Chair, Conservative, Art Hanger]

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Whether a person is in the hospital--I'm not sure how you can screen someone who's in the hospital--or wherever they are, the way it's written under proposed subsection (2) suggests that if the peace officer thought they had alcohol in the preceding three hours and they were operating a motor vehicle, then they could force the screening. I don't understand why you couldn't already do that.

[The Chair, Conservative, Art Hanger]

Mr. Pruden.

[Hal Pruden]

As it's currently drafted in Bill C-32, the belief is that at the time they were driving they had alcohol in the body, whereas in the amendment, the officer suspects that they now have alcohol in the body and also must have the suspicion that they were driving within the previous three hours. It's different.

[Larry Bagnell, Liberal, Yukon, YT]

Yes. It adds time. It adds to the possibility that they were driving without any substance in their body. Why would you run them through a test for that? You can do the test right now if you think they have alcohol in their body and they were driving. Why would you do an amendment that allows you to put people who are driving through a test but who don't have any substance in their body? That's all you're adding. The way it's written, you can already test them if they have a substance in their body.

[The Chair, Conservative, Art Hanger]

Mr. Pruden.

[Hal Pruden]

That's only if the officer has a suspicion that they had that alcohol while they were driving. If the person is at the hospital, the officer may come to that through their later investigation, but they want to be able to do the screening-device test, for example, based on the fact that the person now has the alcohol or drug in the body and the officer also has a suspicion that they were driving.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Yost.

[The Chair, Conservative, Art Hanger]

Madam Jennings.

Oh, I'm sorry, Mr. Yost. Did you have something you wanted to add?

[Greg Yost]

I was going to suggest there's another possible scenario. You have the car in the ditch or the accident or whatever, and the person is okay; he's out of his vehicle. The police arrive half an hour later, and he's drinking a beer. This may be because he's trying to avoid any suggestion that...he's going to screw up the evidence, but he's drinking a beer.

So now you have the alcohol, and within the last three hours he's been driving. The screening device would then provide.... If he fails it really badly, you take it to the proper test, the approved instrument test. The guy's now blowing 0.18; he's in the reverse two-beer defence. He's taken one beer, it'll never have gotten him to 0.18, so you could extrapolate. The police officer arriving at the scene would not at that moment have been able to make the immediate connection between the two. He might be able to do it a little bit later.

I admit, though, that we were thinking the hospital scenario and we're making these up as we go along.

[The Chair, Conservative, Art Hanger]

Madam Jennings.

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

Some of my colleagues mentioned the fact that section 256 already exists, so why is this particular provision or amendment being proposed by the government? I've just taken cognizance of section 256. Section 256, if I'm not mistaken, is to obtain a warrant to obtain blood samples where there are reasonable grounds to believe the person has, within the preceding four hours, committed an offence under section 253 and the person was involved in an accident resulting in the death of another person or in bodily harm to himself or herself or to any other person.

So section 256 would not apply in any case where we're talking about an infraction--if it's the highway safety code, for instance, the example that Mr. Yost just gave. The car's in the ditch. The car may be scrapped. The driver is unharmed. No one else was involved in the accident. The police officer shows up, smells alcohol on the breath, and the guy or woman has a beer in their hand. Section 256 doesn't apply. Section 256 only applies if there's been death or bodily harm.

So if the driver or the passengers or the other driver, if there's another car involved.... If nobody's injured, you can't get a warrant for a blood sample. Am I correct?

[Greg Yost]

You are correct, but the person here would be capable of providing a sample on a breathalyzer.

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

Yes, I know. I understand that.

[Greg Yost]

The warrant only applies, yes--

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

The only reason I raise this is that in the whole discussion about the government's amendment in Bill C-32 and now the amendment 2 they're proposing, people were talking about section 256 as being the remedy and an argument for not supporting the government's amendment to clause 3. I'm pointing out that section 256 is not an argument for not supporting the government's amendment of clause 3.

That's all. Thank you.

[The Chair, Conservative, Art Hanger]

Mr. Bagnell.