Justice Committee on June 19th, 2007

[The Chair, Conservative, Art Hanger]

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

As a point of order, to give people warning, at the end I want to propose an amendment that says:

this bill and that the effects of its implementation be reviewed after five years by a committee of Parliament, and that the committee report to Parliament within six months of the five-year period.

[Réal Ménard, Bloc, Hochelaga, QC]

Could Ms. Jennings remind us of the amendments that she has withdrawn?

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

Yes, they are LIB-4, LIB-5, LIB-6, LIB-7 and LIB-9.

[Réal Ménard, Bloc, Hochelaga, QC]

Are you keeping the amendment LIB-8?

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

Yes.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you.

[The Chair, Conservative, Art Hanger]

BQ-2.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I wish to inform the committee that I am withdrawing the amendment BQ-2, on section 8.

[The Chair, Conservative, Art Hanger]

Okay, you're withdrawing BQ-2. You're not moving it; that's good.

That brings us up to government amendment number—

[Réal Ménard, Bloc, Hochelaga, QC]

In fact, we are withdrawing the amendments BQ-2 and BQ-3.

[The Chair, Conservative, Art Hanger]

Okay, BQ-2 and BQ-3.

On G-4, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

I move G-4.

What G-4 does is this. If evidence is brought concerning a malfunction or the improper operation of the approved instrument—and we heard testimony about that—the amendment would require the displacing of the presumption of accuracy only if the error is serious in that it would give a reading of a blood alcohol concentration of under 80.

This means that if the instrument read something like 1.2 and evidence is brought that it should have read 1.19, we don't throw out all the evidence based on some sort of trivial error. The evidence is only thrown out if it would give a reading below the legal limit.This would avoid throwing out an entire body of evidence based on a trivial problem.

[The Chair, Conservative, Art Hanger]

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, we will vote in favour of this amendment, because that is my party's position, but I have a real problem with this. I want to ensure that I have understood correctly what we are talking about.

Currently, with regard to an admissible defence before the courts, it is possible to challenge the operation of detection technologies and the document issued at the end attesting that the individual's blood alcohol concentration exceeded the level set out in the act.

However, imagine that I'm in a bar in Montreal along with the nice and attractive Ms. Brunelle, and I drink five glasses of alcohol and ask Ms. Brunelle to say in her testimony that my blood alcohol concentration was not as high as the device indicated. This kind of evidence would no longer be admissible.

[Greg Yost]

This evidence could be admitted, but Ms. Brunelle would not testify that your blood alcohol concentration was lower than 0.08. I suppose that you would agree on her testimony with regard to how much you had drunk, but a toxicologist would have to do the calculation based on your weight, the time it took you to drink your five glasses of alcohol, and so on.

It will still be possible to provide evidence on consumption, but if the operator has not made a mistake and the machine was not defective, it will have to corroborate the fact that your blood alcohol level was lower than 0.08 when you were driving.

[Réal Ménard, Bloc, Hochelaga, QC]

So, for testimonial evidence to be admissible, we would first have to prove that the device was defective.

[Greg Yost]

No, not necessarily. Perhaps we are establishing that I drank five glasses of alcohol in the 15 minutes preceding my departure from the bar. I was told that I had to immediately return to Parliament on vote on something when I had three beers in front of me, and I decided to drink them. Then, I got behind the wheel of my car and I got stopped five minutes later, while my system was absorbing the alcohol. At the time of my arrest, the test result was below 0.08, but when the test was redone 15 minutes later, it was 0.11 because my system was absorbing the alcohol. This defence, which exists now, would still be allowed. In English, it is called the last drink defence. I suppose that, in French, it would be “la défense de la dernière bière”.

However, the judge would not be allowed to say that you said you had drunk five glasses, but the toxicologist said that you were at 0.07. So, there is reasonable doubt, despite the fact that a device such as the breathalyzer proved it, that it was working well and that it indicated 0.16. That is the problem we are targeting.

[Réal Ménard, Bloc, Hochelaga, QC]

It's important that we understand this.

So, testimony by peers in a bar environment will no longer be possible, but I could always ask a toxicologist to testify as an expert.

[Greg Yost]

You could get a toxicologist to testify, but he or she will have to start with the blood alcohol level that was established by the certificate, if there was no problem with the device, in other words if there were no errors. He or she will have to start with the fact that you were at 0.12 when you were tested at, say, 10 o'clock, and calculate that you would have been at 0.07 when you left the bar, based on how much you drank.

[Réal Ménard, Bloc, Hochelaga, QC]

So, the last drink defence is admissible, but if the reading done by the device is not shown to be questionable, testimony given by one's peers cannot contradict the results. However, an expert reads the results, but based on the reality indicated by the device at the time of the reading.

[Greg Yost]

I really like that expression, “based on the reality”.

[Réal Ménard, Bloc, Hochelaga, QC]

So you see that I'm a man who can make a difference in your life.

We get the impression that Mr. Moore's amendment—and I find it surprising coming from him, but ultimately I was sort of prepared for it—has given the bill more teeth. In concrete terms, what does Mr. Moore's amendment do in terms of civility?

In fact, we are going to overturn this amendment.

[Greg Yost]

Do you want Mr. Moore to explain it?

[Réal Ménard, Bloc, Hochelaga, QC]

I would prefer for you to start and for Mr. Moore to wrap up.