Justice Committee on Feb. 25th, 2009

[Joseph Di Luca]

Well, if you stopped everyone on the street and demanded every time you get in the car you need to provide a breath sample, apart from moving a step closer to a Big Brother police state—it is a step closer to that, but leaving that aside—it would no longer be random; it would be universal. You might find other constitutional matters or problems with it, because we can't require all our citizens to provide bodily samples just for the sake of it, but yes, you would remove certainly the randomness of it.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and thank you to all the witnesses for your excellent and very helpful presentations.

Following up on Mr. Murphy's questions with respect to random testing, I have a couple of questions and perhaps concerns that I'd like to direct to the Police Association.

Certainly the public is outraged by violent crime, and street crime and gang activity. We've heard some evidence this afternoon that the courts are burdened with respect to delays, which ultimately results in some charges being stayed or otherwise dismissed.

I wonder if you could comment from the police perspective. If we were to go down the road with random roadside breath testing, clearly I accept your proposition that it would lead to further charges of impaired operation of motor vehicles. Ought those resources—both police investigative and court—be better used to fight more violent crime, street crime?

[David Griffin]

In our view, if you look at the evidence from some of the other jurisdictions that have random breath testing—most of the European Union countries now have it, as the EU has recommended that it be applied to all their member states—the deterrent effect will in fact address the workload problem. You will in fact have fewer people potentially charged with impaired driving or fewer people involved in serious motor vehicle collisions as a result of driving impaired, because of the deterrent effect of the fear of apprehension. If people believe that every time they go out they have the chance of getting stopped in a roadside check and we have the type of enforcement that has been discussed, the likelihood is that the behaviour is going to change significantly.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

So you believe roadside testing will actually result in fewer charges being laid.

[David Griffin]

Potentially, yes.

[Robert Tremblay]

I would like to add one more point that is very important regarding the random effect of it.

Those operations are not traps. The recommendation on the strategic principles of driving enforcement stated that those operations have to be highly publicized. In other words, on every radio station they'll say, “There's a random testing operation going on in Moncton, so beware.” Essentially the objective is not to trap but to prevent a behaviour in the first place.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Go ahead, Mr. Therien.

[Emile Therien]

I'll raise as an issue that your real chronic offender listens to the radio and television and reads the newspaper. It's known that they are not going to go out when they know there are RIDE programs, or CounterAttack, or whatever it is. They know.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

I have great respect for police officers and the work you do. I'm just concerned, or I'd like your comments, as to whether a device such as the roadside screening device takes an important bite out of the investigative powers that a police officer has, police work, whether the human element is being replaced by a mechanical element.

[David Griffin]

I think the reality is, and I'm certainly not a lawyer, but I think the courts recognize, that the technology removes the doubt and human frailty. So the more we can rely on technology to provide accuracy, whether it's on impaired driving or whether it's DNA, in the long run it's an investigative aid and in fact reduces the time that's applied otherwise for investigation.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

So the Police Association has no concerns, from its members' perspective, that the members' discretion and ability to investigate a possible impaired operation is being compromised by the reliance on a roadside screening device.

[David Griffin]

No, not at all. I mean, really, we're discussing the goal here, which is to reduce the number of impaired drivers on the road. It's also the police officers who are going to these horrific accidents and seeing the consequences of people making the wrong choices.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Those are my questions.

[The Chair, Conservative, Ed Fast]

We'll move on to Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

It's certainly a pleasure for me to be back at the justice committee. Even though I'm filling in today, I'm certainly glad to be back at this table. I look across and I see a lot of colleagues from the last session of Parliament.

Getting on to my question, I have a bee in my bonnet, gentlemen, and it's with regard to some instances I've had, or experiences I've had, both as a civilian and as a law enforcement officer. The question, for the purpose of this report, is whether this committee should make a recommendation, via a report, to basically put the reverse onus on an impaired driver when that driver who has been in a motor vehicle accident has consumed alcohol within a two- or three-hour timeframe, which is what we normally have. Typically, these individuals, if they've been in an MVA or have driven off the road into the ditch, especially those who have experienced or are veterans of the impaired driving system, might have been counselled as to future defences if they get themselves into a situation like this again.

My question to you is whether a change to the Criminal Code that actually puts a reverse onus, or puts sort of an automatic guilty stamp on someone who consumes alcohol after being involved as an operator of a motor vehicle within that two-hour timeframe.... you and I both know that if you consume alcohol or consume anything that might alter a breath test, particularly alcohol, it is one of the technical defences that is quite well used. I'm just wondering if there is anything we can do in the Criminal Code or if there is a recommendation coming forward that we could put to government in the hope of maybe closing this loophole.

My question is for the Police Association and the others.

[Charles Momy]

As you know, right now there is certainly law that is provided when an individual decides not to blow. Obviously, there's a presumption that by not blowing.... They are charged accordingly for not providing a sample when that sample is being asked for. So to a certain degree, it's addressed in that fashion. I certainly haven't thought of any other pieces of legislation that would have that kind of reverse onus.

[Raynald Marchand]

At the Canada Safety Council we're really about prevention. This is a bit more after the fact. Certainly we'd like to see people just not drink, and under the highway codes there are certainly penalties that are there right away. You don't have to prove it. If the vehicle is in the ditch, then obviously there'll be a charge of sorts. If the person is under any level of impairment, above 0.05, there will be a charge. And it's automatically guilty, whereas with the Criminal Code there's a presumption of innocence.

We even question, at the 0.05 level, if within three hours there is going to be enough left for the instrument to even measure it in an average man.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

If I can rephrase my question to the folks from the Police Association, the perspective I'm coming from is obviously that it's tampering with evidence. The evidence is the sample.

Now, I know there are provisions in the Criminal Code that provide for tampering with evidence. Are they applied? Are those provisions for tampering with evidence sufficient in this case? Or do changes need to be made to the Criminal Code when it comes to evidence such as breath samples and so on so that we can close off some of these loopholes?

[David Griffin]

If I understand what you're talking about, it is that their defence is that they consumed after driving.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Yes.

[David Griffin]

The challenge, I think, for the police officers, in terms of being able to deal with that offence, is that they're not necessarily aware of that until the person gives evidence at trial. There's not necessarily disclosure or awareness beforehand that this defence is going to be raised.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

A hypothetical situation would be a person involved in an MVA. They leave the scene of the accident. They are later found at a local bar, and they've been seen drinking alcohol within two hours of being in that motor vehicle accident. There are people to testify as such. No charge can be laid for impaired driving. That is a problem, in my estimation. I would like to know if that issue is big enough that anybody here at this table would like to see something changed in the Criminal Code to allow an impaired driving charge to be made in that case.

[David Griffin]

There are certainly those types of issues. There's the last drink defence. There are different concerns around those types of technical defences or behaviours. The difficulty is in coming up with a solution that doesn't create a whole host of other problems.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Because there will obviously be some.

I'd be interested in hearing any last comments from the witnesses.