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.

On the agenda

MPs speaking

Also speaking

Carole Morency  Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
Greg Yost  Counsel, Criminal Law Policy Section, Department of Justice
Lyne Casavant  Committee Researcher
Joanna Wells  Counsel, Criminal Law Policy Section, Department of Justice
Philippe Méla  Legislative Clerk

7:20 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Yost

That is correct.

7:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

Are there any other comments on CPC-14?

Mr. Nicholson.

7:20 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

You will remember, colleagues, for the record, Smart Start Incorporated submitted a briefing on this. This is what certainly caught my attention here, and this is the area we're developing.

7:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

We'll move to a vote on CPC-14.

Mr. Boissonnault, I'd ask you to sit down to count your vote.

(Amendment negatived on division [See Minutes of Proceedings])

7:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

We'll move next to Lib-8.

Ms. Khalid.

7:20 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

LIB-8 is an amendment that basically deals with what is an approved container, which is defined in the bill as a container designed to receive a sample of a person's blood for analysis that is approved by the Attorney General of Canada.

If there's no approved container that's used when the blood is taken, at a hospital perhaps—a different variety of container—that shouldn't in and of itself pre-empt that blood sample or deem it inadmissible as evidence.

This amendment is basically saying that by not being an approved container, it shouldn't nullify the evidence that's collected in it.

(Amendment agreed to [See Minutes of Proceedings])

7:25 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Nicholson on CPC-15.

7:25 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

This was brought to our attention, and the recommendation to us was that if somebody is acquitted, somebody who is innocent of an impaired driving charge or an impaired charge, the evidence should be destroyed.

My concern is, and we've had this before at this committee, the proliferation of information about all of us. Who knows where this ends up? If you are completely cleared, that material, or whatever it is they have there, should be destroyed, and it shouldn't be on file or shared with other countries like the United States or anybody else.

If you're cleared, you're cleared. This should be addressed by this, because in the end, as we know with so many other areas, our personal information gets spread, put out there, and the person who is innocent shouldn't have that happen to him or her.

7:25 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Julian.

7:25 p.m.

NDP

Peter Julian NDP New Westminster—Burnaby, BC

I want to compliment Mr. Nicholson. I think this is an excellent amendment. It's something, hopefully, the entire committee can support. It's a no-brainer. This is a matter of personal rights.

7:25 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Fraser.

7:25 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

When I first read this, I agreed with it, but then I started thinking about it and wondering about some of the unintended consequences that may result. I'd like to hear Mr. Nicholson's comment, if I could. Or maybe I could ask the department for their input, and then—

7:25 p.m.

Liberal

The Chair Liberal Anthony Housefather

We can get both.

7:25 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

If other proceedings were going on, for example a civil proceeding, that were to come after the fact, would this information then not be available to that individual to use? Would that information already have been destroyed? What about provincial regulatory offences?

I know that you say, “finally acquitted of the offence and any other offence in respect of the same transaction.” I suppose you're trying to encapsulate other types of proceedings there, but I just don't know if the wording ties it up. I'd be concerned about civil proceedings.

I know we're going to be limiting the scope in a later amendment, or attempting to, to anything dealing with drug- and alcohol-related offences...rather than being used for any purpose by the government.

I have some hesitation on this, so I'd like to ask the department for its view, and then maybe Mr. Nicholson to respond to what I've said.

7:25 p.m.

Liberal

The Chair Liberal Anthony Housefather

Can I also ask the department one other question?

It says, “A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction”. Would that judge have knowledge in every province of both federal and provincial proceedings? In Quebec, it wouldn't likely be. I'm also wondering about that.

7:25 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Yost

My initial reaction is yes, they would be involved in these proceedings. I don't know how things operate in Quebec, I'm afraid. I'm a Manitoba lawyer by training. In Manitoba they would know.

7:25 p.m.

Liberal

The Chair Liberal Anthony Housefather

And Mr. Fraser's question?

October 4th, 2017 / 7:25 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Yost

There are, actually, a lot of possible unintended consequences to this amendment.

One of the first problems we see is that there is an appeal period. You've been acquitted, and you have to go back to the court to say that the appeal period has gone by. The judge is not going to be keeping track, normally, as to whether an appeal has been filed from his acquittal.

Even if the acquittal period has gone by, on more than one occasion one has read about an extension of the time granted by the court so it can hear the appeal. There's a lot of uncertainty as to how the court would know there's been a final acquittal.

You could have major new procedures, which at the time of Jordan was not something we were promoting, if I can put it that way. Some of the records are used in many ways that are unanticipated, perhaps, or certainly not covered here. Drug recognition evaluators, for example, have to recertify every two years on the basis of a certain number of evaluations they have carried out, documenting that they were accurate. I believe it's in 80% of the cases, but I'm not sure. They need to keep those records in order to be recertified. There are court records, themselves, and the police records. Who do you advise to get it?

We understand the concern. The legislation, we thought, was fairly tightly drawn, since it was administration or enforcement of a law, and it's a criminal offence to use it for anything else. You can't analyze a substance for any other purpose than the purposes of that part, so you couldn't use it for DNA analysis, or anything like that.

It's for the committee, obviously, to decide whether we were right or wrong.

7:30 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Nicholson, and then Ms. Khalid.

7:30 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

You can go ahead, if you want to.

7:30 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

I actually just wanted to seek clarification from the analyst, if that's okay, Mr. Chair.

In the proposed amendment, it says, “without delay”. If “without delay” were to be taken out and replaced with, let's say, “the longest period of statute of limitations per province”, taking into account all the appeal periods, would that remove some of the concerns you've raised with respect to that?

7:30 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Yost

My initial reaction is that I simply don't know enough about what provinces may use this for. They have procedures that could be based on a person who was acquitted of over 80 charge, but they have the BAC, or the person was charged on a basis of a BAC of 60 combined with something else, but the person's acquitted. The 60 could be a provincial issue for their licences.

Some of them have higher penalties if you've had three in five years or whatever, and they would need that record for the administration of their legislation to be connected with the person's alcohol or possibly drug abuse. I'm not in a position to say that would resolve concerns that the provinces might have.

7:30 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Nicholson.

7:30 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

The last part of it says, “the person is finally acquitted of the offence and any other offence in respect of the transaction.” When you're finally acquitted is when the appeal period has elapsed or the appeal has been settled. That's when it is final. What this says, among other things, is that all samples of bodily substances of a person who is found innocent are to be destroyed, and that individual's record shouldn't be kept.

We had this on the genetic discrimination bill, you know, the proliferation of information, where it's going, where it's ending up, and if we don't take steps to try to protect.... We're trying to protect somebody here who has been completely cleared of all offences and saying it's over. I understand with respect to somebody wanting to start a civil action against someone, but again, you're balancing off. When somebody who has been charged with an offence has been found to be completely not guilty and/or innocent of that charge, you're balancing his or her rights against somebody who may want to sue them later on. If somebody sues, they still have to go through the process of trying to prove that somebody had done something wrong on a balance of probabilities.

With respect to this, I think we're making a mistake. I thought, when this was suggested to us, that it was just that the bill was silent on this. What happens? Okay, we're having this mandatory testing, but what happens when your name finally gets cleared? What happens to the information? I don't want it to be out there that there's no remedy for that.

Ms. Khalid suggested that we further clarify with respect to the appeal period. I have no problem, obviously, with that, but it's the intent of this, I think, that should have the support of everyone.

7:35 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Fraser.