Law Times

PAGE 2 NEWS OcTOber 19, 2009 • Law Times Lawyers learning to test breath As cases get harder to defend, training gives some lawyers an edge BY ROBERT TODD Law Times O ntario criminal law- yers specializing in drunk driving off enc- es are going back to school to get an edge at trial. In July 2008, Bill C-2 came into force, eliminating the so- called Carter defence that an ac- cused had only a small amount to drink before the alleged of- fence. As a result, the change is forcing lawyers to prove a problem with a breathalyzer or an operator malfunction in or- der to establish evidence to the contrary. In turn, that has led to an infl ux of applications for technical disclosure by defence counsel, say lawyers, many of whom are spending days at seminars learning more about the machines that are key to their clients' cases. Richard Aitken, whose prac- tice in Peterborough, Ont., is fo- cused mainly on impaired driving off ences, has become a qualifi ed breath technician along with his law partner Edwin Boeve. Aitken says the designation costs about $1,800 and three intensive days of training at a Toronto hotel. Th e class helps take the mystery out of breath- test machines, he says. "It's much more important to be familiar with the science and technology," says Aitken, whose training relates to the Intoxilyzer 5000C, the instrument com- monly used by Ontario police. "When you're familiar with the technology, you can be more con- fi dent when you're cross-examin- ing the breath technician because you understand how it works as well. . . . If there's a problem with the instrument, we have a better idea of what the problem is and whether or not the problem with the instrument may have led to inaccurate results." Aitken isn't sure how many other lawyers in the province have received a similar desig- nation but estimates up to two dozen have taken the step. Windsor lawyer Michael Kruse also has a practice fo- cused almost solely on im- paired driving off ences and himself has become a certifi ed breathalyzer technician. He says the course, combined with his ongoing research on the topic, gives him an important edge in defending clients. "Th is course really assists you in understanding how to attack the instrument, if you will, and assist in technical dis- closure applications and just assist in creating reasonable doubt," says Kruse. "Without that knowledge, it's very diffi - cult to defend these cases." Th e fi eld of impaired driving law has also become extremely concentrated, he says, suggest- ing only a handful of lawyers in the province now specialize in the area to the extent he does. He questions how well lawyers who have not taken a course will fare in court. "It just assists you in defend- ing the case properly," he says. But he adds it's too early to tell if the course has helped him maintain the rate of courtroom success his clients found before Bill C-2 became law. "We're really in a state of fl ux right now," he says. "Th ere's a lot of uncertainty in the province, and a lot of cases are getting bogged down with technical disclosure applications." Toronto criminal defence lawyer Ron Jourard says he spent around $500 to take seminars from an expert on breathalyzers. Th e seminars don't qualify him as a certifi ed technician, but he says such a distinction isn't necessary. "What you need to do is get the education that goes behind that," says Jourard, who adds that about 80 per cent of his practice is focused on impaired driving cases. "It's nice to be able to tell your clients you're a certi- fi ed intoxilyzer technician, but essentially all you need to be able to tell them is you understand the workings of that machine inside out and backwards." He notes that experts are always called on to provide technical expertise. While de- fendants could save money by hiring a lawyer with knowledge that precludes the need to pro- vide disclosure to an expert, Jourard suggests it's best not to cut corners. "All the cops take those cours- es, and a lot of them have gaps in their knowledge and under- standing of the machine, and they make mistakes," he says. "So even if I had those qualifi ca- tions, I would still run all the dis- closure materials by my expert." Kruse, meanwhile, says Bill C-2 has done more than make it harder for defendants to counter Crown allegations. He says it has slowed the wheels of justice with court cases that once took at most a day to prosecute now extending to multiple sittings as both sides of the courtroom wrangle over technical disclosure. "Additionally, there was the whole issue of whether Bill C-2 was retrospective or prospec- tive, and that really has tied up court time and put a kink in the system, if you will," he says. "I don't know if, when they brought in this legislation, all this was anticipated. I do think it will take a few years for all of this to sort out in the court system before we have a clear picture about the full eff ect of Bill C-2. But right now it really is creating a lot of backlogs in the court system." LT The Prosecution and Defence of Environmental Offences Sentencing charts now in electronic format! Judge stayed in hotel during marathon trial Continued from page 1 For one thing, Granger's order that the defendants pay 10 years' Comprehensively covers all aspects of environmental offences in Canada, from the initial investigation through to trial and sentencing. It draws on case law from across the country and key regulatory guidance documents used at both the provincial and federal levels. Revised and updated, this service reflects the not yet in force amendments made to federal environmental laws by the implications. Inside find reported and unreported cases on: • due diligence • sentencing • directors' and officers' liability • constitutional and Charter arguments • environmental audits • evidence and procedural issues • solicitor-client privilege claims • interviewing suspects Tables track fine ranges by year of proclamation over the past decade both federally and in Ontario. New online sentencing database for quick and accurate research Find cases, offences, fines and sentencing information, quickly and easily, through two custom search templates: words and phrases search and case law search. ORDER your copy today Looseleaf & binders (2) with Internet access • $289 • Releases invoiced separately (3-4/yr) P/C 0159030000 • Vol 1. ISBN 0-920722-57-1 • Vol 2. ISBN 0-88804-370-8 S.C. 2009, c.14, preparing you for their worth of lost profi ts to GasTOPS is well above past fi ndings that set the range within a year or two. Another aspect, discovered through a search of Mxi's backup computer records, was the fi nding "that the defendants purposely failed to disclose key documents that they should have disclosed as part of the discovery process," Yach, with Shields & Hunt in Ottawa, tells Law Times. He notes, however, that the ability to conduct such an exhaustive trial, with all its evidence and complex technological aspects, was sig- nifi cant in a diff erent way. "It's scary to think how long the trial might have been if we hadn't used an electronic courtroom," says Yach, adding that Granger, who normally sits in London, Ont., was perfectly suited for the ordeal because of his own interest in promoting paperless trials and electronic documentation. "We owe him a debt of gratitude because no one expected, ever, [that] it was going to last as long as it did. He would come up here in the dead of winter, living out of a hotel room." Electronic versions of briefs, motions, transcripts, and evidence al- lowed Granger and lawyers on both sides, as well as witnesses watching digital screens, to view key documents at the touch of a fi nger. Ottawa litigator Tom Conway agrees the case is signifi cant giv- en moves in Ontario courtrooms toward greater use of electronic documents. But both he and Yach say the province is far behind the United For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Berger_PDEO (LT 1-4x3).indd 1 LT1019 States when it comes to electronic courtrooms. Th ere, lawyers and the public can access court documents even though the fi lings are hundreds or thousands of kilometres away. "In the U.S., they are much more advanced than we are, as they are in most things," Conway tells Law Times, adding he is involved in a case where the pile of documents makes the GasTOPS litigation look small in comparison. 10/14/09 10:12:17 AM WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-7 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 5/29/08 1:05:49 PM LT Sentencing Database prepared by: Jonathan Myers and Stanley D. Berger Environmental Enforcement Act, Stanley D. Berger

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