Mr. Yost.
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.
11:35 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
In the context of a trial, of course, the Crown bears the burden at all times of proving everything. The certificate is a great assistance to the Crown. Very often, perhaps more often now if this gets through, it saves us from having to call the analyst and go through every step. They provide the certificate. There is full disclosure to the defence of what was done.
In this bill, in another part of it, we are allowing for the printout from the machine, and I obviously don't know what could lead to a 25-day trial over something like that. But if the machine prints out everything that was done and it worked right on blank air--there was no alcohol, it worked right on the test--then you have your test. And again, before the next one, it goes through all of those. We will have a situation where, on the printout by the machine, it is shown that it has worked. It did its own internal testing.
I fully suspect that the defence will attempt to find some way to get around that and look for maintenance records, etc. The new machines, in particular, provide the printout that shows that this machine was working before it took your accused's test, and because we do two of them, it will show that it was working in between, when we tested it again on the standard solution.
If the defence wants to attack it, it can make motions, and if it's unhappy with the disclosure, asking for all these maintenance records and manuals, etc., I presume the Crown will oppose these, saying, “What's the point of it? We know the machine is working because the machine tests itself.”
11:40 a.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Yost.
Madam Jennings, thank you.
The question is on government amendment G-4.
(Amendment agreed to [See Minutes of Proceedings])
11:40 a.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
I move government amendment G-5.
We all recall testimony given on the interval between the tests on the approved instrument. Originally the bill reduced the interval to three minutes. The alcohol test committee recommends retaining the 15 minutes. By deleting clauses 32 to 40 on page 8, that is in fact what we will be doing, retaining the 15-minute interval.
(Amendment agreed to [See Minutes of Proceedings])
11:40 a.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
Yes, I heard a bit about LIB-8 in the earlier discussion on G-4, and Ms. Jennings' rationale for moving it. The government does not support this amendment, because the instrument already automatically produces a certificate and the machines that we have in place now already recalibrate.
Ms. Jennings, I wasn't aware of this case that is supposedly taking 25 days, but we feel this amendment is redundant and that the instruments we have now are already producing the type of material you are seeking.
11:40 a.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
First of all, I find it interesting that before the mover of the motion has a chance to speak to the motion, the floor is given to someone else.
11:40 a.m.
Conservative
The Chair Conservative Art Hanger
He was given the opportunity, Madam Jennings. I was under the impression you had nothing more to say than what was written on the paper. You have the opportunity now.
June 19th, 2007 / 11:40 a.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you.
Given that one of the witnesses here, Mr. Yost, has said that LIB-8--which would amend clause 8 by adding on after line 6 on page 13, the text that one finds on page 18 of the amendments that have been distributed--if I understood him correctly, is not really a problem. There's a minor contradiction. He said there might be a minor contradiction, but that in fact the substance of it is not a problem with Bill C-32, does not change the objective substantially of Bill C-32.
I believe this is in fact an amendment that should be supported by the members of this committee. I think it brings a little more clarity to clause 8, and as he said--I'm not putting words in his mouth, he said it himself--it does not change clause 8. It brings a little bit more clarity. It repeats information that's there, and there's one little technical thing. Now, the government may wish to propose a subamendment for the one little technical thing that Mr. Yost mentioned, but I'm amazed that the government is automatically discounting out of hand this particular amendment that's being proposed.
11:45 a.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
I see a problem with it in that we're talking about these instruments that a case could be built on. We've heard testimony about the accuracy and the improvements that have been made. Now, Ms. Jennings' amendment would say “is checked for accuracy on a regular basis and has been maintained according to the manufacturer's guidelines”. My understanding of what Mr. Yost had said is that sometimes these aren't the guidelines that are in place; there may be more stringent maintenance guidelines that the committee recommends.
So for us to say this...I don't think Ms. Jennings may know the exact impact of her amendment. I don't know the far-reaching impact. But we do know that this body of law on impaired driving takes an inordinate amount of room in the Criminal Code, and this may be opening up problems that we don't foresee. I've pointed out a few of the problems--one, that this is not the practice that's in place right now, “the manufacturer's guidelines”.
Mr. Yost, do you have anything to add to that?
11:45 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
Already in the existing legislation, we have paragraph 258.1(g), which calls for a certificate of a qualified technician stating that the analysis of each of the samples has been made by means of an improved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard identified in the certificate that is suitable for use with an approved instrument. The policy of the laws, probably for 40 years, is that the way you make sure the machine is working properly is to ensure that it works properly on the alcohol standard first. This is now asking for further information.
I don't want it to be said that we're throwing it out of hand, but we've only seen it for about 30 minutes and certainly haven't had an opportunity to discuss--well, maybe two hours--it with our provincial colleagues and the police, etc.
I am concerned that we might run into a problem. I am not a certified technician. I don't know what this is going to mean.
11:45 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
As worded, this motion would require that the certificate be prepared and filed.... If, for example, the breath technician were called to give live evidence--viva voce evidence--there's nothing in this amendment that contemplates that situation. Also, the amendment sets out that this is mandatory; otherwise, the breath tests are thrown out and wouldn't even be admissible in evidence. You wouldn't get to that point unless you have the certificate, even if the technician were available to speak viva voce in court. Those are considerations that are of some concern.
Also, the idea of manufacturers' guidelines is a concern. The alcohol test committee of the Canadian Society of Forensic Science, as I understand, has taken a position that these are guidelines. These are best practices that police officers, qualified technicians, would be well advised to follow. If they had followed them in the Quebec case, they wouldn't be in court.
However, the question still arises that the science may be valid and the result may be valid depending on what aspect was not followed in the guidelines set out by the alcohol test committee, or even a manufacturer, for that matter. I imagine that's why they're taking so long in court--25 days--to settle and argue as to whether the particular guidelines that weren't followed were somehow fatal to the science or the reading.
It may well be that they have scientists who appear on both sides. The scientists who uphold the reading will probably say that even though the guidelines weren't completely followed, it's not necessary to follow that particular guideline exactly to get an accurate result. They would have been well advised to do it. We wouldn't be in court if they had.
11:50 a.m.
Conservative
11:50 a.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Mr. Pruden just said the test would be thrown out if this certificate weren't in place. Well, I wouldn't go on an airplane if an inspection hadn't been done, and I don't think we should convict someone if the routine maintenance and inspection haven't been done.
To help Mr. Moore, I'm going to propose a subamendment. Because Mr. Moore suggested there could be other guidelines that could follow, the subamendment would add the words “or any more stringent guidelines subsequently established”.
11:50 a.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
Mr. Chair, I have a bit of a problem in this area of the law, for us, on the fly, to be.... I mean, with regard to “or any more stringent guidelines”, whose determination is it whether it's a more stringent guideline? It's opening up more questions.
I appreciate what Mr. Bagnell is trying to do, but I don't know if that necessarily addresses my concern. You have to bring some evidence as to which is more stringent: the manufacturer's or the committee's guideline. Is the committee's guideline in some way less stringent than the manufacturer's? You could have a problem.
I don't know which is more stringent at this point. Without knowing that, and without consultation with the provinces on this, I couldn't support the amendment.