Justice Committee on June 19th, 2007

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order.

I want to thank my colleagues as well as the witnesses for appearing on such short notice to complete our deliberation on clause-by-clause in Bill C-32. It's very much appreciated.

This morning we left off with a completion of our discussion on clause 8. Mr. Bagnell was interrupted because of the time, and I'll just turn to him for a minute or two. I understand he wants to complete his statement.

[Larry Bagnell, Liberal, Yukon, YT]

It's a long statement. I'm not going to be very long, but this is the one clause left that is very serious for me, so I just want to wrap up a bit. Then, if each party could make a comment—because it's very serious for me—I'd be happy to go from there.

Basically, my understanding is that there is a problem in Ontario, for instance, with appeal judges and the machine data being thrown out. If the system is not working there, then my view is to try to fix that system, try to put something in that will prevent the two-beers defence, but without throwing out completely people's rights and the ability to bring other evidence and other defences. It's as though you have a king and a prosecutor and a defence person, but the defence lawyer is not allowed to present anything other than that the machine is broken. All the legal witnesses were outraged at that.

My last quote, which I didn't get to this morning, was from Mr. Rosenthal, from the Criminal Lawyers' Association, who said, “It's a very dangerous system where we're going to convict innocent people at the expense of not getting some people convicted”. So I'd just like to quickly make an appeal, first of all to our senators, that when the bill gets there to look at this very carefully, with more time. As Mr. Comartin said, we didn't get time to bring back witnesses on this particular topic. Secondly, I appeal to the judges in the court, when this will come forward to a charter appeal, to have confidence in us as a committee that we would put something through that would lead to so many charter appeals.

I would further appeal to the NDP and Bloc, who have always been champions of rights and fair trials. I would appeal to the Conservatives, who want, as we all do, to get more convictions for drug offences, even though the witnesses said this is going to tie up the courts immeasurably, going to slow them down, make it much harder, actually, to get the types of convictions and progress we want.

Just to members as a whole, I would say it is our job as parliamentarians to try to hold up both sides and make sure people have the right to at least present a defence. They can say “I didn't commit a murder”, and the judge doesn't have to believe them. They can say “I didn't drink alcohol”, and he doesn't have to believe them, but at least they should still have the ability to present that type of evidence.

I'd be happy to hear from the other parties. I will be asking for a roll-call vote just because I think we're making a decision as to whether or not to put innocent people in jail. I'd also like to hear from the Department of Justice, unless people from any of the parties can convince me otherwise.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Now I will ask if there are any responses from the other parties.

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

I wish to speak to this issue. I will be very brief, but I do wish to speak to this.

[The Chair, Conservative, Art Hanger]

Okay, speak to it, but Mr. Moore is next on the list. I just wanted to let you speak to it so we can have the Liberal Party conclude their statement. No?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I'm happy to listen to my colleague.

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

I would simply like to read out a section of an e-mail, which was sent by Mr. Richard Prihoda on June 19, 2007, at 9:28 a.m. to Hanger, Art, MP, with c.c.'s to Justice and Human Rights, and it lists the members of this committee, including me. It says:

M. Hanger: I am addressing you the present note as president of the committee on the hearings on the amendments to the Criminal Code...regarding impaired driving infractions. I am a practicing attorney in the Montréal area for close to twenty years and am a member of the Association des Avocats de Défense de Montréal (AADM) and was told that....

I will skip a couple of paragraphs. It says:

Our Supreme Court has many years ago ruled on the presumptions which presently appear in our Criminal Code. They decided that they are a violation of the Canadians' Charter rights, but that they are nonetheless justified as an acceptable limit in a free and democratic society because of the possibility for an accused to present “proof to the contrary” in order to rebut these presumptions. [Bill] C-32 takes the possibility of presenting “proof to the contrary” away from someone facing prosecution of impaired driving offences and thus, we believe contravenes the presumption of innocence and is not an acceptable limit in a free and democratic society. The second and equally important concern that we would have wished your committee to be aware of is the situation regarding the maintenance of the equipment (breath test equipment) used by police forces across the country following the arrests of Canadian citizens suspected of driving under the influence of alcohol. As you may be aware, there is presently no regulation regarding the repair and maintenance of this equipment, and the provinces and the individual police forces across the country are left to decide for themselves the nature of this maintenance. We have recently discovered that the Montréal Police Force does no preventative maintenance of their Intoxilyzer 5000Cs. The reality is that the Montréal Police Force does not even follow the recommendations of the manufacturer (CMI) regarding the initial setup of the Intoxilyzer 5000C, nor do they follow the recommendation of the Alcohol test committee regarding an acceptable breath test program. It can therefore be said that the equipment used by the Montréal Police Force do not respect the scientific norms in order to assure precise and accurate readings of individuals' blood alcohol levels. We fear that this situation can also be said for police forces across the country. Therefore if C-32 were to be adopted in its present form Parliament would thus be permitting individual Canadians to be found guilty, without the possibility to present “proof to the contrary”, and all this based on the results of equipment which can not be considered to be scientifically precise and accurate. The AADM, several recognized scientific experts in the field, as well as the undersigned have grave concerns regarding [Bill] C-32 and were preparing to submit these to you this coming fall.

I'll end it there.

[The Chair, Conservative, Art Hanger]

Thank you, Madam Jennings.

It should be noted, too, in reference to the comments made by someone who I gather is an individual lawyer, that there is no opportunity for rebuttal by the Montreal Police Department to say one thing or another in reference to those comments. I think the committee should be keeping that in mind as well.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Mr. Chair.

I appreciate Mr. Bagnell's concern.

I would say to you that, first of all, as with any piece of legislation, a thorough charter analysis is done of the legislation before it's ever presented in the House. The Minister of Justice has to be satisfied that the piece of legislation is in keeping with the charter.

Now, the reforms proposed in this bill with respect to evidence to the contrary do not prevent a judge from assessing relevant evidence. Mr. Bagnell has mentioned a couple of times that you blow into something and you're guilty. Well, no, that's not how it works. They do not prevent a judge from assessing relevant evidence. They're designed to ensure that the judge considers the evidence—the BAC produced by the approved instrument analysis. That is the only scientifically valid evidence on the central issue before the court. That central issue is whether or not the person's blood alcohol concentration is over 80.

It must be remembered also that the over 80 offence is unique in the Criminal Code. There have been attempts to draw analogies—I think we've all done that—but the fact is that the over 80 offence is unique. It's the only offence in the code that is based on a substance being present in a person's body above a permissible concentration. Parliament established in 1969 the offence of being over 80, on the basis that at that level of BAC, the general population of drivers had a significantly elevated risk of collision. Therefore, when it established the offence, Parliament recognized that it was going to be necessary to analyze a bodily substance such as breath or blood to prove BAC.

We heard evidence that we're at the point where they're getting very accurate readings. But we also heard, and this is the problem we're seeking to address in this bill, that in recent decades, drivers charged with impaired driving were able to avoid conviction for being over 80 by calling on witnesses. These witnesses, we have to remember, and we heard testimony to this effect, are their buddies, their friends. These friends and acquaintances and family members perhaps give sworn testimony that the accused drank small amounts of alcohol, only two beers—that's where the defence got its name, although it could be one beer, two beers—which would not be enough to make their BAC over 80.

Time and time again, we heard evidence at this committee that these buddies are called to give testimony that, no, Joe only had....

Sorry, Joe. I was going to use a name that wasn't at the committee.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

A point of privilege, Mr. Speaker.

[Some hon. members]

Oh, oh!

[Rob Moore, Conservative, Fundy Royal, NB]

Okay, so Rob had only two beers.

Not surprisingly, defence lawyers have seized this opportunity to get their otherwise guilty clients off the hook. This defence has become a recurring useful defence. I would see it, as I think the majority of the witnesses who appeared in support of the bill would see it, as a loophole. It's recognized by the police, recognized by crown attorneys, and recognized by prosecutors as a loophole to get people who are otherwise guilty, people who in fact have a blood alcohol level of over 80, off the hook.

Many witnesses also discussed the fact that these approved instruments are an effective and accurate method used to determine the BAC of an individual. In spite of what Ms. Jennings just said, I don't think anyone is actually realistically challenging that the BAC devices we have now are somehow flawed or inaccurate. I think we heard testimony that they're tremendously accurate. But we undermine the instruments and we undermine the readings and allow an individual to present witnesses who are their buddies and friends to contradict the results.

It's important to mention, and I say this to Mr. Bagnell, that we're not in any way eliminating all defences possible to the accused. The person can present evidence to challenge the results, which can include evidence that the machine was not functioning properly or was not operated properly.

We must also remember that although an individual has the right to a defence, we cannot allow loopholes that are well exploited in our system to continue to be exploited. And that's what this has become. It has made a farce, I believe, of our system. We all know that a disproportionate amount of the Criminal Code is taken up by the impaired driving sections. This is a loophole that really does have to be closed. It's allowing people who are in fact over 80 to get off the hook.

So I'll close with those remarks. I think it is fair. I think it's not in violation of the charter. Of course, the protections under the charter are an umbrella under everything we do. The accused continue to have all of those protections under our charter.

I hope that alleviates some of Mr. Bagnell's concerns.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

I will turn now to Mr. Ménard.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I have a point of order, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Yes, Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I wonder if Mr. Ménard would defer to me and let me go first. I have to get back to the House, and I'm probably going to need about five minutes to give my presentation to respond to—

[The Chair, Conservative, Art Hanger]

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

On the condition that the NDP agrees to an adjournment tomorrow!

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I cannot do that.

[Réal Ménard, Bloc, Hochelaga, QC]

Yes, yes!

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Perhaps the chair could do it.

[Réal Ménard, Bloc, Hochelaga, QC]

I will give him the floor with pleasure.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Ménard.

[The Chair, Conservative, Art Hanger]

Mr. Comartin, go ahead.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

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.