Fair enough.
Evidence of meeting #28 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was driver.
A recording is available from Parliament.
Evidence of meeting #28 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was driver.
A recording is available from Parliament.
12:55 p.m.
Liberal
The Chair Liberal Anthony Housefather
We're coming to the close of our meeting, but we can do a speed round if any of you have any last questions that you really want to ask.
Mr. Fraser.
12:55 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you very much. I have a quick question.
We heard quite a bit on the continuum of testing impairment, being that the passive detection device would be used in order to obtain reasonable grounds to suspect and then move on to the ASD.
Do you have any thought on the paragraph 253(1)(a) ground and whether this information from the passive detection device could be used as indicia of impairment in order to establish that in court?
12:55 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
The short answer is no, and the reason is that the passive alcohol sensor is only looking at ambient air. It is not looking, the way that an ASD would, at a deep-lung air or breath sample. It couldn't be used to show that somehow just because it was in the ambient air this driver had alcohol in the body.
12:55 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Yes, but police officers testify on 253(1)(a) grounds all the time that they smelled alcohol on the person.
This is in order to heighten their ability to sense that. Wouldn't that be admissible as evidence then on a 253(1)(a)?
12:55 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
Paragraph 253(1)(a) is impaired driving, so the officer has to have evidence beyond simply that there was alcohol in the ambient air that would give the suspicion to follow a different avenue of investigation, not a 253(1)(a) investigation, but the 253(1)(b) investigation for being over 80 milligrams.
This tool is intended to help with the investigation of 253(1)(b). I don't see that it helps the crown to advance their case, if they're simply saying that well, they had deemed suspicion, but they're pursuing the 253(1)(a) actual impairment offence, because all you're showing is that there might have been alcohol in the ambient air, deemed to be alcohol in the body of the accused person. It doesn't take you very far on a 253(1)(a) charge.
1 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
I guess all I'm saying is that in addition to other evidence, other indicia—the person swerving, the person having glazed eyes, the person perhaps even saying that they've had a couple of drinks—if, for whatever reason, the crown wasn't able to proceed on the 253(1)(b), I don't see why the crown wouldn't then be able to use this information or evidence to support the 253(1)(a).
I take your point, though.
1 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
It's ambient air. It's not a deep-lung breath sample.
1 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Are there any other quick questions?
Mr. Nicholson.
1 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
I have just a comment.
I want to be on the record, with all deference to my colleague and friend, Mr. Rankin, that none of us can or should be surprised that you're not providing constitutional advice, Mr. Pruden. The Department of Justice, of course, provides that constitutional advice on a solicitor-client basis to the Minister of Justice, and any questions we have with respect to the constitutionality of that, we would get our own, whether it's Professor Hogg, or some other expert here.
On that one, Mr. Pruden, I agree with your comments with respect to that. I wanted that to be put on the record.
Thank you very much.
1 p.m.
Liberal
The Chair Liberal Anthony Housefather
Mr. Pruden, thank you so much for coming before the committee. We very much appreciate it.
1 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
Gladly done. Thanks very much.
1 p.m.
Liberal