Law Times

October 26, 2009

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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ......... Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales ... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . .Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Ottawa acts wisely in taking securities issue to court I n announcing its intention to ask the Supreme Court of Canada to assess the constitutionality of a planned national securities regulator, the federal government risks inflam- ing an already smoldering battle with Quebec. The move could essentially supersede Quebec's own case against the scheme in the provincial Court of Appeal, which could refuse to hear the matter in fa- vour of its more senior counterparts. If Ottawa wins, Premier Jean Charest would then likely find himself under pressure from critics fearing a loss of provincial autonomy, a scenario that could inflame nationalist tensions. Nevertheless, the federal govern- ment's bid to move forward with a single regulator is wise. The benefits of doing so, of course, are well known. Chief among them is the end of the current patchwork of provincial bod- ies that makes it challenging to prop- erly enforce market rules. The system is also inefficient and an anomaly in a world where most other countries have a national regulator, proponents of change argue. Besides, Ottawa has a good case that it has the constitutional authority to assert jurisdiction over securities under its trade and commerce power. At the same time, Finance Minister Jim Fla- herty has repeatedly emphasized that the federal government's intervention will be voluntary. As a result, reluc- tant provinces, which besides Quebec include Alberta and Manitoba, will be able to opt out of the national regula- tion scheme and continue to operate their own bodies. Quebec has a legitimate worry that despite those reassurances, the advent of a federal scheme will even- tually force it to concede jurisdiction to Ottawa. Still, after years of debate, it's time for the federal government to make a move. Flaherty has already done so by establishing a transition of- fice under former British Columbia Se- curities Commission chairman Doug Hyndman to lay the groundwork for its planned regulator. Now, by seeking the opinion of the country's top court, the government has acted prudently to minimize the roadblocks it will face. Should the Supreme Court back the scheme, Ottawa will find itself on more solid ground in launching the new body and thereby blunt the inevitable fallout. Flaherty and his col- leagues, then, deserve credit for show- ing determination on an issue that has been calling out for bold action. With a court opinion, at least the country won't face the added burden of ongoing legal wrangling. Given our history, Quebec's objec- tions are largely inevitable. Still, with Ottawa's reassurances and its promises that a new body will be sensitive to re- gional economies, hopefully our govern- ments can reach a national solution that works better than the current system. — Glenn Kauth ing about impaired driving? Let's start with some ba- W sic law. The legal blood al- cohol limit is 80 milligrams per 100 millilitres of blood. Prior to July 2, 2008, pro- vided certain technical condi- tions were met, a breath test or blood sample result obtained by a qualified technician us- ing an approved instrument in proper working order was pre- sumed correct "unless there is evidence to the contrary." Those words led to the Cart- er defence, which takes its name from a 1985 Ontario Court of Appeal decision upholding an acquittal of an individual whose blood alcohol reading following an accident was 236 milligrams per 100 millilitres of blood. The defendant testi- fied that he had only consumed three bottles of beer, which the trial judge found to be credible evidence. As a result, the read- ing was called into question and hence there was evidence to the contrary, leading the court Impaired thinking mars impaired driving debate Social hy is it that there's so much impaired think- Justice By Alan Shanoff to reject the sample result and enter an acquittal. Ever since the appeal court upheld the acquittal, numer- ous impaired drivers have tes- tified that they only consumed two or three drinks. Indeed, the Carter defence became known as the two-drink defence. The evidence was often supported by a drinking buddy, and an expert toxicologist would then testify that the blood alcohol reading must surely be in error taking into account the alcohol consumed, the time period in which the accused allegedly drank it, and the rate at which it would have been absorbed. Anybody with a minimum of common sense could see that this self-serving defence was open to abuse. Yet it wasn't until July 2, 2008, that govern- ment amended the Criminal Code to effectively eliminate the Carter defence. As a re- sult, evidence of the number of drinks consumed would no longer suffice as evidence to the contrary. The accused must establish that the testing equipment malfunctioned or was operated improperly or that the analysis was performed incorrectly. But exhibiting impaired thinking, the amendment didn't include language indicating whether it was intended to ap- ply to charges outstanding as of July 2, 2008. As a result, we've had more than 50 trials in On- tario grappling with the issue of whether the amendment has retrospective application. It will take several years before the issue is put to rest by the appeal court. In the meantime, we've wasted and will continue to waste an inordinate amount of our scarce judicial resources on the issue. It is also basic law that before police officers are legally en- titled to demand a breath test, they must have reasonable and probable grounds to believe that a person has operated a vehicle www.lawtimesnews.com while impaired by alcohol or has a blood alcohol level above the legal limit. Here are sum- maries of five recent cases: • Police stop the accused at 3:45 a.m. The accused person's parked outside vehicle had been a bar for at least two hours. Officer smells alcohol, and the ac- cused admits to having con- sumed one beer. • Police stop accused at 2 a.m. after he made a right turn without stopping. The of- ficer smells alcohol, and the accused admits to having consumed two beers. • Single fatal vehicle accident coupled with the smell of al- cohol on the accused. • Police stop accused after failure to stop at a stop sign. Officer smells alcohol, and accused admits to having consumed four to five beers. • Police stop accused at 4 a.m. after observing accused fail to make a full stop at a stop sign, accelerate quickly to 80 to 85 kilometres per hour in a 60 km/h zone, change lanes four times, and OctOber 26, 2009 • Law times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. accelerate after the officer activated his siren. Officer smells alcohol and observes red eyes while the accused appears lethargic, fatigued, and slack-jawed. Accused says he didn't stop for the officer as he thought an am- bulance was following him. Incredibly, in each case judges found a lack of reason- able and probable grounds to justify a sample. Eventually, three of the five rulings were reversed on appeal, the last of which resulted in the July 2009 Supreme Court of Canada de- cision in R. v. Shepherd. According to Mothers Against Drunk Driving, impaired driv- ing is the leading criminal cause of death in Canada. For the sake of our loved ones, we can't allow the impaired thinking that al- lows these drivers to avoid their responsibility to continue. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He cur- rently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com.

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