Evidence of meeting #25 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was part.
A recording is available from Parliament.
Liberal
The Chair Liberal Rob Oliphant
These are not random breath tests. We should not be using that terminology.
Counsel, Criminal Law Policy Section, Department of Justice
It's caused a lot of trouble. When we did our consultation, most of the objections to random breath testing were about the power of the police to stop at random, which is a power that they already have, and that has been upheld by the Supreme Court of Canada. People don't like “random”, and I understand that.
Counsel, Criminal Law Policy Section, Department of Justice
It's mandatory if the police officer pulls you over, yes.
Liberal
September 27th, 2016 / 5:25 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
Thank you, Mr. Chair.
I want to thank the witnesses for their work.
Liberal
The Chair Liberal Rob Oliphant
Excuse me, just to correct, there is “random testing” in the bill. It's in the headline.
Counsel, Criminal Law Policy Section, Department of Justice
Is that the headline? Is that what you call it?
Liberal
Counsel, Criminal Law Policy Section, Department of Justice
I apologize for that. There's a marginal note. It is there.
Counsel, Criminal Law Policy Section, Department of Justice
Tracking of changes concerning what? Are you talking about the current code?
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
Are you familiar with the expression “track changes”?
Counsel, Criminal Law Policy Section, Department of Justice
I am very familiar with that expression.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
The provisions of the bill are inspired by the existing legislation. In some bills, what has been removed is crossed out, and the additions are pointed out. Do you have such a document?
Counsel, Criminal Law Policy Section, Department of Justice
There is a concordance that indicates, for instance, that clause 320 would become section 19.12 and that the provision is a new addition.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
That is not my question.
Do you have a document that tracks the changes?
Counsel, Criminal Law Policy Section, Department of Justice
No, I don't have such a document.
Liberal
Counsel, Criminal Law Policy Section, Department of Justice
We started almost from scratch. This is a completely new part of the bill. These are not amendments.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
Let's come back to random testing.
Let's go to subclause 320.27(3), titled “Random testing”.
Of course, we are familiar with the restrictions imposed on the use of titles in the interpretation of a piece of legislation. Those restrictions are still important and ensure that the court must rely on the wording of the provision rather than the title.
In the provision, the only parameter provided is the passage that says, “that, in the peace officer's opinion, are necessary...”. We can agree that, in this context, the peace officer is given a great deal of discretion.
Here is my question about that.
There is clearly random testing, but there may also be arbitrary testing. How can we ensure that peace officers are conducting real random testing and avoiding arbitrary testing?
Counsel, Criminal Law Policy Section, Department of Justice
There is a key restriction whereby the peace officer must have an approved screening device. They cannot make the individual wait for five minutes until another police officer arrives on the scene with a device. The intervention must be immediate, and the peace officer must have the device with them.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
Nothing is preventing them from having the device with them during each shift.
Counsel, Criminal Law Policy Section, Department of Justice
To my knowledge, the authorities in British Columbia and Alberta have decided to equip every patrol vehicle with an approved screening device to avoid a delay and any resulting issues. However, I must say that I don't see how testing that is random can be made arbitrary.