Hon. Serge Joyal:
Honourable senators, I rise to oppose the amendment proposed by Senator Gold. In explaining my position, I will deal essentially with three elements.
The first is the position in public opinion in relation to that amendment and in relation also to the position taken by the representatives of the legal profession during the debate on the specific issue of random breath testing.
Second is the review of jurisprudence in relation to Charter rights, which is essentially that, “Everyone has the right to be secure against unreasonable search or seizure,” which would be violated, in my opinion, if the amendment proposed by Senator Gold were adopted. That is my second point, namely, the position of jurisprudence in the last 35 years in relation to the interpretation of section 8.
Then I will address the point raised by Senator Wetston last night — I was not in the chamber, but I read his speech this morning — in relation to the role of this chamber, of Parliament, when there is a doubt about the Charter rights that are included in the proposed legislation and the role of the court. In other words, if there is a problem, should we just shift it to the court, wash our hands and leave the court to deal with it?
Put in simple terms, this is the issue that underlines the comments made last night by Senator Wetston. I think it is an important comment because it addresses not only this bill but also any bill where Charter rights are involved in the enactment of legislation. You have heard me in this chamber during the last nine years of the previous government. You will remember how many times I stood up here and raised an issue in relation to the victims surcharge in relation to minimal penalties and to the eight government bills to change this place to make it an elected chamber in terms of eight or nine years. You will also remember my position in relation to the amendments to the law of succession to the throne. Those are all issues that conflict at a point in time with some sections of the Constitution or the Charter. And what should we do as a chamber when we face such a situation? I thought sharing with you some thoughts in relation to that would be helpful.
My first point is about where Canadian public opinion stands in relation to that alleged violation of section 8 of the Charter, the right to be secure from unreasonable search and seizure.
Honourable senators, public opinion is not as unanimous behind the fact that we should give the police untrammelled power to do whatever they want on the road, to push anybody into the Breathalyzer test.
I want to quote to you the editorial in The Globe and Mail of May 29. It was a half-page editorial. The title is “Higher wisdom:”
The Senate has a habit of providing fodder for its detractors, but every so often it reminds us all of its importance. . . .
Drunk driving requires a robust response, but Bill C-46 places an unreasonable limit on Canadians’ freedoms. . . .
Advocacy groups . . . have long agitated for greater police leeway . . . .
The problem with that reasoning is that it reduces random police checks to the level of minor inconveniences — in a free society, there are no such thing — and elides the fact they tend to disproportionately target people of colour. . . .
Police officers need adequate tools to address impaired driving, but that should not include the unfettered discretion to stop anyone they like. . . .
Too much activism on the part of our unelected Senate is a bad thing, but in this case its legal committee is providing sound second thought. The government would be better served by listening to it.
That was The Globe and Mail editorial.
Another editorial, this time in the Ottawa Citizen, the competing paper, entitled “Sobering Thoughts,” states:
We have little sympathy for those who drink and drive. It’s a tremendously self-centred and anti-social behaviour. The government is right to consider policies that will work to put an end to it.
That said, it’s the job of the Senate to push back against ill-advised legislation. . . .
In other words, more debate and study is needed. The negative impacts of such provisions have been well-elucidated, and the government’s defence hasn’t been particularly inspired.
That was the Ottawa Citizen, May 26.
The Ottawa Citizen again, June 9, last week, during the course of our debate on the cannabis legislation. This time the editorial is signed by Tyler Dawson, Deputy Editorial Pages Editor of the Ottawa Citizen. Mr. Tyler wrote:
Between the separate impaired driving bill — where senators pushed back hard against the end of reasonable suspicion on breathalyzer testing, meaning police could test drivers for alcohol without suspecting they’d had a drink — and the marijuana legalization bill, the Senate has done its level best to do precisely what it exists to do: scrutinize a bill and make it better.
Honourable senators, of course, there have been editorials that push forward the other position. It was so in the Toronto Star of May 28, and there is no doubt that there are passionate positions on this issue. When I say “passionate,” sometimes I think a position derived by what I call “sentiment,” because we all have in our family experiences, friends, neighbours and people who have been caught in accidents, and we are all furious about it. But when we are acting as legislators, we have to act according to the democratic principles of our system.
Honourable senators, I’m not alone in that way of approaching the issue. Listen to who among the legal profession shares the concerns I have: Le Barreau du Québec; Canadian Criminal Justice Association; Indigenous Bar Association, Canadian Bar Association; Kyla Lee and Sarah Leomon, Acumen Law Corporation from Vancouver, Criminal Lawyers’ Association, Canadian Council of Criminal Defence Lawyers and the B.C. Civil Liberties Association, to name but a few. So I’m not alone in that boat unless you think this is a crazy, crackpot kind of position. It’s not at all, honourable senators.
I’ll tell you why. When you are faced with an issue that deals with the life and death of people, you have to ask yourself what are the just principles that need to be applied. Otherwise, we’re just swayed by our emotions and our personal experience. This is not the bar to maintain when we want to establish a system that is fair and respectful of the rights and freedoms of every citizen.
I want to reassure you, honourable senators, because last week during the debate, Senator Gold raised a suspicion that the committee might not have done everything to listen to Professor Hogg, who happened to hold a view contrary to the one I proposed. I want to reassure Senator Gold, and I checked this with the clerk of the committee. The committee contacted Professor Hogg on February 5 to ask him to appear in person in March. He could not appear in person. We offered him a videoconference. We emailed on May 4, 7, 8 and 10 to offer him a video conference and again on May 11 to make him the offer to appear at the time of his choice. Professor Hogg, because he is very busy, could not make himself available.
I want to reassure you, Senator Gold, that the committee did not try shift Professor Hogg aside to hear only one side of the position. It’s not at all what the steering committee tried to achieve. We wanted to offer a fair opportunity, and I think after contacting Professor Hogg eight times we did our due diligence to try to listen to him. I want to make that very clear.
On the other hand, honourable senators, because Professor Hogg has been adjudicated as being the professor of constitutional law, I have something to suggest to you for your reflection in relation to that. Professor Hogg appeared at the Senate committee on September 27, 2006, in support of the government bill to make this chamber an elected body with a shorter term of eight years. That was the position of Professor Hogg. He was of the opinion that that could be achieved through section 44 of the Constitution. What does section 44 state? It states:
Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.
That was the position of Professor Hogg and I quote his brief: “Other aspects of the Senate can be changed under section 44.”
Well, I have to tell you, honourable senators, that there are twelve justices, nine from the Supreme Court, unanimous, and three from the Court of Appeal of Quebec and among them former Justice Dalphond, who is now a senator, who concluded that those changes could not be made under section 44 of the Constitution, and the government legislation was unconstitutional. That’s why we have today independent senators who don’t need to be elected. They are recommended to the Governor General, the same way as all other senators.
So if you tell me that Professor Hogg is the last word on interpreting the Constitution, I have some reservations. I also have some reservations with Professor Hogg in relation to the amendment to the Succession to the Throne Act. Professor Hogg states the following in his textbook:
In an earlier version of this book, I interpreted the O’Donohue decision as taking the radical step of adding a nonscheduled statute to the Constitution of Canada. However, I now think that it is incorrect.
It is incorrect, of course, because meanwhile we have had a debate in this chamber. We called upon three experts, Professor Heard, Professor Benoît Pelletier and others, and it was debated in the court and we won in the court. Now Professor Hogg contends that we were right.
I don’t dispute Professor Hogg. He is a friend of mine. But I think when we propose that somebody is the last word on a constitutional issue, let’s apply our sober second thought.
In applying that sober second thought, honourable senators, I want to bring to your attention to the position of Professor Don Stuart, whom we heard at the committee. Professor Don Stuart has been a professor of law at Queen’s University since 1975, so for 43 years. He retired two weeks ago:
I have been a professor at the Faculty of Law, Queen’s University since 1975. I have taught and researched in many aspects of the criminal justice system. I have been the Editor of the Criminal Reports, a national reporting and comment service since 1982 and of the National Judicial Institute’s Criminal Essential eletter for judges since 1990. I published the 7th edition of my textbook Charter Justice in Canadian Criminal Law in February, 2018.
So I feel that the opinion offered by Professor Don Stuart and all of the representatives of the legal profession whom I quoted earlier provides a sound basis on which to establish the position that the proposal of Senator Gold’s, respectfully submitted, might not be right.
And why is it not right? I’ll tell you. In the last 35 years, The Supreme Court has never accepted that an infringement of the right to be secure against unreasonable search and seizure could be saved by section 1 of the Charter, which is what is acceptable in a democratic society.
Senator Gold asked Senator Batters this question: What are those decisions?
These were past decisions of the Supreme Court where the Supreme Court never concluded the way that Professor Hogg concluded.
Well, I have them, honourable senators. I researched them, and I will quote them very quickly. The Collins case in —
The Hon. the Speaker: Sorry, Senator Joyal, but your time has expired. Would you like five more minutes?
Senator Joyal: Thank you, honourable senators.
I think it is important to put these references on the record, and I will tell you why: If Senator Gold’s amendment is adopted, it’s going to be challenged the next day, and the justices will look into the debate today, yesterday and the day before and the day after. I want that to be on the record to help those who will have to adjudicate on this to know what principles are at stake.
The second reference is Kokesch in 1990, perimeter searches. The third one is strip searches in Golden in 2001. The fourth one is Kevin Fearon on cellular phones in 2014. The fifth one is in 2016, not that long ago, on genital swabs to get DNA whereby the court also concluded that section 8 cannot be saved by section 1.
I want to come back to the decision that Senator Wetston quoted yesterday, quite appropriately, in my opinion, which is the Goodwin decision of the Supreme Court in 2015. What did the Supreme Court conclude in relation to this? To quote the case, paragraph 85:
In the circumstances, I agree with the chambers judge that the ARP scheme as it existed “does not minimally impair the right of a driver to be free of unreasonable search and seizure” . . . . I conclude that the former “fail” branch of the ARP scheme is not saved under s. 1.
That was 2015. This is where the jurisprudence lies now. When the court will be seized with this minimal impairment, the court will look into two things, I can tell you, honourable senators. They will look to the fact that there now exists an ignition interlock device. In other words, there is a system that you put in your car, and when you sit behind the wheel, the breath that you have is taken by a system that locks the car if you are impaired. That system exists. It’s not science fiction; it exists. I have here the quotation of cost and where you can get it.
The second point, which in my opinion is very serious, is the discrimination against targeted groups. We heard at committee the results of a study conducted by the Ottawa Police Service from 2013 to 2015. Here are the conclusions of the racial profiling issue: Middle Eastern drivers were stopped 3.3 times more than you would expect, based on their population in the city, and Black drivers were stopped 2.3 times more, based on their population in the city, as were Aboriginal peoples.
Street checks conducted by the Vancouver Police Department disproportionately involved people who were Indigenous, according to data released by the force . . . .
This is according to a disclosure released by the force on May 24. Here are statistics:
The data, recently posted to the department website, said 16 per cent of those who were subjected to street checks last year were Indigenous people, who make up about 2 per cent of Vancouver’s population.
The data said people who were black, about 1 per cent of Vancouver’s population, were also disproportionately stopped. About 5 per cent of street checks last year were of black people.
And then there are the statistics from the Edmonton police:
. . . Indigenous women in Edmonton were almost 10 times more likely to be stopped and to have their identification recorded than anyone else.
Then from the City of Toronto:
Specifics do differ from city to city – while black and Indigenous people are most often targeted, those who police consider “brown” show up in the stats for Toronto. Some places like to pick on “Arabs” or “West Asians,” which I think means Muslims . . . .
It’s clear from all the data and from the court itself — and I would refer to Justice Morden from the Court of Appeal of Ontario, who recognized in one of the court’s decisions that there is racial profiling by the police forces. The justice contended that all social studies concluded that.
If we adopt a bill, we in the Senate have the responsibility to speak for the minorities and those who don’t have a voice. If we adopt a bill that will have as an impact the targeting of those people, in my humble opinion, we have failed in our constitutional duty. We cannot shift the problem to the court and say the court will deal with it, and once the court will have pronounced, it’s going to be the end of it. That’s not what I call responsible Parliament.
When we come to the conclusion that there is a violation of Charter rights, it is our responsibility to amend the bill. That is what the Constitution requires, and that’s how the court interpreted it in its April 2014 decision.
Thank you, honourable senators.
Hon. Marc Gold: Would Senator Joyal take a question?
The Hon. the Speaker: The senator’s time has expired.
Would you like five more minutes, Senator Joyal?
Senator Joyal: If the Senate allows me, I will.
An Hon. Senator: No.
The Hon. the Speaker: I hear a “no.”