Evidence of meeting #79 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 defence.
A recording is available from Parliament.
6:15 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
Thank you, Mr. Chair.
First of all, I want to say that we in the Bloc Québécois have asked ourselves the question too. Clearly, depriving an accused of an avenue of defence is worrisome; there is no doubt about that. Mr. Bagnell is right to raise that point. At the same time, we start from the principle that when a brief is presented to cabinet, the minister must sign it. The signature attests to legal opinions stating that the document complies with guaranteed rights, especially legal guarantees, and that it would withstand a legal challenge. Of course, it has happened that a minister has signed cabinet briefs but the government then loses court challenges
That said, I would like to ask two quick questions. To your knowledge, are there common law jurisdictions similar to Canada where this kind of two-beer defence is permitted? I am not thinking of places inside Canada, of course, but other comparable countries—like Australia, New Zealand or places like that—where a defence of that kind is allowed. Basically, the government is claiming that there are people who ought to be convicted but who have not been because of this defence which, in addition, they are calling a loophole. Do we know the approximate extent of this in Canada, without the need for scientific data?
Mr. Chair, I am saying that we will be supporting this clause anyway. The Bloc Québécois has discussed the clause—you know that we discuss things and are a highly democratic party—and we have concluded that we must support this clause.
6:20 p.m.
Greg Yost Counsel, Criminal Law Policy Section, Department of Justice
With your permission, Mr. Speaker.
In developing the changes before you, we initially sought guidance in legislation in other countries, specifically Australia and New Zealand. In those countries, the two-beer defence is not possible, but this is because people are told that, if they want to contest the breathalyzer record, they must have a blood test. They are told that they can find someone and, if they come back with a different result, they can use it. This is not very practical for the defence. We therefore expressed our legal opinion that an impractical tool had no place in the Criminal Code of Canada. I know that the two-beer defence is not allowed in those countries, but, in our view, the underlying basis for disallowing it is incompatible with the methods we use in Canada.
One of the toxicologists whom we consulted was a former president of their organization. He now teaches at the University of Michigan. He has told me several times that, in the United States, no one could use the two-beer defence, and that you had to find someone to claim that the machine was defective. I cannot tell you that I have examined the legislation and the case law of all 50 states. But I know that in Great Britain, you cannot use the two-beer defence because everything is based on a blood test. This is the situation in other countries as I understand it.
6:20 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
Looking at those who have gotten away with it in Canada, what is the extent of the problem?
6:20 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
It varies. It seemed to me that the situation was worse in Ontario than in several other provinces, but complaints have been raised in all provinces. But I have to tell you that the Alberta representative on our committee said that it was not really a problem in that province and the judges there never accepted testimony of that kind. I do not know why. Perhaps their court of appeal is much more...
6:20 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
No, in Alberta. Perhaps the Alberta Court of Appeal considers scientific evidence much more favourably than the Court of Appeal for Ontario. All provinces, with perhaps Alberta as the exception, have complained about the problem. As to the extent, it is a little hard to say. The evidence is always anecdotal. Some Ontario representatives on our committee work in the Crown Law Office. They handle all the appeals, and they have told us that in Toronto these days, 50% of cases of this kind use the two-beer defence.
6:25 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
Wine is certainly cheaper in Ontario, but far be it from us to draw conclusions that could be premature.
6:25 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
My question was along the same line.
Just following up on that, you say it's half the defences in Ontario. That leaves it pregnant for me to ask how many of those are successful.
In other words, Mr. Moore would have us believe this is rampant. I've missed some of the témoignages, but I understand from Mr. Lee that we didn't actually have the answer to how many successful two-beer defences there were among all of the charges. And maybe we don't have that step, but what's the general sense here? How many cases are we talking about where this is really a problem?
I'm not against what you say, Mr. Moore. I agree with what you're saying. I just want to have a little more precision as to what quantity we're talking about so that when this soapbox summer comes around, we're not going around saying that the sky is no longer falling, we have saved the world, and the streets are all safe in rural New Brunswick.
June 19th, 2007 / 6:25 p.m.
Hal Pruden Counsel, Criminal Law Policy Section, Department of Justice
Mr. Chair, in answer to the question that has been posed, I would make this observation that has come to us from forensic scientists who work on the alcohol test committee, and that comes to us as well from police officers. That is this: if one were to believe from the number of two-drink defences that arise in the courts across this country that the number really is valid—and this defence is raised in a huge number of cases, according to them—then we have a situation in which the operator error by the qualified breath technician or the machine inoperability—meaning that the machines aren't in good working order—is epidemic in this country.
These officers and these forensic scientists tell us this is just not the case. In their estimation, the two-drink defence is the most prevalent defence used in an “over 80” case.
For argument's sake, 60% of the time that people plead guilty, maybe 5% of charges are withdrawn for whatever reason before trial; so if another—whatever that leaves—35% are going to trial, the majority of those cases are going on a two-drink defence.
6:25 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
Well, no. I'm saying that 35% of all charges under subsection 253(b) are going to trial. So the ones that go to trial are the ones in which the defence, most of the time, is the two-drink defence. It's a significant number. It's in the thousands.
6:25 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
I was just going to add to what Mr. Pruden said. We must remember that the double charge may very well have been laid--the impaired driving and the “over 80”. And if the crown has very good evidence of erratic driving and all—the smell of alcohol, the bloodshot eyes, the person is falling down drunk—and they've got a BAC of 0.22, it's highly unlikely that anybody is going to take a shot at this defence. So those would be circumstances in which there is likely to be a guilty plea to one or the other of the offences.
But where the evidence on the impaired driving is not as high—through a RIDE program or something like that—the defence is, in all likelihood, going to be the two-beer defence.
6:25 p.m.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Thank you, Mr. Chairman.
I would say this is probably about as close as we're ever going to get to that envelope of charter acceptability. My gut is telling me this.
So I'm going to ask a question to Mr. Moore. The section attempts to package procedurally one of the guilt and innocence battlegrounds that's present out there in the battle against the drinking driver. I have an obligation to take note of that ongoing battle—and the battle is ongoing. We're not by any means close to where we want to be. And I hope the court will take note of that as well.
We're not likely to make progress here unless we take risks. Simon de Montfort took risks. He was the first person to invite commoners into Parliament, and six months later he was dead and cut up into six pieces: food for thought, Mr. Moore, or Mr. Bagnell, for that matter.
In any event, I want to ask the question. And I know that before a bill is introduced into the House, the Attorney General signs off that it is charter-compliant. I want to ask Mr. Moore to confirm or the department to confirm that the Attorney General at the time this bill was introduced in Parliament did sign off that the bill in all its components was charter-compliant.
And I also want to ask if there is any comment with respect to charter compliance that would otherwise be public. I realize that advice to a minister isn't always public, but I just want to ask that and confirm that before I finally make up my mind on this amendment.
6:30 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
I was just checking with Ms. Kane, because she's above me in the hierarchy. The minister would have to advise cabinet if a bill was not charter-compliant.
I do know, though, that the previous minister signed off on the memorandum to cabinet, which includes a section on charter compliance. It said it was charter-compliant and assured cabinet that it was. There was perhaps not a certificate, but it happened.
6:30 p.m.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I guess that answers my question.
Thank you, Mr. Chair.
6:30 p.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Lee.
A recorded vote on clause 8 is requested.
(Clause 8 as amended agreed to: yeas 9; nays 2)
(Clause 9 agreed to)
(On clause 10)
6:30 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
Mr. Chair, you will recall that we withdrew clause 2 that dealt with the presence of drugs in a vehicle. When we had this amendment drafted, which other parties supported as well, there were other clauses in the bill, if memory serves, which referred to provisions in clause 2 that had been removed.
In the light of what our legislative drafters have prepared, it is my understanding that the amendments would be consequential. I imagine that all members who voted in favour of changing clause 2 will vote in favour of the consequential amendments.