Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 44 - Evidence - May 23, 2018
OTTAWA, Wednesday, May 23, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, met this day at 3:18 p.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Honourable senators, distinguished guests, and members of the general public who are following today’s proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, welcome. Today we are continuing our examination of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts. We have this afternoon the pleasure of welcoming Professor Don Stuart, Criminal Law, from the Faculty of Law at Queen’s University.
Thank you, professor, for being with us today. I invite you to make your opening statement and senators will be pleased to have an opportunity to exchange views with you on your presentation.
Don Stuart, Professor, Faculty of Law, Queen’s University, as an individual: Good afternoon, senators. Thank you very much for inviting me at this late stage of your consideration of this bill.
My brief was three and a half pages in length. I believe it has been distributed in English and French, so I’m not going to repeat it in detail. I’ll just try and hit the highlights in about five minutes.
First of all, I want to say — in a rather dramatic way — that in 1995 I was nearly killed by an impaired driver. My vehicle was totalled and I was very hurt. As a lawyer and a law professor, what was intriguing to me was that the Kingston police managed to achieve a conviction and a three-year sentence without following any of the Criminal Code provisions. I sat as a law professor watching in front of me the laws being not followed.
When we pass a big, complicated and important bill like this, we have to be alert to the thought that not all police officers will be trained well enough to follow it explicitly. We have to be careful.
The only point of my attendance today is to try and refute the view of Peter Hogg and the Minister of Justice that taking the reasonable suspicion test out of the approved screening device is constitutional. I believe you had two defence counsel saying the same thing earlier on. I have no doubt at all that there will clearly be constitutional challenges to that reform.
For a very long time, we all had the Supreme Court tell us that because of the evils and dangers of impaired driving, we’re not going to have the Charter stand against the random stopping of motorists or the random stopping by a single officer in the country for the evils of impaired driving. That’s arbitrary detention under section 1. That’s not in debate.
What has also been clear for a very long time is that in the initial stages, inquiries have to be limited by police officers to vehicle-related reasons. You can’t go looking for crime. That’s a different regime. You can’t search vehicles.
We had an OPP officer the other day who said, “It’s my practice on the 401, when I stop a car, to search every part of the vehicle.” The Ontario Court of Appeal overturned that conviction.
So as long as it’s vehicle-related, it’s all a go for police officers for very good reason. But what’s not all a go is the way you define evidence of impaired driving. Traditionally we have the approved screening device, and for a very long time we’ve had the requirement of reasonable suspicion. Under section 8, that’s been the standard. This bill would take that away in the case of investigations of impaired driving when the officer has an ASD device on hand.
Now, Professor Hogg and the minister relied on an old case called Collins in which Chief Justice Lamer said, and this is the test for section 8:
A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search is carried out is reasonable.
So that seems pretty easy. You just ask yourself the question: Is this law allowing an approved screening device without reasonable suspicion reasonable? Peter Hogg can rely on his roots in Australia and New Zealand in saying that they’re doing it now and it’s detecting impaired drivers and it’s a deterrent. Well, the only difference between New Zealand, Australia and us is they don’t have an entrenched Charter of Rights and Freedoms. I don’t think it’s a good idea for Parliament to be proposing something which is so clearly up for challenge.
Why am I so confident in that? Well, because there are literally hundreds of cases of section 8 and none of them turn on: Does the judge think the law is reasonable? This is just a term of art and summary that Chief Justice Lamer put in place.
The question completely omitted from Peter Hogg’s brief and from the Minister of Justice relying on it is that the controlling authority for section 8 is Hunter v. Southam, which is one of the most important judgments ever written regarding the Charter. It talks about purposive interpretation. It talks about privacy interests being protected by the standard against unreasonable search and seizure.
In a later decision, they also said you have to ask the question in a neutral way. You don’t say in this context, for example: Do you think drunk drivers should not be able to be searched because there’s no reasonable suspicion? No. You ask the question: Do you think the privacy interests of all drivers are upset when police officers routinely are allowed, without any checks on their powers at all, to submit people to approved screening devices?
Hunter v. Southam would go as far as to say you start with the assumption that you have to get a warrant. Well, of course, nobody is going to suggest you get a warrant for a random stop for vehicle-related reasons on the highway. But Hunter v. Southam says if there is no warrant, it’s a reverse onus that the Crown has to prove it still doesn’t violate section 8. They usually insist on reasonable and probable grounds, which is the standard for a Breathalyzer test, stage 2 of investigative impaired driving. But sometimes over the 30 or 40 years that we’ve had the Charter, the courts have backed off of it. They’ve backed off the reasonable and probable grounds, saying it’s too tough on law enforcement people, and so for example with a screening device, it’s reasonable suspicion, with dog searches, also with investigative detention.
Investigative detention can be when police officers stop pedestrians and when they stop vehicles. They can’t do it under the Charter unless there’s individualized reasonable suspicion. The courts made it very clear that just a mere routine subjective hunch or generalized suspicion isn’t good enough.
I want to point out that the Supreme Court of Canada has never saved a section 8 violation under section 1, not one case since 1982. Peter Hogg sort of has a fallback: “Well, if it’s not reasonable, it’s saved under section 1.” No, not yet. I’m not saying when the challenge comes there couldn’t be a change, but it seems to be highly unlikely that the present court would change.
So what’s the worry about taking out reasonable suspicion? The worry is undoubtedly racial profiling and the police force against racialized groups, Indigenous people and vulnerable groups. I’m always a bit reluctant to state that. I was a prosecutor. I’ve worked with police officers. Are all police officers racist? Of course not, and many times when you assert that, they’re very upset. But there’s no doubt at all with the empirical data we’ve had in Toronto, Vancouver, Saskatchewan and elsewhere that investigative detention under the practice of carding has resulted in huge racial discrimination against vulnerable groups.
There’s no basis to suggest that if you give the police the power, when they’re already stopped for random vehicle reasons, that they can do whatever they want on a racist basis and there will be no check against it because it will all be legal. That’s exactly why the Supreme Court of Canada has put in place a standard of reasonable suspicion.
I also find it telling that the authors of this bill keep reasonable suspicion for the other part of the bill, which I’m not going to talk about, the one about oral fluid screening. That’s going to require reasonable suspicion because I guess it’s more controversial.
I’m here to suggest that this is controversial as well. It’s a dangerous power to put in the hands of all police officers in Canada, and I think it will clearly result in a Charter challenge.
Thank you.
The Chair: Thank you, professor.
[Translation]
Senator Dupuis: Thank you for being here, Professor Stuart. As to the dangers of racial profiling, do you think there is a difference if the random tests are conducted at predetermined locations rather than spontaneously and without notice by a police officer? Are drivers stopped one at a time or are all drivers systematically stopped at a certain location, at a specific time, on a specific day?
[English]
Mr. Stuart: There is a difference. Justice Sopinka, joined in the Hufsky case, said that he didn’t oppose random R.I.D.E. programs stopping everybody. When it was extended to the one individual police officer stopping on a random basis, he suddenly said, “This is the last straw for civil liberty,” so I think there’s a difference.
The more obvious one is when you have an advertised R.I.D.E. program and police are all around the place and it looks like they’re stopping everyone, what’s the protection if, in fact, that’s not true, that they’re actually picking on groups? Without the test of reasonable suspicion, there’s no Charter argument at all.
[Translation]
Senator Dupuis: In your brief — and I assume the English is the original version, it says:
[English]
It seems likely that this new unrestricted breadth screening power will be used by some officers against racial and other vulnerable groups.
[Translation]
The French version says: “Mais si nous allons trop loin. . .”, which translates roughly to “But if we go too far. . .”
The wording is not exactly the same. What leads you to make that kind of assertion? Is it because this can be expected to lead to abuse and racial profiling by police officers? On what data do you base that statement?
[English]
Mr. Stuart: Well, the Minister of Justice herself raised the issue of racial discrimination in these new laws, but she expressed, I think to your committee, that she was confident in our law enforcement officers that they will abide by the law.
My response to that is based on the huge data that arises in carding practices, which are based on the same idea that trusts that the police won’t pick on people who are vulnerable groups. They definitely have. I apologize for the short brief that I wrote. I had a few typos because I was marking a hundred exams at the same time; it makes you feel brain dead.
I could have given you about 10 different studies to indicate that carding practices result in picking on vulnerable groups. The most recent one is the Ontario Human Rights Commission, racial profiling is daily reality for many Ontarians, 2017. The report reinforces concerns about racial profiling.
I edit a national criminal reports series. At this time of year, I personally get across my desk 350 or so judgments in English. I have yet to see any judgment on the interpretation of reasonable suspicion which is so clearly anti-police, but there are some examples when there was no reasonable suspicion whatsoever and the case has been thrown out.
I think the judges are familiar with it. It comes across their desks on a daily basis, and just like I’m opposed to arbitrary search power, we don’t have arbitrary strip or breath test powers yet. I don’t think we should.
I’m very careful to say that in the year I was in practice in Toronto, I could see what happens when some defence counsel raises the issue of race. It completely poisons the case. Everybody gets defensive. And I don’t blame the police officer for getting defensive.
In the reported case law, there are lots of cases that would indicate that sometimes police officers trying to do their job and catch the bad guys pick on people who are vulnerable. It’s going to make it much more difficult to review if there’s no standard of reasonable suspicion for a screening device.
[Translation]
Senator Boisvenu: Welcome, Professor Stuart. Perhaps you answered my question while I was not here. With respect to this bill, were you surprised to see that there would be random screening for alcohol but not for cannabis?
[English]
Mr. Stuart: Yes, that seems to be a glaring inconsistency. I’m not on expert on marijuana, but I understand the science of everything there is very complicated and debatable and more controversial. It’s good that reasonable suspicion standard is put for that type of screening.
If it’s done as a protection against something that might be controversial in its application, why not keep it here? Yes, I’m surprised that it applies to one form of screening but not the other.
[Translation]
Senator Boisvenu: We heard from addiction experts that a blood level of 2 to 5 nanograms would be very difficult to defend in court, given the scientific evidence. Further, it would also be very easy to challenge the link between THC levels and intoxication.
As a constitutional law specialist, do you think it would be difficult to prove a THC level in court? Would that be a limitation of this bill?
[English]
Mr. Stuart: Yes, I agree with you, senator.
[Translation]
Senator Boisvenu: To avoid overloading the courts, would a zero tolerance policy, no consumption while operating a motor vehicle, be the most rational approach to make sure our courthouses are not overloaded with challenges?
[English]
Mr. Stuart: As I said, I’m not an expert on proving impaired driving; I’m just a victim. There’s no country in the world that doesn’t try and measure the level of alcohol you’ve consumed over a certain period of time. I don’t really want to get into this because I haven’t prepared for it and it’s not my area of expertise. I see something in the bill that clarifies a lot of the technicalities of impaired driving that would save time in the courts if and when it’s passed. But this one seems to stick out as being something that we should be proud of the Charter of Rights and Freedoms. It presents some balance.
When you get a strong law-and-order group — Bob Solomon is a wonderful person, a very good academic. He’s an extremely strong spokesperson for MADD, and he does a great job of it.
The next spokesperson will be from the police association, perhaps, saying maybe it’s good to have automatic carding practices. I see a slippery slope. The main thing is I don’t understand why it’s necessary to depart from it.
I go back and say that the data from Australia and New Zealand, that it’s worked well there, is in the countries that don’t have a constitutionally entrenched Charter of Rights and Freedoms.
Also, it seems to me when you’re talking about the dangers of impaired driving, it always turns out to be a matter of resources. How many police officers are out there actually looking for impaired drivers? The law has only partly answered the question. So none of this is easy.
For example, I was reading the material that’s coming out now on distracted driving killing more people than impaired driving. The next thing we do is move into distracted driving and have something arbitrary there. I don’t think that’s how the law should work. I think it’s working relatively well. I agree that there are a fair number of overly complex parts of impaired driving cases, and if I was prepared to answer this carefully, I would actually say I agree with a lot of it, but not this.
[Translation]
Senator Carignan: I read your notes, and I saw the case of R. v. Mellenthin, in 1992, in which the Supreme Court ruled as follows:
The fairness of the trial would be affected if check stops were accepted as a basis for warrantless searches and the evidence derived from them were automatically admitted. To admit evidence obtained in an unreasonable and unjustified search carried out while a motorist was detained in a check stop would adversely and unfairly affect the trial process and most surely bring the administration of justice into disrepute.
Further in the decision, it says:
The search, conducted as an adjunct to the check stop, was not grounded on any suspicion, let alone a reasonable and probably cause.
The court concluded that this was a Charter violation.
This quote is consistent with your comments today, but you did not mention Mellenthin in your presentation. Am I missing something? I think what the Supreme Court ruled in 1992 is exactly what you are saying today.
[English]
Mr. Stuart: Yes. I was encouraged to write a short statement. Peter Hogg’s statement was short; I was short, too. But, of course, there are hundreds of cases dealing with this issue on the facts. I just think that to have no mechanism, no criterion at all as to whether or not this police officer rightly or wrongly —probably wrongly — was overusing this device against vulnerable groups, there will be no protection against that at all.
Senator Gold: Professor, thank you for being here. I think many of us who are legally trained learned their criminal law thanks to you in some way or other.
You stated, and I think we all agree, that there clearly will be Charter challenges. I guess the question for us is whether or not these challenges will be successful.
I wonder if you could talk to us a bit about section 1 of the Charter. You’ve spoken a lot about section 8. You mentioned in your brief that you agreed with Professor Hogg, that the infringements of sections 9 and 10(b) would be saved. Could you share with us why you think that would be? What is it about Bill C-46 that would justify, under section 1, the infringement? Then I’m going to ask you to walk us through section 1 as it applies to random or mandatory testing.
Mr. Stuart: Well, it’s just that with the Oakes test, which started off as a strong test, is the law rational, proportional and does the good outweigh the bad? Clearly at this point it’s a policy debate. There’s no doubt; there’s not sort of like legal tests. We’re talking about: Do the justices in the Supreme Court think that this law meets those balancing tests?
So far, probably the most spectacular saving of a law was indeed the arbitrary stops looking for impaired drivers. But I make the point that there’s not a single case that I’m aware of where the Supreme Court has actually said that a law that violates section 8, unreasonable search and seizure, can be saved under section 1 — nowhere. Hundreds of cases since 1982.
I think the reason for that is rather like another area — mandatory minimum punishments. The question is: Is it a grossly disproportionate sentence? And here, previous governments have put in place 100 or so mandatory minimums, and the courts are now given, under section 12, the chance to attack them. Approximately two thirds of all challenges under that section are successful. None of the courts go to section 1 and say, “Well, if it’s grossly disproportional, anyhow it’s good.”
I think the same thing would happen with section 8. You can’t say: “I’ve decided it’s unreasonable search and seizure. They didn’t have a warrant. They didn’t require reasonable and probable grounds. They didn’t even require reasonable suspicion, but it’s okay.” I don’t see the court, unless it changes, of course — court watchers like myself probably need to get a life. Supreme courts change.
One of the questions is what’s the remedy if you keep reasonable suspicion? There are some recent movements in the courts that talk about being less enthusiastic about using section 24(2) to exclude evidence in Breathalyzer cases, very recent from the Ontario Court of Appeal, a case called Jennings. Sometimes the courts are saying: We’ve gotten too technical and we shouldn’t exclude it even if the police made a mistake. But I don’t see the absence of reasonable suspicion as being technical; it’s crucial.
Senator Gold: As you mentioned, under Oakes and its progeny, it’s a question of balancing the objectives of the law and the degree to which the law achieves those objectives in a way that minimizes rights to the greatest extent possible. We’ve heard evidence that the introduction of mandatory testing will likely significantly reduce accidents and the harm that they cause on the road, even discounting for the differences between jurisdictions, and that despite our current laws, drivers escape detection at the roadside and many die and are injured every day.
So if the evidence does establish that mandatory testing, notwithstanding the infringement of section 8 — and I agree with you that it infringes section 8; here I disagree with Professor Hogg on his interpretation of section 8 — if it nonetheless can be shown that the law will have a really material impact on reducing the carnage, which the court has said is a legitimate and important objective, and that there is no better way to effect that serious reduction, would that not satisfy section 1?
Mr. Stuart: Well, everybody is relying on the empirical data of Professor Robert Solomon from Australia and New Zealand.
Senator Gold: As interpreted by Robert Solomon. Data exists independently, I think.
Mr. Stuart: We haven’t really got equivalent data in Canada at all.
To me, the value of having a Charter of Rights and Freedoms is that independent judges can exercise their powers mandated under the Charter to provide some balance against law and order groups.
I mentioned distracted driving. If I’m a parent and my daughter, for example, is killed by a distracted driver, I’m going to say, “Everybody who drives using an iPhone goes to jail or gets to be convicted, no excuses.” That would be a law that you and I wouldn’t like, I don’t think. It seems to me like I would need to be convinced that, under a reasonable suspicion test, a lot of drunk drivers are getting off.
As I said to you before, it seems to me, for example, when we have public holidays, there’s suddenly an announcement of a big campaign against drunk driving and the numbers drop. Then when Monday comes around, there aren’t enough police officers to do it. Sometimes enforcement is not a matter of legal powers but a matter of whether there are sufficient resources to do it.
Politicians often talk big about whatever it is, like we need a mandatory minimum penalty to be tough on this type of crime, and then forget the outcome there is that nobody pleads guilty anymore and it just clogs the courts and then they launch Charter challenges to upset the mandatory minimums. I think that’s what’s going to happen here too on this one.
Senator Batters: Professor Stuart, thank you very much for coming to our committee today. It’s always neat when the people whose textbooks you read in law school are in front of this particular committee.
For the benefit of people watching this committee today who don’t have your short written statement as we do, could you briefly outline your significant criminal law credentials?
The Chair: Don’t be modest.
Mr. Stuart: I arrived in Canada in 1970. Because I came from South Africa, worried about apartheid laws and the oppression against disadvantaged groups, just in time to listen to Pierre Elliott Trudeau pass the War Measures Act saying every Canadian loses their civil liberties, it was a very traumatic day for me.
Canada has been a wonderful country to us. At the risk of being a Charter thumper, as they call it, deprecatingly, I think if you look through the effect of the Charter of Rights and Freedoms, especially in criminal law, you’ve got wonderful initiatives. We’ve got doctor-assisted suicide. All prostitution laws were declared inoperative. Maybe the new ones will be as well. Who knows? It’s just a balance. Politicians are there to pick up — they scrap with each other as to who’s going to be toughest. Judges are there to achieve justice.
So I got involved in being an editor of the Criminal Reports. I’ve already mentioned that. We published from across the country. I think people don’t realize how many cases there are. In my job as chief of that since 1982, we select for publication about 3 out of every 100 cases. So there are 97 cases. If you were to say to me, “Give me all the cases on section 8 on impaired driving,” there would literally be hundreds, and some are better than others.
I also happened to use the same team to be — the National Judicial Institute has something called a Criminal Essentials e-letter. We produced an e-letter every three weeks that goes to a thousand judges. I don’t think a thousand judges are reading it, but I hope some are. You can’t generalize from law professors to judges, but a whole lot of people in this criminal justice system are doing their very best at the very top quality, and that includes defence counsel who try to keep up with the nuances of Charter jurisprudence and will be one of the first people to attack part of this law.
You wanted me to keep blowing my own horn.
Senator Batters: You’re very modest. It’s like pulling teeth.
Mr. Stuart: I’ve written several books. I believe it’s probably a modern phenomenon that lawyers today, including my students, will often come to me and say, “I couldn’t find anything on that.” What they’re doing is computer retrieval by word processing. “Give me all the cases on impaired driving and suspicion,” and you get way too many cases. So I think it’s unfortunate, as I reach my retirement day tomorrow, that books are not being used more.
The other thing I want to say is that I learned a great deal from being a full-time prosecutor in Toronto in whatever the year was. You can’t generalize about any occupational group. You can’t generalize about all judges. Some judges are lazy. Some judges work too hard. Some judges write too much. The same with defence counsel. Some are terrible. Some are wonderful. Crown attorneys, the same. The same with police officers. This is a very human enterprise of criminal justice, and we need to be careful that we don’t send people to jail for no good reason because it doesn’t work, other than to protect society while they’re there.
Anyway, I want to stop bragging.
Senator Batters: Thanks very much, sir.
Senator Pratte: Professor Stuart, in this balance exercise that the Supreme Court would have to engage in to decide whether mandatory testing would be salvaged by section 1, what would be the impact that this screening test is usually not used as direct evidence but simply to direct the driver to another test that will be used as evidence?
Mr. Stuart: That’s a good point, but we also all know that in this early stage, stage one, the screening test, the courts have also said there’s no right to counsel.
Senator Pratte: That’s correct.
Mr. Stuart: And if you say, “I refuse to provide this screening test because there’s no reasonable suspicion, and I’m innocent here,” you’re committing an offence of failing to provide a breath sample as equally serious as a Breathalyzer test. For example, if you ever got hold of a defence counsel who knew what they were doing and the police officer says you have to blow into a Breathalyzer, most conventional, good legal advice is provide a sample because it’s going to be just as serious if you don’t. Maybe there will be a defence that the machine is not working, or something like that.
It’s integrated. There are cases, and I was reading one this week because I knew I was coming here. The judge went through saying, “Is there reasonable suspicion for the approved screening device?” And he distinguished different cases and said, “In this case, there was more suspicion than the previous case where there was no suspicion.” Was there enough to go from that to reasonable and probable grounds for the Breathalyzer? That’s what they do. They’re playing with legal tests, but they’re basically standing back at the end of it and saying, “Did this police officer use more power than the Criminal Code and Charter standards give him?” The answer was yes or no. There’s no consistency. It’s judges conscientiously doing their jobs.
So I’m opposed to arbitrary rules. The best example we have of that is all the politicians who voted for mandatory minimum punishments and seeing judges when they review it, often they don’t make sense, and they’re striking them down with very long judgments. It is a great lack of resources. We should make a parliamentary move to get rid of most of the mandatory minimums.
Senator Pratte: Thank you.
The Chair: Professor Stuart, thank you very much. Professor, we are privileged to have you on your last day of lecture. I don’t know if we will all graduate, but at least we followed your presentation attentively. It was appreciated by senators around the table. We wish you well in the next part of your career. No doubt, we expect you will continue to contribute to the legal and judicial discourse and conversation in Canada on the Criminal Code.
Mr. Stuart: Yes. It’s very important and exciting.
The Chair: Thank you very much for your appearance this afternoon, professor.
I need a motion to be in camera for the next part of the meeting.
[Translation]
Senator Dupuis would like the committee to proceed in camera.
[English]
Any objections?
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: Honourable senators, the meeting is resumed. We are sitting in public.
Before we begin clause-by-clause consideration of Bill C-46, I would like to advise members that we have with us officials from Justice Canada who can be called to the table to answer questions if members wish. I see the familiar faces of our contributors to our work in the room, so they are available if, during the course of discussions on any clause or amendments, there is a need to get the contribution of the officials from Justice Canada.
I would also remind senators of a number of points regarding the process. I will call each clause successively in the order in which they appear in the bill by groups of 10 sections. In each group of 10 sections, I will call signify if we have received amendments so that it will be easy to identify which amendment and to which section of the bill they pertain. That will make our consideration easier.
If at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we all have the same understanding of where we are in the process.
If a senator is opposed to an entire clause, I would remind you that in committee the proper process is not to move a motion to delete the entire clause but rather to vote against the clause as standing as part of the bill.
I would also remind senators that some amendments that are moved may have consequential effects on other parts of the bill. Should this be the case, it would be useful to this process if a senator moving an amendment identified to the committee other clauses in the bill where this amendment could have an effect. Otherwise, it would be very difficult for members of the committee to remain consistent in their decision making.
The staff around the table will endeavour to keep track of the places where subsequent amendments need to be moved and will draw attention to them.
Because no notice is required to move amendments, there can, of course, have been no preliminary analysis of the amendments to establish which one may be of consequence to others and which may be contradictory.
Finally, I wish to remind senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which, obviously, provides unambiguous results. Senators are aware that any tied vote negates the motion in question.
Are there any questions on any of the above, honourable senators, before proceeding?
Do senators agree for us to share the amendment package with officials around the table? Yes? That is the usual procedure, just to make sure that the officials are always available as we progress in our work.
Is it agreed, honourable senators, that the committee proceed to clause-by-clause consideration of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts?
Hon. Senators: Agreed.
The Chair: Shall the tile stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Yes, senator, I know that you have one. You are in my bank account. But as the preamble will be dealt with at the end, I will make sure I call you with your amendment, senator.
Honourable colleagues, is it agreed, with leave, that the clauses be considered in groups of 10?
Hon. Senators: Agreed.
The Chair: Shall clauses 1 to 10 carry?
I see that there is an amendment to clause 2, and that amendment has been introduced by Senator Carignan.
[Translation]
Senator Carignan: It pertains to —
[English]
The Chair: Let me rephrase, senator. We are on the first group of 10 clauses, and in that group, there is one amendment by Senator Claude Carignan on clause 2. Clause 2, I understand, is on page 3 of the bill.
[Translation]
Senator Carignan: Exactly. I propose:
That Bill C-46 be amended, in clause 2, on page 3, by adding the following after line 10:
“253.2(1) Before a regulation is made under section 253.1 in respect of a blood drug concentration for a drug, the Minister of Justice and Attorney General of Canada shall cause the proposed regulation to be laid before each House of Parliament, along with a report setting out the scientific evidence that demonstrates the link between impairment and the proposed blood drug concentration.
(2) A proposed regulation that is laid before Parliament shall be referred to the appropriate committee of each House, as determined by the rules of that House, and the committee shall review the proposed regulation and present a report with its findings to that House within 30 sitting days after the day on which the proposed regulation is referred to it.
(3) A regulation is not to be made unless it is approved by both Houses of Parliament.
(4) Subsections (1) to (3) apply in the case of a proposed amendment to a regulation made under section 253.1 in respect of blood drug concentration for a drug.”
Right now, there is no proven scientific link between the level of THC in the blood and impairment. As we have seen, people who consume medical marijuana, for example, and people with a residual amount in the blood could be in violation because of the set limit.
The minister even stated herself that there was no scientific basis for using a regulation to establish an offence. This amendment would suspend the regulation that establishes a set limit until the government is able to conclude that there is sufficient scientific evidence to establish that limit. At that point, the regulation will once again have to be presented to both houses. I already mentioned that in my speech at second reading. It is rather unusual for a criminal offence to be established by regulation instead of by being adopted by both houses, with all the attendant publicity, of course. In practical terms, the objective is to suspend the adoption of the regulation or the power to adopt a regulation establishing a set limit until the government can scientifically prove it and tables the proposed regulation before Parliament once again.
The Chair: Thank you, senator. Are there any comments? Senator Gold.
[English]
Senator Gold: Honourable senators, I’m going to oppose this amendment. Respectfully, I think it misrepresents the nature of the scientific uncertainty that witnesses have testified to. The proposed limits are based upon the best scientific evidence that is available to the government. Furthermore, based upon the experience of other countries, based upon recommendations of the Drugs and Driving Committee, this amendment would have the effect of denying to law enforcement officers an additional tool necessary to deal with the problem of driving after consuming drugs.
All scientific evidence demonstrates that drug use impairs those motor facilities and cognitive faculties relevant to driving. The per se test required a standard. The standard was based upon the best scientific evidence in the experience of other countries, and it’s the prudent thing to do going forward. So I oppose this amendment.
Senator Batters: At the same time, we also have heard the minister herself talking about the science here being not involved, not exact. We’ve had testimony from witnesses talking about how chronic users of marijuana have a substantial amount of THC levels still remaining in their systems one month after not consuming any further marijuana after smoking a joint one month prior to that.
I think those things need to be remembered in this context, and I will be supporting this particular amendment.
The Chair: Thank you, senator.
Senator McIntyre: I’m in favour of Senator Carignan’s recommendation. The reason for that is I think it has become very clear that the testing, evaluation and the approval process for drug screeners is not in place before being approved by the Attorney General.
We all remember Trevor Bhupsingh and Rachel Huggins, witnesses who testified before this committee. Mr. Bhupsingh made it very clear, as I recall, that the process is not ready yet. There’s no publication in the Canada Gazette and the screeners have not been approved by the Attorney General.
We also heard from Wade Oldford, Chief Superintendent and Director General of the National Forensic Laboratory Services. He made it clear that there will be a significant increase in workloads for drug-impaired service requests. With the introduction of roadside testing, there will be an increase in the requirement for pretrial technical and scientific support by forensic toxicologists to prosecutors. There will be an increase in the number of requests for court attendance by forensic toxicologists. In other words, their hands are full.
I think Senator Carignan’s amendment is a good one because he makes it very clear that the regulations have to be cleared by both the House of Commons and the Senate. The regulation is not to be made unless it’s approved by both houses of Parliament.
We’re just not ready for the screeners. We have to clear that first.
The Chair: Thank you, senator.
Are there any other comments?
[Translation]
Senator Dupuis: I am trying to understand the amendment. Is it being argued that all proposed regulations should be tabled in both houses of Parliament like a bill that has to be debated and voted on by both houses of Parliament? Is that correct?
Senator Carignan: Not “all draft regulations,” but the government’s proposed regulation mentioned in section 253.1. This is a process whereby the regulation must be studied by the committee of each house within a certain timeframe, within 30 days after the day on which the regulation was tabled. The regulation can only be made with the approval of both houses of Parliament. The committee report recommends therefore that the regulation be voted on and passed by the house.
Senator Dupuis: That seems to be a new type of procedure. There is a joint committee that considers proposed regulations. It appears that this introduces a new procedure in the second subsection. So two new committees could be established.
Senator Carignan: It would be the relevant committees of both houses. The committee you are referring to checks to make sure that proposed regulations are consistent with the legislation. That prevents contradictions between certain regulations. The purpose is to ensure consistency and to prevent contradictions.
We are talking about something different. The Senate could call upon the appropriate committee, and I hope it would be the Standing Senate Committee on Legal and Constitutional Affairs, to recommend or advise against draft regulations, based on the latest scientific evidence available.
Senator Dupuis: That is what I understood. So this would be a new kind of proposed regulation. Normally, a bill is tabled in both houses and is then passed. Then there is a procedure for regulations and delegation to the executive, to cabinet or to the council of ministers, for regulations to be made. We are introducing what I would call super-regulations, or at least a different class of regulations. That seems to me to be a precedent.
Senator Carignan: It is still a regulation and order by Governor-in-Council. The adoption process is to consult both houses, because the purpose of the regulation is to create a criminal offence. I do not know if you have found instances of a criminal offence being created by regulation. I looked, but did not find any. It is a type of compromise between a regulation made without consulting both houses, and an act, typically adopted by both houses, according to the regular parliamentary process, to create a criminal offence.
Senator Dupuis: This would be a draft regulation without consultation and we are being asked if we would like to do this and whether it would be a good idea.
But that is not what you are saying. If I understand the wording correctly, you are saying that it must be passed by both houses. In the third subsection, it says that the regulation may only be made with the approval of both houses. That is not a consultation, but approval by both houses. That is why I think this would create a new category of regulations.
Senator Carignan: The committee is consulted and Parliament decides.
Senator Dupuis: I am trying to understand your proposed amendment. The idea is that the regulation could only be made with the approval of both houses. Let us say it is the Standing Senate Committee on Social Affairs, Science and Technology.
Senator Carignan: It is very likely that it would be the Standing Senate Committee on Social Affairs, Science and Technology, and that would be very interesting.
Senator Dupuis: Let us say it is put before each committee designated both houses. The committees then report to their respective house, either the Senate or the House of Commons. There would then be a vote in the Senate on a government bill. That is draft government order.
Senator Carignan: Yes, that is correct.
Senator Dupuis: Perfect, thank you.
[English]
Senator Omidvar: This is choppy waters for me, Senator Carignan. Is there a precedent for this kind of super regulation?
[Translation]
Senator Carignan: Yes, there are precedents, such as for the Firearms Act and the Official Languages Act. There are other acts, but if you want more detailed information, we can forward that all to you.
[English]
Senator Gold: I won’t repeat myself. I think the effect of this would be to unduly delay the bill and put Canadians at risk.
But I also think that some of the explanations given for it are not based really upon the science and testimony that we heard. It’s true that chronic users may have a certain level of cannabis in their blood long after they have consumed, but you cannot be required under this bill to take a blood test unless you have in fact reasonable grounds, which is established by the oral testing at the side, which is set at 25 nanograms, which means you would have had to have consumed quite recently.
So unless you are driving in a way that suggests that you are impaired or you have recently consumed, there would be no legal basis for you to take a blood test and therefore no basis upon which you could fail the per se offence.
Again, I oppose this amendment. It’s unnecessary and it would actually put Canadians at risk.
Senator McIntyre: We’re dealing with three levels of evaluation. As we all understand, those evaluations will not be codified. They will be set by regulation. That’s why I think the regulations are very important.
For example, if you have 80 milligrams of alcohol in 100 millilitres of blood, you’re impaired. It’s as simple as that. Here we have three very important levels, 2 nanograms, then 2 to 5 nanograms, and then a mixture of nanograms and alcohol. If we’re not going to codify this, then I think the regulations are very important and that is why I support this amendment. It should be approved by both houses of Parliament, at least that’s my opinion.
We did it for alcohol; why don’t we do it for drugs?
The Chair: Are you ready, honourable senators, to vote? I don’t see any other senators.
All those in favour of the motion or the amendment introduced by Senator Carignan. Would you request a roll call, senator?
Senator Carignan: No.
The Chair: Well, then by a show of hands? Do honourable senators want to vote by a show of hands on the amendment?
Senator Carignan: Sure.
The Chair: All those in favour of the motion introduced by Senator Carignan, please raise your hands.
All those opposed?
[Translation]
Senator Boisvenu: I would like to know where Senator Boniface is.
The Chair: Senator Boniface left. She is being replaced by Senator Pate.
[English]
I have been notified that Senator Pate has replaced Senator Boniface.
All those opposed? All those who abstain?
The amendment is defeated 6 to 5.
There are no further amendments in that group. Shall clauses 1 to 10 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall clauses 11 to 20 carry?
I see there are many amendments to clause 15. On those amendments, I will call on Senator Boisvenu, who is the first one to introduce the various amendments to clause 15. Senator Boisvenu, on clause 15.
[Translation]
Senator Boisvenu: There are actually four amendments being proposed at the request of the main victims’ groups which submitted a brief or appeared before the committee.
The first amendment pertains to clause 15, on page 15. I propose:
That Bill C-46 be amended in clause 15, on page 15, by replacing line 24, with the following:
“(3) Everyone commits the offence of vehicular homicide as a result of impaired driving who commits an of-”.
This amendment is further to a commitment Justin Trudeau made in 2015, when he met with the victims’ group, Families for Justice. It was in connection with Bill C-652. Mr. Trudeau said the following, roughly translated:
As you know, the adoption of Kassandra’s law will mean that the offence of driving while under the influence causing death will from now on be called “vehicular homicide as a result of impairment” and that is exactly what it is: a person who is morally guilty of killing another person.
I propose this amendment to the bill to add the term “vehicular homicide.”
The Chair: Are there any other comments on Senator Boisvenu’s proposal?
Senator Gold: Yes, I have a question, dear colleagues. Can you explain the consequences or implications of this amendment, as to either the sentence or court proceedings?
Senator Boisvenu: As to court proceedings, it does not change much because the Criminal Code currently provides for up to a life sentence, so the wording does not change much. The real change is for victims’ families, because the wording is much more of a deterrent that “driving while impaired causing death.” The concept of homicide is there, so for those people, victims’ families and others, an act of this kind suggests voluntarily consuming drugs or alcohol and committing a criminal act with a vehicle, which they consider a weapon. So the concept of homicide is linked to the voluntary circumstances of committing an act in a state of intoxication, contrary to other kinds of events that could lead to manslaughter or some other type of homicide.
Senator Pratte: Would it be possible to hear from Justice officials?
The Chair: Yes, of course, we could.
[English]
Would Mr. Yost or Ms. Morency or any of the other officers come to the table and identify yourselves?
Joanna Wells, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you. My name is Joanna Wells. I’m counsel with the Criminal Law Policy Section at the Department of Justice.
The Chair: We’re listening to you.
Ms. Wells: If I could just add a few comments that may help the committee in this, the terminology that has been suggested may not necessarily be appropriate for the objectives of the motion. “Homicide” is a quite broad legal term. It includes, in the Criminal Code, murder, manslaughter and infanticide. And “vehicle” may be too narrow as it wouldn’t include all of the other conveyances that are contemplated in the impaired driving regime.
Senator Pratte: Replacing what is in the bill right now and using this kind of language, what practical impact would it have, if any, on the interpretation or whatever?
Ms. Wells: It wouldn’t change the penalty, as was noted, as it’s already punishable by life imprisonment, but it may have the impact of bringing in terminology that doesn’t match, if you will, some of the other terms used in the code.
Senator Pratte: All right.
The Chair: Thank you.
Senator Boisvenu?
[Translation]
Senator Boisvenu: I would like clarification on something, Ms. Wells. You said it would have an impact on other modes of transportation. Could you give us some examples?
[English]
Ms. Wells: It’s more that the amendment proposes “vehicular homicide,” but the offence itself would apply if a vessel was involved or an aircraft or railway equipment. So “vehicle” implies motor vehicle, which is one type of conveyance, but may not be seen as being broad enough or an appropriate term in this context.
[Translation]
Senator Boisvenu: I am trying to follow your reasoning. Do most or nearly all cases of impaired driving involve vehicles travelling on roads, for instance?
[English]
Ms. Wells: They are certainly amongst the most common, but they are not exclusively.
[Translation]
Senator Boisvenu: What impact would that have on other modes of transportation? What about personal watercraft, for instance. If a person is on a waterway while under the influence and hits a swimmer, what impact could that have, strictly in terms of the specific designation for motor vehicles as opposed to a case involving a personal watercraft?
[English]
Ms. Wells: So it’s certainly the fact that impaired driving offences can be applied if an operator is operating a jet ski. It has been determined as a vessel. The point I was trying to make is that the terminology “vehicular homicide” may not be the correct terminology to capture all types of conveyances, which is one of the objectives of Bill C-46 itself — to clarify, clean up and simplify the language used.
[Translation]
Senator Boisvenu: It would have no impact on an offence committed by another type of vehicle, such as a personal watercraft even if, as opposed to a driving offence, it were specially designated, because most people who drive while impaired are driving a vehicle. That would not impact other types of dangerous driving causing death, such as operating a personal watercraft.
[English]
Ms. Wells: It may not have a practical impact on the actual conviction or the sentence.
Senator McIntyre: Thank you, Ms. Wells, for your presentation. As you’ve indicated, homicide includes murder and manslaughter. Manslaughter is the killing of a human being by means of an unlawful act.
Now, we also have impaired driving causing death and criminal negligence causing death. Would vehicular homicide include criminal negligence causing death or impaired driving causing death?
Ms. Wells: Not with respect to this amendment, I wouldn’t think. Criminal negligence causing death is a separate offence that is not captured by the proposed amendment.
Senator McIntyre: So vehicular homicide is somewhat stronger than impaired driving causing death or criminal negligence causing death; would that be so?
Ms. Wells: Well, if it wouldn’t change the penalty, I wouldn’t want to comment on whether or not it would be stronger. The penalty for impaired driving causing death is up to a maximum of life imprisonment, which is the most serious.
Senator McIntyre: That’s not mandatory; that’s up to the judge. The judge has a discretion there. Yes?
Ms. Wells: Yes, that’s correct.
[Translation]
Senator Dupuis: I am trying to understand the weapon argument. If I understand correctly, the proposed amendment would create a new criminal offence in addition to the current one, by using the term “vehicular homicide.”
Senator Boisvenu, you drew a parallel between a car and a weapon. Ms. Wells, how will that interact with other provisions of the Criminal Code that pertain to use of a weapon causing bodily harm or death?
[English]
Ms. Wells: There is nothing in Bill C-46 or in the amendment that speaks to vehicles as weapons.
[Translation]
Senator Dupuis: No. That is why this question was for Senator Boisvenu, because you made the argument during the presentation.
Senator Boisvenu: There is no link with a weapon. We are not creating a new offence, but rather giving it a different name. Right now it is called “driving causing death.”
Senator Dupuis: Yes.
Senator Boisvenu: Essentially, we are saying “vehicular homicide,” so it is a new name, but not a new offence. When I referred to weapons, it is for the families. That is a picture I want to create, Senator Dupuis. When a person consumes alcohol or drugs at a bar, decides to drive, and kills someone, those families consider the car a weapon.
Senator Dupuis: I see. Thank you.
Senator Boisvenu: The offence of “impaired driving causing death” elicits, for these families, the idea of an accident, but they say it is more than that. When an individual chooses to operate a vehicle while impaired, these families feel that it should be viewed as a homicide, a voluntary act. The person consumed alcohol or drugs voluntarily. They got in their vehicle voluntarily and they killed a person. The notion of homicide is in line with other types of crime. I simply referred to a weapon as a metaphor, but there is no connection to the idea of picking up a weapon and killing someone.
Senator Pratte: I understand the idea behind the amendment, but I think that playing with the terminology could prove a bit risky. This isn’t an area I’m familiar with, but, as I understand it, homicide, under the Criminal Code, covers a number of offences, ranging from murder to manslaughter. Those distinctions matter, so using just the word “homicide” denotes all kinds of different acts. I appreciate the high degree of responsibility involved when an individual drives while impaired and causes the death of another person. It isn’t some insignificant act, far from it. There is a huge degree of responsibility involved, but is it comparable to the responsibility attached to an individual who kills someone with the clear intention of committing murder? To me, they’re not the same. The Criminal Code defines the word “homicide” in a number of ways, and those definitions aren’t covered here; your amendment simply refers to “homicide.”
Senator Boisvenu: You’re right; it’s a matter of terminology. The notion of manslaughter, without criminal intent, even referring to an accidental act, is ultimately lower on the criminal scale for victims. The notion of driving while impaired, however, does have a voluntary component. So, yes, use of the word “homicide” does come down to terminology, but that terminology carries a whole lot of meaning for victims and their families.
Senator Pratte: Be that as it may, it’s not the same as murder.
Senator Carignan: No, not at all. Manslaughter is not the same thing as murder, but the amendment refers to “homicide.”
[English]
Senator Pate: I’m not sure if it means something different in French, but homicide can be culpable and non-culpable. It doesn’t necessarily mean what I think you’re intending, Senator Boisvenu, if it’s in English, because homicide doesn’t necessarily mean culpable.
[Translation]
Senator Boisvenu: I realize that, but that’s not my point. The point I’m trying to make is that this is one of the only acts or events where a person is killed and we are afraid to call it “homicide.” Consider another type of event, such as a fight where a person throws a punch that ends up killing someone; there was no criminal intent, but the offence is labelled a homicide. This is one of the only offences where that isn’t the case. When someone kills another person as a result of impaired driving, we don’t dare call it homicide. We prefer to talk about “impaired driving.” When the offence does not refer to homicide, it is as though the act were not as serious from the standpoint of the repeat offender or recalcitrant individual. Yes, perhaps they’re just words, but they carry a lot of meaning for victims and their families.
Senator Dupuis: I’ll put the question to Ms. Wells. Does the Criminal Code include the offence of just homicide?
[English]
Ms. Wells: “Homicide” is defined in the Criminal Code in section 222. It’s a fairly complex provision, as Senator Pate pointed out. It distinguishes between culpable and non-culpable homicide. Culpable homicide includes, as I mentioned, murder, manslaughter and infanticide in that category, which is one of the reasons why the term “homicide” may be considered too broad because it does include all three of those types of culpable homicide.
[Translation]
Senator Dupuis: That’s exactly what I wanted to know. When you say that homicide is either culpable or non culpable, it means that there can’t be just homicide. It has to be culpable or non culpable.
[English]
Ms. Wells: I’m not sure I understand the question specifically. Homicide that is not culpable is not criminal. So to be a criminal offence it has to be a culpable homicide, which includes those three categories.
The Chair: Can you give the section of the Criminal Code?
Ms. Wells: Yes, 222.
[Translation]
Senator Dupuis: Yes, homicide is culpable or non culpable, meaning that it is either voluntary or involuntary. Do I understand that correctly? Essentially, I am trying to understand the amendment before us and how vehicular homicide fits into the broader context. Would it eventually fit in somewhere, or would it need to be characterized as voluntary or involuntary?
[English]
Ms. Wells: With respect to the motion before you, the effect of the amendment would be to change the name of the offence, essentially, to vehicular homicide instead of impaired driving causing death.
[Translation]
Senator Dupuis: I understand that, but that’s not what I’m asking. What I’d like to know is how it will fit into our criminal law system, with respect to the distinction between culpable and non culpable homicide, be it murder or manslaughter. Where will it fit in? Does it fit in somewhere? Does it fit nowhere? My follow-up question has to do with manslaughter committed in the heat of passion. I’m trying to wrap my head around this. In the case of intoxication, is the offence considered a voluntary act of homicide, or is it manslaughter given that the person has somewhat lost the ability to consciously control their behaviour? Regardless, when we are talking about impairment, it could be argued that manslaughter committed in the heat of passion also involves a degree of impairment. The person is not driving, of course, but they have lost control of their behaviour.
[English]
Ms. Wells: I don’t think it’s a question of whether or not it’s involuntary versus a voluntary act with respect to the motion before you. There would not be a substantive change to what the Crown would need to prove the offence of impaired driving causing death. It wouldn’t change the possible penalty once convicted. It would be a unique phrase in the Canadian criminal law, but it wouldn’t necessarily have an impact on the way homicide is interpreted, generally.
The Chair: If I may submit an interpretation and get your reaction, section 222 states:
A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
So the word “homicide” is used in relation to death.
Subsection 2, which is the object of Senator Boisvenu, is in fact not only related to that but refers to causing bodily harm to another person. So if you cause bodily harm to a person, it would be section 221 of the code, because that doesn’t ensue from the bodily harm, while homicide, that is the result.
[Translation]
Senator Carignan: No, without death, there is no homicide.
[English]
The Chair: That’s what is confusing about subsection 2:
[Translation]
“causes bodily harm to another person.” Essentially, then, what proposed subsection 2 is saying is that an individual commits an offence when they cause bodily harm to another person, whereas proposed subsection 3 talks about causing the death of another person. When an individual causes the death of another person, at that point, the offence is normally considered homicide.
[English]
According to sections 221 and 222, there is a distinction between the label of the crime if you cause bodily harm versus if, through your act, you cause death. So proposed subsections (2) and (3) reflect, in fact, 221 and 222, but in subsection (3), we don’t call it a homicide. That’s what the purpose of Senator Boisvenu’s amendment is: to identify subsection (3) as an act equivalent to 222. That’s the way I read the code.
Ms. Wells: I don’t disagree with your interpretation of the code. The impaired driving causing death is a type of homicide.
The Chair: That’s what I think.
Ms. Wells: Yes, but “homicide” as a term includes more than impaired driving causing bodily harm, so one fits better under the other.
The Chair: Of course.
The Chair: I totally agree with your interpretation in relation to that. That’s the intent behind the amendment of Senator Boisvenu.
My other concern is this: Would it thwart the interpretation of the code and other sections where the code refers to homicide — in order to maintain the rationality of the interpretation of the code?
[Translation]
Senator Dupuis: That’s what I wanted to know.
[English]
The Chair: I’m sorry; I didn’t want to upstage you.
[Translation]
Senator Dupuis: That’s exactly what I’m trying to understand.
[English]
The Chair: That’s the other aspect of the question.
Ms. Wells: It could cause confusion in that provision, because it would use a term that would, in a sense, be too broad. Part of the proposed approach of Bill C-46 as a whole, as a bill, is to reduce the confusion that already exists in the impaired driving regime — to clarify, to use simpler terms, to use modern drafting approaches. So it’s possible that this type of amendment could lead to confusion in terminology.
Senator McIntyre: The difference between murder and manslaughter is the mens rea. In first-degree murder, you need the specific intent to kill, and then you need the planning. In second-degree murder, you need a general intent as opposed to a specific intent, or an intent to cause bodily harm knowing it would result in death, and you were reckless, whether death ensued or not. Manslaughter is the killing of a human being by means of an unlawful act. As Senator Boisvenu has stated, if A punches B in the face, and B hits his or her head on a rock and dies, that’s manslaughter.
So as I understand, the offence of vehicular homicide would replace impaired driving causing death; would that be it?
Ms. Wells: That would be the effect of the amendment, to change the name of the offence of causing death, yes. It also would lead to an inconsistent naming protocol as between causing bodily harm and causing death. But yes, I agree, that would be the effect.
Senator McIntyre: But seems to me the words “vehicular homicide” gives it more strength or more force than just “impaired driving causing death.” I find that it’s stronger, maybe not in terms of the penalty, but the definition of the word.
The Chair: But in terms of penalty, it’s the same penalty, as you stated.
Ms. Wells: That is correct.
The Chair: Up to life imprisonment.
Senator Gold: I do understand the significance of it and the significance of it for victims, but I would be reluctant to introduce a change for those reasons that could have an unsettling effect on the interpretation of other provisions of the Criminal Code. I’m persuaded that since it does not actually affect the penalties — since this bill as a whole strengthens protection of Canadians against impaired driving, both alcohol- and drug-impaired driving, I think it is unnecessary to take the chance that we’re introducing language that may have unintended consequences in other areas of the code.
[Translation]
Senator Dupuis: Senator Gold just expressed my main concern, as well. I’m trying to figure out whether the term “vehicular” is what’s causing the problem in the amendment. It is clear that when you kill someone, whether with a car or in some other way, it constitutes homicide. Does adding the term “vehicular” not undermine the system that has been designed for all of — If you are operating an aircraft, do you consider yourself to be operating a motor vehicle?
In other words, I think what we’re worried about is adding a term that could have an impact on the system in place, as Senator Gold pointed out.
Senator Carignan: I suggest that we vote on it, because we have other amendments to deal with.
[English]
The Chair: Are you ready, honourable senators, to go through the vote? So the roll call, please.
[Translation]
Keli Hogan, Clerk of the Committee: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: For.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: For.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: For.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: For.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Against.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Against.
[English]
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: Against.
[Translation]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: For.
[English]
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: Against.
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: Against.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Against.
The Chair: The amendment is negatived.
Senator Boisvenu, would you like to move the next amendment?
Senator Boisvenu: This amendment is something else victims have been calling for. Either this year or last, Quebec saw a number of cases where people were the victims of reckless drivers who were drunk or intoxicated. My amendment is as follows:
That Bill C-46 be amended in clause 15,
(a) on page 19, by replacing line 28 with the following:
“320.21(1) Everyone who commits an offence under sub-”; and
(b) on page 20, by adding the following after line 4:
“(2) A sentence, other than one of life imprisonment, imposed on a person for an offence under any of subsections 320.13(3), 320.14(3), 320.15(3) and 320.16(3) shall be served consecutively to any other punishment imposed on the person, other than a sentence of life imprisonment, for an offence arising out of the same event or series of events and to any other sentence, other than a sentence of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under any of those subsections.”
Essentially, when the offence causes the death of more than one individual, the same principle applicable to multiple homicides would apply, so the sentences would be served consecutively as opposed to concurrently. Currently, in the case of two victims, the minimum sentence is a fine of $1,000, so in the case of multiple victims, that amount would be multiplied by two, three or however many victims there were.
The Chair: Would you like to comment, Senator McIntyre?
[English]
Senator McIntyre: I support Senator Boisvenu’s amendment. I think for this type of offence, which includes alcohol, drugs or a mixture of drugs and alcohol, the sentence should be served consecutively.
I practised law for over 40 years, including criminal law; a good part of my practice was criminal law. I have done a lot of jury trials. I’m not saying this to pontificate, but too many times I found that judges — some judges, not all judges — just can’t put their pants on. I’m sorry to say that. They can’t put their pants on.
Too many sentences are served concurrently. For example, they get X sentence for this, but for the other sentence, they simply serve concurrently. I think for this type of offence, the sentences should be served consecutively.
The Chair: Thank you.
Any other comments, honourable senators?
Senator Pate: This is more specifically for the life sentence. The concurrent parole ineligibility period is due to be considered by the Supreme Court of Canada. The expectation is that it will be struck down as unconstitutional, based on the last time the murder provision was looked at in 2000-something — I can’t remember the year now, but when it was not struck down because of the faint hope clause — and when the multiple parole ineligibility periods were brought in, the faint hope was also abolished. So the likelihood, based on previous cases, is that it would be deemed unconstitutional. It seems to not be a good idea to introduce something in new legislation something that is likely to be deemed unconstitutional.
[Translation]
Senator Boisvenu: That doesn’t apply. We know that, in those cases, the sentence can be life imprisonment. It doesn’t apply to that; it applies to other cases. The Criminal Code already provides judges with the ability to hand down consecutive sentences, not just for lifetime imprisonment, but for other types of sentences.
[English]
The Chair: Questions? Roll call?
[Translation]
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: For.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: For.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: For.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: For.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Against.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Against.
[English]
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: Against.
[Translation]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: For.
[English]
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: Against.
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: No.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Against.
[English]
The Chair: The motion is defeated.
[Translation]
We are now moving on to the next amendment.
Senator Boisvenu: This, too, comes from victims.
The Chair: Clause 15?
Senator Boisvenu: Yes. I’ll start by reading the amendment and, then, I’ll explain my rationale.
I move:
That Bill C-46 be amended in clause 15,
(a) on page 19, by replacing lines 31 and 32 with the following:
“and to a minimum punishment of imprisonment for a term of two years.”; and
(b) on page 20, by deleting lines 1 to 4.
My rationale is based on such court decisions as Comeau, in which the court noted that lenient sentences vary from 18 months to three solid years in similar cases. Furthermore, in 2004, Judge Claude Provost noted that sentences of between 18 months and three years more or less fit the crime. That is my first point, then: judges have taken a stand on the severity of the punishment.
Second, in the case of minimum sentences of two years plus a day, the individual is incarcerated in a federal penitentiary and may be eligible for rehabilitation or support programs. That is never the case in provincial institutions, where no rehabilitation is offered to individuals serving sentences of less than two years. No supports are available to the criminal, making rehabilitation much more difficult.
Third and finally, in the case of vehicular homicide as a result of impaired driving, people are often reluctant to take part in education and awareness programs. A number of provinces, including Quebec, have pushed the government in recent years to tighten up the Criminal Code to provide for harsher sentences. A sentence of two years plus a day gives the individual the opportunity to put their life on pause and participate in a rehabilitation program. Many such programs focus on drug or alcohol addiction.
[English]
Senator McIntyre: Once again I support Senator Boisvenu in his amendment.
We’re dealing here with mandatory minimum sentences. I don’t agree with mandatory minimum sentences in all cases. For example, if someone steals a purse at Kmart, they should not even receive one day in jail — unless he’s been doing it for years, and even then.
In cases of homicide, we have mandatory minimum sentences for first degree, which is life imprisonment. Second degree can vary from at least 10 years to 25 years. For this type of offence, I agree with Senator Boisvenu that two years is not unreasonable. For those reasons, I would support his amendment.
[Translation]
Senator Boisvenu: Currently, the bill sets out a fine of $1,000 for a first offence, imprisonment of 30 days for a second offence, and imprisonment of 60 days for a third offence. Those penalties do not deter criminals. Back when Bill C-73 was put forward, it sought a minimum sentence of six years. Two years plus a day strikes me as a minimum compromise. Victims find it appalling that the minimum sentence for an impaired driver who kills someone is $1,000.
[English]
The Chair: All those in favour of the motion? I think we will have a roll call.
[Translation]
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: For.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: For.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: For.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: For.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Against.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Against.
[English]
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: Against.
[Translation]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: For.
[English]
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: Against.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Against.
The Chair: It’s a tie, so the motion is defeated.
We now move on to another of Senator Boisvenu’s amendments, the last in this series.
Senator Boisvenu: It’s the last one. I appreciate your patience.
I move:
That Bill C-46 be amended in clause 15, on page 20, by replacing lines 15 and 16 with the following:
“(c) a passenger was present in the conveyance operated by the offender;”.
Currently, it is considered an aggravating circumstance if the passenger is under the age of 16. If you look at all victims, or car passengers who are victims, the problem tends to be tied to a young driver and a young passenger.
We do not think it should matter whether the victim was older than 16. In that case, the victim is not considered an aggravating circumstance, as though the life of someone under the age of 16 is worth more than that of someone who is 16 or older. Whether the passenger is 16, 18 or 20 years old, their age should not come into play when the driver of the vehicle they are in has such an accident. Instead, having a passenger in the vehicle should be considered an aggravating circumstance in all cases.
Senator Pratte: I’d like to hear where our Justice officials stand on that.
[English]
The Chair: We would like to hear from you, Mr. Yost.
Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice Canada: The only thing I would say on this is that the thought behind it is that a person who is 16 can pretty well make up their own mind whether they get in the car or not. That was why the age of 16 was picked.
The Chair: Thank you for the explanation.
Any questions for Mr. Yost?
[Translation]
Senator Dupuis: I’d just like to say one thing. Sixteen is the legal age for marriage. At that age, it is assumed that people are aware of the consequences of their actions. It follows, then, that the threshold would be set at 16 years of age. I’m not convinced that this is something we should change.
[English]
The Chair: Any other comments? Question?
[Translation]
Madam Clerk, would you care to do the roll call?
Ms. Hogan: The Honourable Senator Joyal?
Senator Joyal: Abstain.
[English]
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Yes.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: For.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: For.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: For.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Against.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Against.
[English]
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: Against.
[Translation]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: For.
[English]
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: No.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Against.
[English]
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: Against.
The Chair: The motion is defeated.
[Translation]
The next amendment is from Senator Carignan.
Senator Carignan: I move:
That Bill C-46 be amended in clause 15, on page 24, by adding the following after line 27:
“(3) A peace officer may, in the course of a lawful exercise under an Act of Parliament, an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a vessel, an aircraft, any railway equipment, a bus, a heavy-load truck or a taxi cab to immediately provide the following samples that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved device or the approved equipment and to accompany the peace officer for that purpose:
(a) samples of breath, if the peace officer has in his or her possession an approved screening device; and
(b) samples of a bodily substance, if the peace officer has in his or her possession the approved drug screening equipment.”.
We are adding random testing for drugs and alcohol for the other modes of transportation, hence, anywhere public transportation is concerned.
[English]
Senator McIntyre: I support Senator Carignan’s amendment for the following reason. Colleagues, witnesses in support of this argument testified before the Standing Senate Committee on Legal and Constitutional Affairs. We all recall FETCO and what they had to say about safety in workplaces, the Transportation Safety Board of Canada and the Toronto Transit Commission. I think it was very clear. To me, this is an excellent amendment.
Senator Gold: I’d like to hear comments from Justice Canada as to why the bill stops short of including this.
I do recall that we heard the testimony, as Senator McIntyre correctly points out, but I recall as well that they were indifferent as to whether or not we amended Bill C-46. What they were looking for was some provision, perhaps in any act, transport or other acts, asking for mandatory testing. Some of them were quite clear that they were actually not commenting on Bill C-46 at all. I’d like to hear from Justice Canada.
Mr. Yost: The effect of this, of course, would be to extend random drug testing to certain motor vehicles. I’m not at all sure with respect to other conveyances if a lawful authority exists to stop someone for a motor vehicle. If the police officer were investigating some kind of an offence, then there would be a lawful exercise with powers with respect to those other forms of conveyance and they would be able to demand that.
With respect to making the demand for buses, heavy load trucks or taxi cabs, they’re already covered under the mandatory alcohol screening that is proposed for motor vehicles. Those are distinctions that I see immediately when I look upon it.
Let’s step back for a second. Mandatory alcohol screening, as you know, is justified by the government on the basis of its remarkable success in other countries. We are not aware of programs like this and what effects that might have had in other countries in reducing accidents and other such unfortunate events.
[Translation]
Senator Carignan: If the deterrent effect works for alcohol, is there not a strong chance that it will work for cannabis as well?
Mr. Yost: We could assume so. However, roadside testing is very new. We do not have any of the research findings that exist for random alcohol tests in other countries.
The Chair: Senator Pratte?
Senator Pratte: I would like to return to certain points a little later, please.
[English]
The Chair: Are there any other comments for Mr. Yost before I release him?
Question? All those in favour of the motion?
Could you make the roll call?
[Translation]
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Yes.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: For.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: For.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: For.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Against.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Against.
[English]
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: Against.
[Translation]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: For.
[English]
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: Against.
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: Against.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Against.
[English]
Ms. Hogan: Yeas, 5; nays, 6; abstentions, 1.
The Chair: The motion is defeated.
The next one will be introduced by Senator Batters.
Senator Batters: Thank you very much.
I move:
That Bill C-46 be amended in clause 15,
(a) on page 23, by replacing line 35 with the following:
“320.27 If a peace officer has reasonable grounds to”;
(b) on page 24, by deleting lines 18 to 27; and
(c) on page 34, by replacing line 18 with the following:
“conducted under paragraph 320.27(a); and”.
The effect of the first part of that clause is to simply change the numbering so that it’s correct, and the remaining parts of it are to essentially remove random alcohol testing for everyone provision.
In weeks of study at this committee, we’ve seen a mountain of evidence, supplemented today by Professor Stuart, who has significant criminal law background dealing with the Charter, that this random testing provision is highly likely to violate the Charter and to be found unconstitutional.
We also heard a lot of testimony that the huge number of court challenges that will occur will exacerbate Canada’s court delay crisis. This very committee conducted an excellent, comprehensive 18-month study on criminal court delays in Canada. We saw that a glut of impaired driving cases has been a major cause of the court delay crisis. This crisis has already led to first-degree murderers, those charged with serious sexual assault, serious child assault, having their criminal charges dismissed in the last 18 months.
This is the Legal and Constitutional Affairs Committee. It’s our duty to provide sober second thought, particularly on these types of constitutional issues. I know we don’t want to see many more serious criminal charges like murder, sexual assault and serious child abuse cases dismissed because of the massive amount of Charter challenges brought because of the random alcohol testing provisions in this bill.
We’ve had defence lawyers with lengthy careers in this field tell us that these provisions would lead to a decade of Charter challenge litigation. They called it Christmas. Senator Jaffer actually described the situation, when questioning a witness here recently, and said if she were still a defence lawyer, she would have a field day with this.
In addition, several witnesses have cautioned this committee that these random alcohol testing provisions for everyone could lead to a significant level of racial profiling, which would be highly concerning.
For these reasons, I think that it would be prudent for this committee to remove these provisions from the bill.
The Chair: Thank you, senator.
Senator Gold: I respectfully disagree. I think the government has made a policy choice in the interests of reducing the harm caused by drunk driving. They’ve based that upon the experience in other countries and importantly on the relative failure of our current law to detect, deter and minimize the harm caused to Canadians by drivers who take the wheel after drinking.
Canadians still, unfortunately, suffer disproportionately at the hands of drunk drivers, notwithstanding all the publicity campaigns to date. It is true that we heard a lot of testimony from lawyers and law professors about the infringements of the Charter that random mandatory testing necessarily entails, but we also had evidence to the contrary from eminent scholars in their own right who believe, as the government does, that mandatory alcohol testing is justified under the Charter of Rights and Freedoms.
I think we’ve done our duty as a committee in hearing this evidence, and I’m satisfied that it has been sufficiently established that there is a credible constitutional foundation for this legislation for us to proceed. I think it would be irresponsible for us to pick and choose among different experts in order to refuse to pass this important piece of legislation. So I oppose this amendment.
[Translation]
Senator Boisvenu: When I talk to people on the street, and I hear that we will be doing random tests, is that what we are talking about?
Senator Gold: Yes.
Senator Boisvenu: We do it for alcohol, but we will not do it for drugs. Can you explain your logic to me?
[English]
Senator Gold: I think what we’re debating right now is whether to remove mandatory testing for alcohol. If we have an amendment before us to consider on drug testing, I’d be happy to discuss it, but my argument is simply with regard to the bill as it is and that mandatory testing will survive court challenge, though challenges there will be, as there have been every time we change the law. I’m satisfied that we have sufficient evidence to proceed to pass the bill without this amendment.
[Translation]
Senator Boisvenu: Does this mean that, for example, at third reading, you would agree that we introduce an amendment to make it possible to do the same tests for drugs?
[English]
Senator Gold: Unlike perhaps other groups in the Senate, we don’t actually tell each other how to vote. We’ve taken the position, and I’m pleased to see that you have as well, that we’ve submitted our amendments here for consideration by the committee. I can’t speak to what other colleagues, whether your caucus, the independent Liberals or others, might do at third reading.
[Translation]
Senator Boisvenu: So, explain to me the logic of doing random tests for alcohol, but not for marijuana. I simply want you to explain the logic to me.
[English]
Senator Gold: I really do think it takes us beyond the discussion of the amendment before us, senator. I’m sure we’ll have opportunity to discuss that.
The government’s position, as it has been provided to us, is that they wanted to take a prudent first step with regard to the introduction of the drug-testing regime. We all know and have heard that there are differences in terms of the way in which we can predict the impact of cannabis consumption and other drug consumption on driving capacity as compared with alcohol.
So I think that there is at least a rational basis for proceeding with regard to the new drug offences as compared with alcohol, with which we have a great deal of experience.
But again, we’re dealing with a particular amendment that I would not support.
Senator Batters: As we heard Professor Stuart say today, other countries the federal government is relying on don’t have a Charter of Rights and Freedoms. That’s a significant distinction. We also heard Professor Stuart say today that in 35 years of Charter litigation, since 1982, the Supreme Court of Canada has never justified a section 8 Charter violation as being saved by section 1, which is Professor Hogg’s entire analysis.
The Chair: Thank you.
Are we ready to go to a vote? Roll call, please.
[Translation]
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: For.
[English]
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: For.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: For.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: For.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: For.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Against.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Against.
[English]
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: Against.
[Translation]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: For.
[English]
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: Abstain.
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: Against.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Against.
[English]
Ms. Hogan: Yeas, 6; nays, 5; 1 abstention.
The Chair: The amendment is adopted.
Next amendment, Senator Gold.
Senator Gold, I call on you because the amendment was by Senator Boniface and the chair has been informed that you would be introducing the amendment. I’m not trying to take you by surprise.
Senator Gold: No, you didn’t take me by surprise. Please give me a moment to gather my papers.
My amendment refers to clause 15, at page 29. I move:
That Bill C-46 be amended in clause 15, on page 29,
(a) by replacing line 27 with the following:
“son’s blood alcohol concentration was equal to or exceeded 20 milligrams of alco-”; and
(b) by replacing line 29 with the following:
“centration within those two hours is conclusively presumed to be the concentra-”.
For the viewers watching, I will try to explain this torture of the English language. The proposed amendment will do two things. First, it would make the language of the provision consistent with language in other parts of the bill, effectively changing the phrase “exceeds 20 milligrams of alcohol” to “equal to or exceeds 20 milligrams of alcohol.” This would amend wording inserted into the bill by the Standing Committee on Justice and Human Rights in the House of Commons, but it would not have an impact on the objective of their amendment, which was simply to make it clear.
Second, it would also better link the presumption of blood-alcohol concentrations with the time frame of the offence. In practical terms, this would make the intent of the section clear and would likely reduce litigation.
The Chair: Are there any questions or comments in relation to that amendment?
Mr. Yost, you might be the inspiration for streamlining the bill and making sure it remains coherent with the amendments adopted in the other place.
Mr. Yost: I don’t have much to add to what Senator Gold said.
[Translation]
The clause in question uses the word “exceeds.” When we talk about impaired driving, we are referring to blood alcohol concentration that is equal to or that exceeds. Since using “exceeding” would actually round it down, we set the level at 30 and not 20. The goal is to use the same wording, while considering the fact that we are rounding down the blood alcohol concentration.
Second, the provinces have suggested that there be a link, which we believe to be clear enough, for the enforcement of paragraphs 314 (a) and (b), which mention blood alcohol concentration within two hours. We wanted to use the same wording. It is presumed to be blood alcohol concentration within the two hours that are part of the infraction in paragraph 314 (1)(b). It is to make this point absolutely clear, and to avoid contrary arguments being made before the courts for any reason whatsoever. Those are the two reasons.
Senator Craignan: Do you agree with this amendment?
Mr. Yost: The government would agree with it.
Senator Carignan: The government does agree with it.
Mr. Yost: I have no personal position.
Senator Carignan: No, but you seem to know this amendment well.
Mr. Yost: Yes.
Senator Carignan: We are asking the right person.
Mr. Yost: The provinces said it. We regularly discuss the legislation with the provinces.
[English]
Senator Batters: I have a question for Senator Gold. I see that this amendment was to be brought by Senator Boniface. Given that she is the sponsor of the bill, I assume that this particular amendment has the blessing of the government. Do you happen to know?
Senator Gold: I honestly don’t know. She had hoped that she would be here to present all these things. I actually don’t know what lies behind them. I know that she has explained them to me and to our colleagues as consistent with the objectives of the bill and addressing some problems that were identified in the course of the study, or in the course of her review. I’m afraid I just don’t know what —
Senator Batters: Do the officials happen to know?
Mr. Yost: As I said, some concerns with this section were brought to the attention of the Department of Justice. We in the Department of Justice consider that their objections are well founded and this would meet their objections. I suspect that would be the position of the government, but I’m not here as the government spokesman.
[Translation]
Senator McIntyre: If my understanding is correct, Mr. Yost, Senator Gold’s amendment serves to clarify the legislation. Am I correct?
Mr. Yost: Yes, senator, you are. It is a clarification.
Senator McIntyre: Thank you, Mr. Yost.
[English]
The Chair: Any other questions? Are we ready to go to the vote? All those in favour of the amendments? Could the clerk do the role call?
[Translation]
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: Honourable Senator Batters?
Senator Batters: For.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: For.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: For.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Yes.
[English]
Ms. Hogan: Honourable Senator Omidvar?
Senator Omidvar: Yes.
[Translation]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: Yes.
[English]
Ms. Hogan: Honourable Senator Munson?
Senator Munson: Yes.
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: Yes.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: Yes.
[English]
Ms. Hogan: Yeas, 11; abstentions, 1.
Senator Joyal: The motion is carried.
The next amendment is also introduced by Senator Gold on behalf of Senator Boniface.
Senator Gold: Thank you, chair. I move:
That Bill C-46 be amended in clause 15, on page 30, by replacing line 30 with the following:
“mand made under section 320.27 or 320.28.”.
The Chair: Explanation?
Senator Gold: Yes, of course.
Bill C-46 as currently drafted provides that statements made by drivers to the police, statements that are compelled under provincial highway traffic legislation, are admissible into evidence for the purpose of justifying a roadside breath demand on an approved screening device. This amendment would clarify and provide that such statements that are compelled under provincial highway traffic legislation are admissible not only for an ASD demand — an approved screening device demand — but also for an approved instrument demand. This makes this provision more useful to both police and prosecutors in detecting and pursuing impaired drivers.
The Chair: I see that Mr. Yost will be called back to the table.
Senator Gold: Make yourself comfortable.
Mr. Yost: Again this is an issue, senators, that was drawn to the attention of the Department of Justice. The section as written refers to the approved screening device demand which was an issue in a case in the Ontario Court of Appeal called R. v. Soules. The section was narrowly drawn to respond to that, but there are other demands. The person may be so drunk that the officer does not need an approved screening device to make a demand to take him to the station. There may also be circumstances where there is the possibility of an argument that while you are justified for the approved screening demand here, and that formed your grounds to make the approved instrument demand, but where is your evidence that he was the driver for the approved instrument demand? You’re trying to base it on the ASD. To close that down and make it clear that where a person is required by provincial law to report generally in an accident situation, the admission that they were the driver is sufficient for the officer to continue the investigation and to make both demands, the approved screening device demand and the approved instrument demand.
[Translation]
Senator Carignan: Have we seen this anywhere in the committee evidence? Has anyone raised this problem?
[English]
Senator Gold: I frankly don’t know, Senator Carignan. I can’t tell you that it was. But it does strike me as very much within the scope of the bill.
Again, our approach — and I think it’s shared — is to give us the opportunity to review amendments in this place, given that we have been studying the bill quite seriously for some months.
The Chair: If I may ask a question of Mr. Yost, this clarification doesn’t come from an amendment that was introduced in the other place, and would compel to add clarification because of its impact on the bill or that section?
Mr. Yost: No, there was no such amendment brought in the other house — unfortunately, perhaps.
The Chair: So it comes essentially from the department?
Mr. Yost: Yes. I just received a note which I was looking for. It is in the presentation that was made to you by the Canadian Association of Crown Counsel, by Mr. James Pelangio. It was one of the recommendations for amendment in that presentation.
The Chair: Well, that answers Senator Carignan’s question.
Any other comments or questions in relation to that amendment, honourable senators? Ready for the vote? Could the clerk call the roll call?
[Translation]
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: Honourable Senator Batters.
Senator Batters: For.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Let us continue to collaborate. I am for.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: Abstain.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: For.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: For.
[English]
Ms. Hogan: Honourable Senator Omidvar.
Senator Omidvar: Yes.
Ms. Hogan: Honourable Senator McIntyre?
Senator McIntyre: For.
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: For.
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: For.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: For.
[English]
Ms. Hogan: Yeas, 9; abstentions, 3.
Senator Joyal: The motion is carried.
Senator Gold on behalf of Senator Boisvenu for the next amendment.
Senator Gold: Thank you, chair. I move:
That Bill C-46 be amended in clause 15, on page 32, by replacing line 19 with the following:
“(c) Any error or exception messages produced by the approved instru-”.
The Chair: Is that a hyphen?
Senator Gold: Yes, of course.
Essentially, the effect of this amendment would be that only error or exception messages from an approved instrument would be required to be disclosed.
The issue here is to clarify what must be disclosed to the defence in the course of a trial for impaired driving with regard to proving blood alcohol concentrations through breath samples. This provides that the materials necessary to make sure that the machine is accurate and the blood alcohol concentration readings are provided.
Currently, the bill would require the Crown to disclose all messages from the approved instrument, some of which may be irrelevant. For example, it would require the Crown to disclose a message such as “waiting,” or “processing” — the kind of warm-up messages we see when we have these kinds of devices — when the intent was only to disclose those messages that indicated an error or exception had occurred.
This is an amendment recommended by the Alcohol Test Committee, which is the scientific adviser to the government on alcohol breath testing. It is reflected in their position paper entitled “Documentation Required for Assessing the Accuracy and Reliability of Approved Instrument Breath Alcohol Test Results.”
This would provide relevant information to the defence and would eliminate some of the delay and unnecessary demands that sometimes plague proceedings in this area. It would avoid unnecessary litigation.
Senator Batters: Without hearing anything further yet from Mr. Yost on this, I think that making this particular change could actually be problematic because, right now, it’s providing, as disclosure to the accused, all messages produced by that approved instrument at the time samples were taken. This would limit it to simply error or exception messages produced by that approved instrument. Sometimes I know, acting as defence counsel, you could have messages that — basically we would be allowing the government to determine what is relevant and what is necessary for the accused to see. I think, in the interest of full and fair disclosure for the accused, that all messages should be produced as disclosure. It may well produce a situation where an accused’s counsel might find that certain messages that were deemed not necessary to be produced to the accused might actually be helpful for them in the course of their defence.
The Chair: Mr. Yost, could you explain the origin of this amendment?
Mr. Yost: Yes, certainly, I can.
I think you’re all aware that there have been disclosure wars ever since 2008, in which we were limiting the so-called “two-beer defence.” The Alcohol Test Committee put out a position paper on what was required. Straight mistake perhaps; in an attempt to simplify language, they had put “error or exception messages” right in their document. We shortened that to “any messages.”
Error and exception messages are important, and they appear on the printout of the approved instruments. We also delisted a whole bunch of approved instruments so that only those that produce printouts of the relevant information are now approved.
The other messages will be flashed on the machine. Somebody would have to record the kind of messages that Senator Gold referred to.
I would point out that the section does allow the accused to apply for more disclosure if they can show some possibility of its relevance. I would find it strange if they could find relevance from the machine saying, “Ready.” But this was recommended by the Alcohol Test Committee and also by the Canadian Association of Crown Counsel. It should reduce unnecessary litigation.
[Translation]
Senator Carignan: Was it said here, before this committee?
[English]
Mr. Yost: I would have to check the wording used by the chair of the Alcohol Test Committee. It was certainly in their brief, and it was in the brief of the Canadian Association of Crown Counsel.
[Translation]
Senator Carignan: I’m under the impression that Justice Canada is modifying or curtailing communication of its own evidence. We have never heard that from anyone. We are trying to produce a report that sticks to the evidence. However, we are being presented with amendments from the government on things that we have not heard about and that limit disclosure of evidence to the accused. This makes me uneasy. These amendments come from the government. It’s all well and good to say that there are independent senators on the other side, but that is another story. If the minister wants to suggest amendments, she can come explain them to us herself.
[English]
Senator Batters: I also wanted to bring up a point that an earlier comment made me recall. We heard from defence counsel that those types of “we want more disclosure” applications are going to be routinely made by defence counsel. If there is a desire to prevent those types of applications, we have already heard from defence counsel saying that they’re going to be making them routinely. So this is not going to limit those types of applications.
Senator Gold: To repeat, this amendment was brought forward by the sponsor of the bill. It is supported by the recommendations of the committee. We had that evidence before us, and, of course, we’ve had all kinds of evidence and concern expressed about the impact of these new provisions on court congestion, court delay. This happens to go in the direction of facilitating proof and eliminating unnecessary delay.
I won’t comment on the other references to independence.
[Translation]
Senator McIntyre: Here, we are talking about a disclosure situation where the prosecution has to disclose information to the accused, which they must provide. Is this correct?
Mr. Yost: That is correct, senator. This is information that, according to the Alcohol Test Committee, is scientifically required to determine the validity of a test.
Senator McIntyre: This is not an obligation on the part of the accused, but rather an obligation on the part of the prosecution.
Mr. Yost: It is an obligation on the part of the prosecution.
[English]
The Chair: Mr. Yost, would that amendment have any implication on the disclosure of manuals and maintenance records and other documents related to the maintenance of the approved instruments, and would it be part, in fact, of the two decisions in front of the Supreme Court? You know those decisions. You know the Kevin Patrick Gubbins and Darren John Chip Vallentgoed decisions?
Mr. Yost: I’m well aware of those cases that have been argued in front of the Supreme Court of Canada.
The legislation sets out what is considered scientifically relevant by the Alcohol Test Committee. It leaves it open for the accused to apply for more if they can find some way to make it relevant. If the Supreme Court of Canada were to find that maintenance records were relevant, then presumably they could make that application.
The intent of this is to have the hearings deal with scientifically relevant issues and not with whether a machine was sent for maintenance five years ago and we’re missing a piece of paper as to the results of that.
As you know, we have conclusive proof of BAC if certain conditions are met — the two tests, 15 minutes apart, within 20 milligrams of each other, each of which has been preceded by an air blank and a calibration check that are within the parameters prescribed by the Alcohol Test Committee. So the person making the application would not only have to try to surmount the scientific opinion of the Alcohol Test Committee, which has been advising the Government of Canada for 50 years on all of these issues, they’d also have to face the issue that we have already set out what is conclusive proof. These items are sufficient to establish that the conditions set out for a valid test have been met or have not been met. One assumes that they have not been met, that the case has collapsed and that there won’t be any disclosure of any kind.
The Chair: Suppose that the Supreme Court, in the months ahead, because I think they have heard the parties on those two cases, accepts the position presented by the two petitioners. Would it mean that the bill would need to be amended, or would those sections survive as is, even though the Supreme Court would have confirmed the rights of the defendant to challenge the propriety of the proof?
Mr. Yost: The section is not proscriptive, saying this is the only possible disclosure. If the Supreme Court were to make the decision to which you refer, presumably the police departments and the Crown would begin to disclose the things that the Supreme Court said were relevant in addition to these materials. So I do not see that there’d be any need to amend the legislation.
The Chair: Okay. I think it’s important that you put that on the record for, of course, the very survival of those sections of the bill because the court might come down with a decision anytime before the end this year in relation to those cases.
[Translation]
Senator Boisvenu: Mr. Yost, most of the amendments we introduced came from testimony we heard, in all of the Senate’s independence.
Was this amendment introduced by the government?
[English]
Mr. Yost: We are again in the position I was a little bit earlier. It was brought to the attention not only of the government but also this committee, and the evidence of the chair of the Alcohol Test Committee, that this was at that problem. You can assume that when this kind of thing happens, there is an analysis done within the government, and the sponsor of the bill was preparing to bring in an amendment, which clearly we, as officials, considered to be appropriate. I can’t speak for the minister.
[Translation]
Senator Boisvenu: Mr. Chair, I want to ensure that we establish a link between this amendment and the testimony we received with the wording, please.
[English]
The Chair: I read it, Senator Boisvenu, in the brief that Mr. Yost is referring to. I quote in French:
[Translation]
And it is not material to the science. If we can substitute part of the wording by “exception or error messages,” that would be helpful from a scientific point of view, at least from an Alcohol Test Committee point of view.
[English]
I bet, Mr. Yost, that’s what you’re referring to.
Mr. Yost: I have the English version here, but that is what I was referring to. It would likely save a lot of litigation in which toxicologists would have to appear.
[Translation]
Senator Carignan: How would it be useful from a scientific point of view?
Mr. Yost: It is useful from a scientific point of view, because there are scientific data, the error and exception messages, that, in the opinion of the Alcohol Test Committee, could have a certain impact on the reliability of the tests. It is important that the accused receive all the information to determine whether the results are reliable. With error messages, it is often necessary to redo the whole procedure, and to do something to make the test valid. Normally, qualified technicians must be available to appear as witnesses to explain the effect of the message, and what they did to modify the procedure. This is not applicable for the other messages.
Senator Carignan: I do not wish to contradict you. You probably drafted the bill. However, paragraph (c) mentions “any messages produced by the . . . instrument.” If we are talking about “messages,” that includes the error messages and other messages that could be appropriate from a scientific point of view. I imagine that is why you wrote “any messages produced,” and not “the errors,” when you drafted it.
Mr. Yost: Bill C-226 said that a test was reliable if the person complied with the measures proposed by the Alcohol Test Committee; the bill directly referred to the committee’s document. The committee was not too happy about that. It does not legislate, and does not prepare documents to be added to the Criminal Code. It does it from a scientific point of view. Therefore, it asked that this be amended in Bill C-226. When the government decided to move forward with its own legislation, we made quick amendments to some parts of Bill C-226. I will admit that we oversimplified it by only writing “messages.” We should have taken the words directly from the document. That way, there would not have been a problem.
The Alcohol Test Committee believes that it can only speak to the scientific aspect. Only these error and exception messages have scientific value.
[English]
The Chair: Any other questions? Shall we vote?
[Translation]
Could the clerk record the vote, please?
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Against.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Against.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: Against.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: Against.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: For.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: For.
[English]
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: For.
[Translation]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: For.
[English]
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: For.
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: For.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: For.
[English]
Ms. Hogan: Yeas, 7; nays, 4; abstentions, 1.
The Chair: Amendment carried.
[Translation]
Senator Carignan, please introduce your next amendment.
Senator Carignan: It is no longer necessary, because it is the counterpart to the first amendment I introduced. It is for Part 2, so, it would not be logical to introduce it.
[English]
The Chair: Then we will go back.
Shall clauses 11 to 20 carry as amended?
Senator Batters: On division.
The Chair: Shall clause 15 carry as amended?
Senator Batters: On division.
The Chair: On division.
Shall clauses 11 to 20 carry?
Senator Batters: On division.
The Chair: Shall clauses 21 to 30 carry?
Senator Batters: On division.
The Chair: Shall clauses 31 to 40 — I have an amendment on clause 38. I think it is introduced by Senator Pratte.
[Translation]
Senator Pratte, would you introduce the amendment, please?
[English]
Senator Pratte: I move:
That Bill C-46 be amended in clause 31.1, on page 41, by replacing line 14 with the following:
“ed this act, including an evaluation of whether their implementation and operation have resulted in differential treatment of any particular group based on the prohibited ground of discrimination. The Minister of Justice and Attorney General of Canada must prepare a report setting out”.
We have discussed at length in the committee the risks of profiling on different prohibited grounds that would mainly be the possible result of mandatory testing. Not only that, we have discussed the fact that profiling exists as of now and could be increased by different provisions of the bill as is.
The goal of this amendment is to make sure that the three-year review includes an evaluation of whether there has been profiling, or there will have been profiling, and that the government makes sure that it reports on any kind of profiling that would have taken place because of any provisions of the bill.
We asked representatives of the government and of police forces whether they would try to measure whether they would do profiling. They have all said no because, “We don’t do any profiling. We respect the Charter.” I think those responses are not satisfactory, so we want to make sure that there is a process so that we know three years from now, we’ll have answers to whether there has been any profiling or not. That is the purpose of the amendment.
[Translation]
Senator Carignan: Mr. Yost, perhaps?
[English]
The Chair: Mr. Yost, if you want to come back.
Mr. Yost: I’m not sure I wanted to come back.
The Chair: You’re a reluctant witness.
Mr. Yost: Yes, everyone is aware of the racial profiling issue. No one is discounting its importance. However, I should advise that we know that there is a three-year review. I’ve been involved in three meetings with Statistics Canada already with respect to what we could put together for that review, and the issue of racial profiling is raised with them.
The section calls for robust data sets. There are no data sets to establish a baseline in order to determine what effect this may have. It would certainly require the cooperation of the courts and the police, and a particular problem is that no records are kept necessarily of stops that do not lead to any criminal consequences. So if the person is stopped and let on his way, has blown into the ASD, this would be completely dependent upon the cooperation of the police forces to provide racial data. And I think you’re all aware that the police forces have expressed great reluctance to do so.
If the amendment were passed, we would do our best as officials to try to produce some data. I wouldn’t want to be taken as promising that we would be able to produce anything that would be very convincing.
Senator Batters: Mr. Yost, do you happen to know if official statistics are kept on these types of stops, on what race the people are who are stopped?
Mr. Yost: To my knowledge and the knowledge of Statistics Canada, no such statistics are kept.
Senator Batters: Thank you.
Senator Gold: I think the language of this amendment would leave open to the government, taking due account of the lack of baseline data and all the reasons that you’ve heard, to devise some way in which to evaluate, as best you could, whether or not a problem in fact appeared to be present in terms of differential impact, differential treatment. It doesn’t presuppose a national study. It might very well simply require the cooperation of two different police forces to conduct some study.
At least it would keep the issue front and centre, not only in the mind of government, which let’s assume it is, but also provide an opportunity for us as parliamentarians to revisit that issue when the review period comes around.
I think that was the idea. It is not prescriptive in any design sense but is nonetheless — we heard so much testimony about concerns and Senator Pratte probably explained it better than I — helpful, and I would support it for that reason.
[Translation]
Senator Dupuis: Mr. Yost, am I mistaken, or could the Department of Justice, in the evaluation proposed by this amendment, count on the data currently available from the Canadian Human Rights Commission, for example, the data on the number of complaints filed with other provincial human rights commissions?
If you call Quebec’s provincial commission, you will get a pile of data on the number of racial profiling complaints filed. In other words, in the federal-provincial dialogue on the administration of justice, this could be the kind of thing that could be summarized. We could even use the work prepared by the Ottawa police, whom we heard from here in this committee. They ran a pilot project on this issue with quite conclusive results.
So, we can imagine that, if this is the starting point for comparison, we could see how it evolves in the years to come, using data that have already been gathered by other public organizations, such as human rights commissions.
Mr. Yost: We may possibly find other sources of information. It is interesting that you voted to remove mandatory testing, which caused all of these comments and attacks on this proposal, from the bill. We could see, I suppose, as the Ottawa police did on present-day arrests, but it would not be an effect of this bill.
Senator Carignan: That was kind of my point, in the sense that we removed random testing, so, clearly, it can certainly lower the relevance of this report. However, I will admit that it is still good to have these reports so that we can keep monitoring this type of discrimination.
What bothers me is Senator Gold’s comment, when he said that they would not necessarily be required to do it. They could write a report, but not necessarily with the data they have. They are not required to generate any.
Senator Gold: All I wanted to say was that we do not specify a given type of study. We leave it up to the government, given that it has the means, and all the resources and challenges. That is all I wanted to say. It remains possible in the way the government does its evaluations.
Senator Carignan: Senator Pratte, is this enough of a commitment for you? When I listen to Senator Gold, it is as if we are leaving the door open for the government to produce an insignificant report, or should I say, an irrelevant one.
Senator Pratte: The report must include ―
The Chair: Senator Carignan, you know how to choose your words.
Senator Carignan: I meant to say an irrelevant report. When the minister writes a report, we want it to be substantial enough so that we may draw conclusions from it. That is what you wanted to say, I assume?
Senator Pratte: Indeed. I think that the text of the recommendation says that the report must include an evaluation of how any group of people are treated differently based on a prohibited ground of discrimination. So, it seems to me that this is enough of a commitment. Mr. Yost said that the police are hesitating, and this hesitation is precisely why we feel the need to include this aspect in the evaluation. We know that nobody wants to measure it, but the Ottawa police showed that it could be measured.
Senator Carignan: Also, we know there are reports from the United States.
Senator Pratte: Absolutely.
The Chair: Thank you, Mr. Yost.
[English]
Ready for the question, honourable senators? Roll call, please.
[Translation]
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Against.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Against.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: For.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: Against.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: For.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: For.
[English]
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: Yes.
[Translation]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: For.
[English]
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: For.
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: For.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: For.
[English]
Ms. Hogan: Yeas, 8; nays, 3; abstention, 1.
The Chair: Amendment carried.
The next amendment is suggested by Senator Boniface. I expect Senator Gold to introduce it. I think it’s on clause 38, page 43.
Senator Gold: Thank you, chair. I move:
That Bill C-46 be amended in clause 38, on page 43, by replacing line 34 with the following:
“320.4(b)(ii) and paragraph 320.4(c) of the Criminal Code as enacted by”.
Permit me to explain.
This amendment would ensure that all analysts who are currently designated under the Criminal Code would continue to be so designated once the new part comes into force. It’s basically part of a transitional provision that aims to ensure the analysts, that is, the forensic scientists who are currently designated under the existing Criminal Code impaired driving framework, will continue to be so designated under the proposed new framework.
As currently drafted, there was a missing cross-reference to a subset of analysts, those who currently certify that an alcohol standard is suitable for use with an approved instrument. This missing cross-reference would result in the unfortunate consequence that this subset of analysts would not be captured by the transition provision and, unless amended, the Attorneys General would have to redesignate these analysts at significant administrative burden and this could in turn lead to unnecessary litigation.
Simply put, this would ensure that all analysts currently designated would continue to be so designated when the new part comes into force.
The Chair: Mr. Yost. This is the last one, to give you some strength.
[Translation]
Senator Carignan: We have so much faith in you.
[English]
Mr. Yost: The current Criminal Code is a little loose in its use of the word “analyst.” There are two types of analysts. There are those who tell you, “This is the blood alcohol concentration or the amount of drugs we found.” There are also analysts who are designated by the three forensic laboratories to carry out the random sampling of batches of standard alcohol solutions. It’s beyond me, the logarithms and all the rest of it, to be certain if you’ve taken out this number of a batch of 1,000 you can be confident in it. This is a subset of analysts.
We are more precise in this bill in saying what kind of analysts can be designated, and we missed the fact that we have to redesignate. We wouldn’t want to go through the process of having everyone redesignated, if we can avoid it, by just making this amendment. It would simplify the administration and transition into this act.
The Chair: This is an amendment introduced by the Department of Justice?
Mr. Yost: It’s an amendment introduced by the senator sponsoring the bill, which the Department of Justice and the Alcohol Test Committee are all in favour of.
The Chair: It’s important that it’s the minutes of the committee if anyone wants to know the origin of the amendment and the context into which the amendment is introduced.
Senator Batters: I’m finding this very unusual for the government bill sponsor to bring four not insignificant amendments at the Senate committee stage. I can’t remember a time where I have seen that in five years of being on this Legal Committee.
Mr. Yost, you’ve been with the Department of Justice for quite some time. I just haven’t seen this sort of thing transpire prior to this.
Mr. Yost: Well, this is a complete rewriting of the impaired driving legislation. We’ve had several runs at it. Bill C-73 was tabled by the previous government and a number of changes were made that appeared in this bill as a result of comments. But this bill is being studied by prosecutors in great detail, and they keep finding things that we have missed. That’s all I can say about it. It may be unprecedented, but still the amendment would be helpful.
Senator Batters: You would agree it’s unprecedented in your time? You can’t recall another time that this has happened, can you?
Mr. Yost: No. The last time we did major amendments on impaired driving was in 2008. I don’t remember amendments being made in the Senate. I may be wrong on that. I just don’t recall it.
Senator Batters: Thank you.
[Translation]
Senator Carignan: Since it was not there initially, and that you are asking to redesignate it automatically, is there not some kind of training that should have automatically been given after passing the first part, which is why we did not include it?
Mr. Yost: It is not included in the introduction of the first part. The first part uses the current wording, the amendments to the current legislation. So, since the word “analyst” is being used rather loosely in the current version, we do not need to change it.
All the analysts have been trained; all the analysts were recommended by the provincial laboratory, or the RCMP lab, to the attorney general of the province responsible. Their names have been published in the provincial gazette, indicating that they are competent. Those are only the people who were already qualified. For the new people, we need a new qualification. They need to take the required training.
Senator Carignan: But how do you explain forgetting section 320.4(c)?
Mr. Yost: I am 70 years old. The amendments were done quite quickly. We studied it. The difference is that, in our policy area, we look down from above. These are the broad strokes. The people in the trenches are the provincial prosecutors, the analysts themselves and the toxicologists who need to appear in court. They know, perhaps better than we do, the little details of that kind that are very important for them in their work, but that do not involve major questions of policy. We want them to be competent analysts.
Senator Carignan: I agree with you. That is why, when we hear witnesses tell us that it is unconstitutional, our instinct is to propose amendments to prevent it being unconstitutional. We listen to the people in the trenches too.
Mr. Yost: I see no constitutional issues surrounding the transition of analysts.
Senator Carignan: Not on that matter, no.
[English]
Senator Gold: It is just the smallest commentary, but if Senator Boniface were here, she would tell you that her office staff did an enormous amount of work. She had experienced counsel engaged on this, pored over the bill in great detail. So again, not being privy to any communication she may have had with department officials, I can tell you that her own office staff, and the staff that she had, had 30 years of legal practice. So I’m quite satisfied that some of these were identified in her office. It certainly had the resources and devoted the resources to make sure it’s the best bill that could possibly be brought forward.
[Translation]
Senator Carignan: Just to be clear, did this amendment come from the Department of Justice or from one of Senator Boniface’s employees? They do not have the same weight for me.
Senator Gold: I cannot answer that question, Senator Carignan. I do not know the exact source. All I wanted to point out is that, regardless of a given conversation, a given piece of testimony or a given recommendation, Senator Boniface, the sponsor, has put a lot of resources into studying the bill line by line. That is all I wanted to say.
Senator Carignan: We did the same thing on our side, I can tell you. It is a lot of work.
Senator Gold: I have no doubt about that, Claude.
[English]
The Chair: Senator Carignan, the way I understood the testimony of Mr. Yost is that the amendment has been elaborated on by the Justice Department. Am I right or wrong?
Mr. Yost: Senator Boniface received a great deal of submissions. They were referred by her to the minister and down to the department. Comments were provided. This is a relatively minor thing of adding one cross-reference that was an obvious miss. It didn’t require much analysis by the department to agree that this would be a useful amendment and to provide that advice through our minister, presumably, to Senator Boniface, which is presumably where this amendment appears from.
The Chair: I think we have the testimony on the record now.
Are there any other questions, honourable senators, before I have the roll call?
[Translation]
Madam Clerk, can you record the vote, please?
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Agreed.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: For.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: For.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: For.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: For.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: For.
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: For.
[English]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: For.
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: For.
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: For.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: For.
[English]
Ms. Hogan: Yeas, 11; abstention, 1.
The Chair: Amendment carried.
Then we come back to the group of clauses numbered 31 to 40. Does clause 31, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Is clause 38, as amended, carried?
Some Hon. Senators: On division.
The Chair: On division.
Are clauses 31 to 40 carried?
Senator Batters: On division.
The Chair: Are clauses 41 to 50 carried?
Senator Batters: On division.
The Chair: Are clauses 51 to 52 carried?
Senator Batters: On division.
The Chair: Shall the preamble carry?
We have an amendment from Senator Pratte. I can read his mind. Even though it’s late, senator, I still keep track of what you have in mind.
[Translation]
Senator Pratte: I move:
That Bill C-46 be amended in the preamble, on page 1, by replacing line 26 with the following:
“to adopting a precautionary approach in relation to driving and the consumption of drugs, and to deterring the commission of offenses relating to”
The idea here is to introduce the concept of a precautionary approach in the preamble. The concern we have is that, currently, in the preamble, only the concept of impaired driving is introduced, never the idea of adopting a precautionary approach. The per se limits are based on the concept of a precautionary approach; they should stand on their own and not depend on the concept of impaired driving. So I am proposing that we introduce the concept of a precautionary approach in the preamble, in order to prevent a possible challenge based on the fact that the preamble establishing the objectives of the bill nowhere mentions a precautionary approach.
[English]
The Chair: Are senators ready for the question? Roll call, please.
[Translation]
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: Agreed.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: For.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: Abstain.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: For.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: For.
[English]
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: For.
[Translation]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: For.
[English]
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: Agreed.
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: Agreed.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: For.
[English]
Ms. Hogan: Yeas, 10; abstentions, 2.
The Chair: The amendment is carried.
Shall the preamble, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Senator Batters: On division.
Some Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Senator Munson: I’m here replacing Senator Mobina Jaffer, and her proposed observation is that the committee:
Recognize that all forms of impaired driving are dangerous and that those who chose to drive while impaired should face serious consequences, but also recognize that permanent residents and foreign nationals are deemed inadmissible to Canada on grounds of serious criminality under section 36(1) of the Immigration and Refugee Protection Act when convicted of an offence punishable by a maximum term of imprisonment of at least ten years. As Bill C-46 would increase the maximum penalties for offences not causing bodily harm or death (simpliciter offences) prosecuted on indictment from five to ten years of imprisonment, the committee encourages the government to consider making changes to ensure that permanent residents and foreign nationals who drive while impaired are not disproportionally affected.
[Translation]
Senator Boisvenu: I accept the basis as good, but I cannot agree to this amendment. To start with, the first paragraph includes the passage: “those who chose to drive while impaired should face serious consequences,” but we have seen the opposite this evening. Even Senator Munson voted against amendments that actually would have provided those serious consequences. So I will not be voting for this amendment.
Senator Carignan: I propose an amendment. After the word “consequences,” take out the rest completely and just keep the first three lines.
Senator Dupuis: Which line do you want to keep?
Senator Carignan: I would keep the first two and a half lines and I would take out all the rest, from “but” to “affected.”
[English]
Senator Gold: I know it’s late, but that would rob the observation of any pertinence.
I will support the observation. It’s a complicated issue. There have been many attempts to try to address how the changes in the maximum penalties might bear upon those permanent residents and foreign nationals, including visitors. It would be affected under the legislation.
I think this strikes a balance. It encourages the government to try to figure this out, whether in the context of the Immigration and Refugee Protection Act or elsewhere. It’s important to bring this issue, upon which we heard testimony from a leading lawyer. So I support this observation as something we hope the government will take seriously.
Senator Omidvar: I, too, would like to support the observation. I believe it was one of those issues that was somehow missed during the House of Commons review. It has serious, disproportionate and, I believe, unintended — I don’t believe this was intentional — outcomes on a community that would carry a double penalty. As Senator Munson said, they should be punished. I agree, but a double penalty that could lead to deportation or inadmissibility is something nobody actually conceived of.
This observation tells the government that this is something they need to think about and rectify without saying how.
Senator Batters: I will only offer a very brief comment. In the first line, there’s a spelling mistake. It says “chose;” it should say “choose.”
The Chair: Thank you. Any other comments?
I have the proposal of Senator Carignan, an amendment to the proposal of Senator Munson, to keep the first two and a half lines and delete the rest of it. I will have to call the vote on this before we come back on the main proposal of Senator Munson.
All those in favour of the proposal of Senator Carignan to delete all the lines after the first one and a half? All those in favour?
Roll call, please.
[Translation]
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: For.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Against.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: For.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: For.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: Against.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: Against.
[English]
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: Against.
[Translation]
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: Against.
[English]
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: Against.
The Chair: I’m sorry, senator, you’re voting on amending your own proposal.
Senator Munson: No, I don’t want to amend —
Senator Batters: He said “against.”
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: Against.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: What are we voting on?
The Chair: We are voting on whether to take out some text.
Senator Pratte: No.
[English]
The Chair: Wherever we are, ask the chair. I can give you the posting. I have my GPS.
Ms. Hogan: Yeas, 3; nays, 8, abstentions, 1.
The Chair: The amendment is defeated, so we come back to the main proposal of Senator Carignan. Unless there is another amendment, I will put the the proposal to a vote.
All those in favour of the observations proposed by Senator Munson? I would ask for a roll call by the clerk.
[Translation]
Ms. Hogan: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
[English]
Ms. Hogan: The Honourable Senator Batters.
Senator Batters: Against.
[Translation]
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: Against.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: Against.
Ms. Hogan: The Honourable Senator Dagenais?
Senator Dagenais: Against.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: For.
Ms. Hogan: The Honourable Senator Gold?
Senator Gold: For.
[English]
Ms. Hogan: The Honourable Senator Omidvar?
Senator Omidvar: Yes.
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: Against.
Ms. Hogan: The Honourable Senator Munson?
Senator Munson: For.
Ms. Hogan: The Honourable Senator Pate?
Senator Pate: For.
[Translation]
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: For.
[English]
Ms. Hogan: Yeas 6, nays 4, abstentions 2.
The Chair: The proposal is carried.
Is there any other observation that the honourable senators would want to have? I see no sign of yes, so I interpret that as a no.
Before I ask you to agree that I report the bill, would honourable senators accept that any necessary consequential changes to be made to the numbering of provisions and cross-references as a result of the amendment to this bill be made by the steering committee and agreed by the steering committee to be sure that the bill, of course, remains readable for any of those who will have to interpret it in the future?
Senator Carignan: I so move.
The Chair: So moved.
Agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: Yes, Senator Batters?
Senator Batters: I just have a question about that. If there are any particular consequential points on somebody’s amendment, the sponsor of that amendment should be advised.
The Chair: Of course. I mentioned the numbering of provisions and cross-references, so we’re not at all instructed to make any change. It’s just to be sure that the numbering remains proper in terms of the bill.
Senator Batters: Yes, thank you.
The Chair: That is the instruction that we are giving the steering committee.
Senator Batters: Yes.
The Chair: Thank you. I understand it will be done by the law clerk. Of course I will not have the pretence to do that work alone or with any of our other senators.
Is it agreed that this bill be reported as amended, with an observation, to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed? Thank you.
Are there any other issues or subjects that honourable senators want to consider at this late hour? I look at Senator Pratte, he is looking for instructions.
Thank you very much, senators. I appreciate very much your cooperation.
(The committee adjourned.)