Justice committee  I would skate on thin ice if I started to give charter opinion advice that was given by the charter lawyers to the Minister of Justice.

Justice committee  I am.

Justice committee  I am in criminal law policy—

Justice committee  I'm going to ask you to appreciate that lawyers in the Department of Justice give their legal and policy advice to the Minister of Justice and Attorney General of Canada, and if we breach our duty of confidentiality, we would be at risk for consequences possibly in our employment, and certainly I would be at risk for consequences with my law society, the Law Society of Manitoba.

Justice committee  In fact, it is a different element, in the sense that the passive detection device itself is completely new. There is no current provision in the Criminal Code that speaks of passive detection devices. What the provision would do is deem that a positive result on the passive detection device is reasonable suspicion, and reasonable suspicion is needed for a demand for a breath sample on the approved screening device.

Justice committee  There is no compulsion on the driver to co-operate because there is no deep lung air sample required with a passive detection device. The officer simply places it near the vehicle or near the driver.

Justice committee  There doesn't seem to be a refusal offence with the passive sensing device, but keep in mind that the officer already, at provincial law or at common law, can demand that the driver provide their driver's licence, which requires them to roll down the window or get out of the vehicle and show the driver's licence.

Justice committee  The deeming of a failure on a passive alcohol sensor, with which the officer can then demand a sample on an approved screening device, could be said to be another tool the officer can use, to the extent that it prevents people from going out and drinking and driving, because they can be more easily detected.

Justice committee  I'm hoping that I do. The proposed legislation would give authorization under the Criminal Code for the Attorney General to approve the approved passive detection device. I apologize, because I might slip into calling it a passive alcohol sensor. The Attorney General, typically at the present time for an approved instrument and approved screening device, obtains scientific advice and a recommendation from the alcohol test committee of the Canadian Society of Forensic Science.

Justice committee  I don't see that it could de-legitimize the current regime of using approved screening devices and approved instruments, or that it could cause a problem for the current officers' observations related to impairment that lead to the suspicion, that then leads to the approved screening device demand.

Justice committee  Yes, that's correct.

Justice committee  If you will permit me, I will introduce my reply by stating that there are two Criminal Code offences that relate to, let's call it, impaired driving. The first offence is operating a motor vehicle, a vessel, aircraft, or railway equipment while impaired by alcohol or by a drug.

Justice committee  The short answer is, yes, I am familiar with the notice that is required of the crown before it seeks a higher penalty based on a person's prior convictions. That is statutory, so it's not just a practice. There is a requirement in the Criminal Code in section 727 for the crown to give that notice.

Justice committee  First, thank you for the question. I think it's fair to say that most of the offenders, perhaps even with refusal offences but certainly with impaired driving and over a milligram's offences, are first offenders. They're not people who have repeatedly committed the offence of impaired driving, and I doubt very much that they would be looking at the offence and saying that, for a hybrid offence if the motion is to pass, the minimum fine is $2,000 if I'm over 160; and the fine, if I refuse, is a minimum of $1,000 if the crown proceeds by way of summary conviction, which they do in most first offender cases.

Justice committee  I want to be very clear that I'm not in a position to provide charter legal advice to the committee. That being said, it might be fair to simply point out that the change proposed in the motion is to have, instead of the current minimum fine of $1,000, a minimum fine of $2,000.