Our analysis of Bill C-46 focused on part 2. We identified two themes. I will deal with the first theme and Mr. Gariépy will deal with the second theme.
My theme deals with the reliability and precision of results from the approved screening devices, and with issues related to admissible evidence and defence.
First of all, we understand the lawmakers' intent in clarifying the status of the law in the light of the Supreme Court of Canada's decision in St-Onge Lamoureux. Nevertheless, the implementation of that intent is problematic: it could have the effect of unreasonably limiting the defence on the reliability of the results of the devices and, ultimately, on the right to be presumed innocent.
The bill establishes the premise that, when certain conditions are met, the results of the test of the samples conclusively demonstrate the person's alcohol level at the moment the test was taken. The bill requires prosecutors to disclose only information related to those conditions. For other information, the accused have to apply to the court and demonstrate the likely relevance of the information they wish to obtain.
This mechanism concerns us. First, it reveals a fragmented reading of the Supreme Court's teachings in St-Onge Lamoureux. Of course, information about the maintenance and the operation of the devices at the moment of the tests is relevant and must be disclosed, but there is also information on the maintenance and use of the same devices in the past, which can also raise reasonable doubt as to the reliability of their results.
By placing the burden of demonstrating to a judge the likely relevance of other information on the shoulders of the accused, we risk requiring expert testimony in order to have the evidence communicated, which is a fundamental right to justice recognized in the charter. As the law currently stands, judges have previously required expert testimony to obtain that communication. The bill runs the risk of worsening that trend. The risk is that the result will be two tiers of criminal justice: the accused who can pay for expert testimony, and everyone else. Basically, the results would be so difficult to challenge that there would be a danger of ending up, in practical terms, with a presumption that is impossible to refute.
I will now let Mr. Gariépy talk to you about the second theme.