Mr. Speaker, I thank the hon. member for bringing forward and demonstrating his concern on an issue that concerns all of us. We certainly would like to do everything possible to deal with those who would drive impaired upon our roads.
However, with respect to the specific bill, I have to make certain comments. I understand that the member will maybe re-address the way in which he has approached this matter after my response to his speech.
First, the Criminal Code presently states that, absent evidence to the contrary, the blood alcohol concentration, or BAC as we are referring to it, at the time of driving equals the BAC from the breath test. The code creates a similar presumption relating to blood samples.
Bill C-452 would replace the current presumption but only for breath samples. The new wording would indicate that, absent evidence to the contrary, the BAC at the time of driving was not less than the BAC from the breath test. The presumption that the blood test result equals the BAC at the time of driving would be unchanged, which is inconsistent with the change that is proposed for a breath sample.
Currently, in order to obtain the presumption as it relates to a breath sample, the crown must prove that the first breath sample was taken within two hours of the demand for a breath sample. Bill C-452 would extend this time period to three hours.
Currently, in order to obtain the presumption as it relates to a blood sample, the crown must prove that the sample was taken within two hours of the demand for the blood sample. Inexplicably, Bill C-452 would not increase this time period to three hours in order to match the proposed increase in the time period for the presumption as it relates to breath samples.
Bill C-452 would impose a new and highly unusual requirement upon an accused person. In order to challenge the result of a breath or blood test, an accused would have to prove one of four things: first, the analysis was faulty; second, the equipment was faulty; third, the procedure was faulty; or, fourth, the accused drank alcohol after driving but before the testing. In weighing such a challenge, the bill would permit a court to consider the manner of driving, the behaviour or the result of a breath test or a blood test, including a breath test on an approved screening devise.
Under the charter, the crown must prove a criminal charge beyond a reasonable doubt. Once the crown leads certain evidence, legislation requiring an accused to raise a reasonable doubt is permissible. Bill C-452, however, goes too far because it would require the accused to go beyond raising a doubt and prove certain facts when the accused is challenging the accuracy of a breath or blood test result.
With respect to showing the equipment, procedure or analysis was faulty, I note that the police and prosecutors are in the best position to prove the equipment that was used was working properly. The accused is in no position to prove the contrary. Reversing the onus to the accused to prove these points is to relieve the crown of its burden to prove the charge beyond a reasonable doubt.
Even without this charter problem, I am surprised that the list from which an accused must prove a fact when challenging the accuracy of a breath or blood test result includes the fact of the accused's drinking after driving but before testing. Where there is credible evidence of such a fact, it goes to what the BAC was at the time of driving. It is evidence that rebuts the presumption that the result at the time of testing is the same as, or not less than, the BAC at the time of driving. Therefore the accused is not challenging the BAC at the time of testing at all.
The accused is simply saying that there is evidence to show that the BAC at the time of driving was not over the legal limit set out in the Criminal Code. It was only drinking after driving but before the test that put the accused over the legal limit by the time the test was taken. There is no challenge to the accuracy of the BAC result at the time of testing. It is just that it cannot be presumed to be the BAC at the time of driving.
Bill C-452 also says that in weighing the accused's evidence on a challenge to the test results, a court could consider the manner of driving and the accused's behaviour. While the manner of driving and the behaviour would be relevant to an impaired driving charge under section 253(a) , they are irrelevant to an “exceeds 80 milligrams percent” charge under section 253(b), for which the issue is straightforward: Was the accused's BAC “over 80” at the time of driving or not?
Bill C-452 has logical gaps when viewed in the light of the Criminal Code's presumption that relates to alcohol concentrations derived from blood samples. Even more problematic, in my view, is the bill's insistence upon changing the fundamental test for a criminal conviction. Where the accused challenges the accuracy of a test result, raising a reasonable doubt would no longer bring an acquittal. Bill C-452 would force the accused to prove a fact relating to equipment, operation and analysis of samples.
Although I started my speech today stating that the hon. member's goals were very laudable, and I commend him for that, I have pointed out a number of reasons why I think the way in which he has brought forward the bill is problematic. For those reasons, I am not able to support the proposed legislation.