I just want to concentrate on Mr. Bagnell's repeated expressions of concern—and I don't like thinking Mr. Moore and I are in the same boat, but I think we are on this one—with regard to all the defences being brought forth and eliminated by what we're proposing to do with these amendments to the code.
That's not what's happening. What we're really doing is getting rid of a made-up defence. And I say that with all sincerity, watching the breathalyzer being introduced into our criminal justice system a long time ago and watching this defence being slowly created. It wasn't there at the beginning. It started showing up about 15 years ago. It probably started being broadly used about 10 years ago.
I want to be very clear on this. I've gotten this from judges, directly from judges, that they do not have a way of countering this by determining the credibility of the witness. Perhaps I'll just go through the sequence. It's probably the easiest way to explain this.
Here's what happens. The breathalyzer evidence goes in. You identify the accused and everything else the crown is required to do. The accused then gets on the stand and says, “I only had two beers.” More people on the stand say, “We saw him only have two beers.” The breathalyzer expert for the defence puts evidence in from a technical nature and says, “Well, if he only had two beers, the breathalyzer is wrong.” And I'm speaking almost entirely from Ontario here, because I haven't looked at cases elsewhere in the country, although I believe the same thing is happening there.
So that's the evidence the judge has in front of him. Let's say the judge at that point says, “I don't believe you, I'm rejecting your evidence, you're convicted.” The defence appeals. It goes to the Ontario court of appeal. The court says to the judge, “You have no basis for rejecting that evidence. The crown didn't put any contrary evidence in.”
Okay. So you put the crown evidence in, you put the rebuttal evidence in, and then the crown has no ability to respond; they didn't have any witnesses at the bar or the place where the alcohol was consumed. So there's no way of rebutting the defence evidence that's gone in, even though the judge says, “Look, I watched the demeanour of the accused on the stand, and I didn't believe him,” all the standard things that judges do when they're rejecting the evidence. Judges have said to me, “I didn't believe him, I didn't believe his witnesses, but the court of appeal said I had to accept the evidence because the crown couldn't put any contrary evidence in.”
That's really what we're doing away with in this amendment, and I strongly support it. I am concerned about the issue raised over the adequacy of the maintenance and the quality of the testing. I think that needs to be explored. I'm sorry that the amendment from the Liberals in that regard didn't go through this morning, because I think that would have addressed certainly a concern that I continue to have. It's just something that the justice department is going to have to look at more closely.
Thank you, Mr. Chair.
Again, Monsieur Ménard, merci.