Evidence of meeting #68 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 vote.
A recording is available from Parliament.
7:35 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
I have one question through you, Chair, to Mr. Nicholson.
What about rather than “shall”, putting in a permissive “may”, allowing the court to determine, and then counsel making argument on it? What do you say about that?
7:35 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Well, it's better than nothing, Mr. Fraser. If you and your colleagues are going to vote against this, I'd rather have that than nothing at all, because at least we're drawing attention to the fact.
In a couple of years when we're back in government, we can always change it to, “shall”, if we want.
7:35 p.m.
Voices
Oh, oh!
7:35 p.m.
Liberal
7:35 p.m.
Conservative
October 4th, 2017 / 7:35 p.m.
Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
As my colleague has said, we're not aware of what the processes might be for courts to be able to implement this. I'll just caution on that. If it is to be permissive, perhaps the committee may wish to consider “on application of the individual” or something like that. I think the concerns we were trying to identify for the committee's consideration are that we haven't had the ability to think this through or be able assess what the fuller, broader implications are, beyond understanding what the intention is and to highlight that the bill does make it an offence to use the sample for a different, unauthorized purpose.
7:35 p.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
We've heard from department officials that it's a criminal offence, if we proceed as the bill is written, to use these bodily fluids in any other way. That's enough for me. With all due respect to Mr. Nicholson, I don't think these provisions are necessary.
7:35 p.m.
Liberal
The Chair Liberal Anthony Housefather
Is that okay?
We're going to briefly recess to give them a chance to talk.
7:40 p.m.
Liberal
7:45 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thanks, Mr. Chair, and my thanks to everyone for your indulgence.
I appreciate the amendment coming forward, and it is a tough one. The reason I'll vote against the amendment is that, as we've heard from the department, there may be unintended consequences that we haven't been able to grapple with in the short time that we've been able to study this at the committee meeting here today.
Also, we've heard about the tight limitations that have been tried to ring-fence around the issues dealing with privacy. There may be issues in civil proceedings with different limitation periods in various provinces that would be far beyond the scope of any timeline for offences being resolved.
I would suggest that upon completion of the committee's work we send a letter to the Minister of Justice flagging this as an issue to consider in a future review of this bill. I know we'll be considering an amendment to the bill at a future review date. I think that would be the best way to handle it. By that time, we'll know whether any issues have arisen relating to the misuse of this information. I note that in my questioning there are no examples of this information being used for nefarious purposes. I think it would be a very limited problem. So let's write to the minister, flag this issue, and put it to future consideration.
7:45 p.m.
Liberal
The Chair Liberal Anthony Housefather
Okay, perfect.
Let's move to a vote on CPC-15.
(Amendment negatived [See Minutes of Proceedings])
We will note for the record, Madam Clerk, that we will compose a letter to the minister to flag this as an issue. Is there agreement, colleagues, to do that.
Mr. Fraser on Liberal-9.
7:45 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
We heard some evidence, I think from Mr. Spratt and perhaps some others, about what appeared to be an absurdity in the way the bill was drafted. If somebody had zero alcohol in their blood, there could still be a presumption going backwards in time that they would have actually been deemed to have been intoxicated or impaired at some time.
We heard other testimony that in practice this would never be the case because no scientist would engage in that sort of calculation. But I think this amendment addresses that issue and is consistent with what probably was intended in the crafting of this part of the bill. By the way, 20 milligrams, as I've learned from my inquiries, is the lowest amount that can actually be detected, so this should the baseline rather than zero.
(Amendment agreed to [See Minutes of Proceedings])
7:45 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
If you wouldn't mind, I'll use this occasion of having the floor to withdraw Parti Vert-5, Green Party-5. I've been advised by the clerk that it would likely be inadmissible, and I confess to you that I also have adjournment proceedings coming up shortly in the House.
I will now defend Parti Vert-4, but I thought I might as well jump to the inevitable conclusion that my fifth amendment was unlikely to be accepted as admissible.
I don't think that the Liberal amendment that was just accepted, which I support, changes the rationale for my amendment. It continues on page 29 in respect of presumptions of blood alcohol concentration. My amendment would replace lines 15 to 17 with “section (1) or (2), as the case may be”. What we now have is a deeming assumption of an additional five milligrams of alcohol in 100 millilitres of blood for every interval of 30 minutes in excess of two hours.
By ending the paragraph without that assumption, my amendment would restore a requirement for evidence from a toxicologist rather than assuming that you have this blood alcohol level for every 30 minutes in excess of two hours.
7:50 p.m.
Liberal
The Chair Liberal Anthony Housefather
The way you explained it is not the way I would have understood that. It's a conclusive presumption. My understanding is that there would be a conclusive presumption at that point. The blood alcohol level would be what it was whenever they tested if it exceeded 0.2, and not based on toxicology. Again, that's how I read it.
Could I perhaps ask the department—maybe I'm misreading—what the effect would be of removing that.
7:50 p.m.
Joanna Wells Counsel, Criminal Law Policy Section, Department of Justice
This particular presumption that the motion proposes to amend is intended to provide a legislative formula to avoid having to call a forensic toxicologist to calculate the blood alcohol concentration. The motion would essentially render that presumption inoperable for its purpose.
7:50 p.m.
Liberal
The Chair Liberal Anthony Housefather
With the Green Party amendment as it's drafted, we're now saying that there's a presumption that it's exactly the level that it was when it was tested.
At that point, the toxicologist would have to testify that the presumption was wrong. It would make it not what the current law is. It would make it more difficult for the crown than the current law.
7:50 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
I think the result would be to have two conflicting presumptions.
There is a previous presumption in the bill that says if you get the sample within two hours, then your blood alcohol concentration is presumed to be that level. If you're outside two hours is when this particular presumption that's before the committee at this point comes into effect.
7:50 p.m.
Liberal
The Chair Liberal Anthony Housefather
It says if it's “more than two hours...[it] is conclusively presumed to be the concentration” in the test.