Law Times

Law Times • February 14, 2011 NEWS Will Carter live again? Ruling calls 2008 restrictions on two-beer defence unconstitutional BY MICHAEL McKIERNAN Law Times a Windsor, Ont., judge declared legislation that eliminated the so-called two-beer defence to be unconstitutional. Ontario Court Justice Guy T DeMarco found amendments to the Criminal Code that took eff ect in July 2008 were "over broad" and violated s. 7 of the Charter of Rights and Freedoms guaranteeing the right to make full answer and defence in the case of Dale Towle. He's facing charges of impaired driving and operating a vehicle with over 80 milligrams of alcohol per 100 millilitres of blood. DeMarco's decision would need confi rma- tion by a higher court in order to become binding. Th e Carter defence, which got its name from the 1985 case of R. v. Carter, allowed de- fendants to raise doubt about the possible malfunction of a breathalyzer when it gave a reading of over 80. Accused would typically argue they had consumed only a small amount of alcohol or that they had had their last drink shortly before the test, which thereby infl ated the reading. Friends would of- ten corroborate the amount consumed, and a toxicologist would give expert evidence calculating the accused's corre- sponding blood-alcohol level at the time of testing. Th e new legislation left ac- cused with the burden of proving the device had malfunctioned or was operated improperly using technical evidence only. A defence expert in Towle's case detailed a number of in- stances in which an apparently properly functioning breatha- lyzer could give an inaccurate reading. Th at could leave an innocent person without re- course to challenge the validity of the reading. "Regrettably, in some of its applications . . . this legislation has the eff ect of depriving pos- sibly innocent individuals of the right to tender or to have taken into consideration, in the determination of whether the Crown has met its burden of establishing guilt, evidence which is probative of inno- cence. In my view, this violates the principles of fundamental justice," DeMarco said in his ruling late last month. Towle's lawyer, Patrick Duc- harme, said DeMarco's deci- sion was a "landmark" one. Al- though there have been numer- ous challenges to the constitu- tionality of the amendments, Ducharme believes his is the fi rst to succeed in Ontario. He says the legislation placed too much trust in the accuracy of the Intoxilyzer 5000C, the de- vice used by police in Ontario. "Th e scientifi c commu- nity acknowledges that no Hardbound • 262 pp. November 2010 • $95 P/C 1001010000 ISBN 978-0-88804-515-7 Prices subject to change without notice, to applicable taxes and shipping & handling. he Carter defence could make a return in im- paired driving cases after measuring device is infallible, so to begin reading into the infallibility of this device is a huge mistake. It functions on exactly the same premise as the devices used back in 1985, and it's no more accurate," Ducharme says. A 2009 decision by Ontario Court Justice Bruce Duncan in Brampton, Ont., has guided most Ontario judgments so far. He found the new amend- ments didn't violate Wojciech Powichrowski's constitutional rights and accepted the evidence of a Crown expert who said the machine performs more than 50 internal checks and has a maxi- mum error of 10 milligrams per 100 millilitres. In his decision, Duncan said that meant that where the lower result of two samples is "90 or greater, it is not possible that the subject was un- der 80 at the time of testing." To believe the machine was unreliable was "fantasy, not rea- sonable doubt," Duncan said. In his decision, Duncan also analyzed the evolution of the Carter defence, which he said had evolved from a "faint hope, to a defence that was diffi cult to deny." DeMarco said the evidence brought before him was sig- nifi cantly diff erent to that be- fore Duncan. Defence expert Dr. Michael Ward, a toxicolo- gist from London, Ont., ex- plained that it's possible for the breathalyzer to overestimate the concentration of alcohol in the blood by more than 10 milligrams per 100 millilitres because of individual variations in blood-to-breath ratios. He also said the device's mouth-alcohol detector isn't subject to an internal check and that the device doesn't record other calibrations, which leaves room for undetected errors. Ra- dio waves and other chemicals in the breath can also aff ect the reading, Ward testifi ed. In ad- dition, the machine may not catch some errors by the op- erator, he noted. Th e Crown's expert agreed with many of his statements. DeMarco said it was "easily conceivable" that accused could record a result over 80 when in fact their blood-alcohol level was under 80. "In such a case, an innocent person would be left without re- course by virtue of being unable to show that the instrument was malfunctioning," he said. While he noted Parliament's intention to "stem the tide of Carter defences unaccompanied by any attack on the functioning of the instrument" was "highly desirable," he said it wasn't nec- essary to deprive innocent in- dividuals "of a valid defence in order to curtail the facility with which the Carter defence may be successfully advanced." Jonathan Rosenthal, who represented Powichrowski be- fore Duncan, says he was pleased to see DeMarco's take on the legislation. "I'm very encouraged and obviously quite pleased be- cause I do think this law is very unfair," Rosenthal says. "You've got two judges deciding the matter in two diff erent ways. Th is may lead to confusion, of Patrick Ducharme says he has at least 20 cases that the new ruling could affect. course, because you've basically got competing decisions." But Rosenthal doesn't ex- pect a resolution of the com- peting lines of judicial thought any time soon. Two-and-a-half years after the legislation's en- actment, the Supreme Court of Canada is still waiting to hear arguments on the retroactive aspects of the law after judges across the country disagreed on whether those charged before the legislation came into eff ect should be tried under the new rules. Rosenthal says he expects that case to come before the top court later this fall. "It is going to take a very long time for this matter to wind its way through the courts," he says. "I'll be telling clients the same thing I've been telling them be- fore — that there are very strong arguments as to why this law is unconstitutional and unfair." Ducharme, meanwhile, says he has at least 20 more cases that the new ruling could af- fect. DeMarco himself said he believes his decision could have an impact on "thousands, if not tens of thousands" of cases. "It would, it seems to me, be very prudent that the hearing of this issue by courts of higher author- ity be expedited," he said. LT See you February 28th Due to the upcoming statutory holiday, Law Times will not publish in print next week. We will return on Feb. 28, 2011. 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Topics include: duties related to the condition of licensed premises and to activities on the premises • • • • • • • the obligations of commercial hosts to take reasonable steps to ensure that patrons are not injured by other patrons whether a commercial host may be responsible for the conduct of patrons who have left the premises conduct of employees and the use of excessive force social host liability at private functions the risks facing employers who provide alcohol to employees criminal, regulatory and administrative matters ... and more! An invaluable resource Lawyers in private practice (both plaintiff and defence) and in-house counsel will find the summary of key defences particularly useful and will greatly benefit from this thorough review of the law. Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation CANADA LAW BOOK® LT0214 www.lawtimesnews.com

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