Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Associate Publisher ...... Gail J. Cohen Editor ............ Gretchen Drummie Associate Editor ......... Robert Todd Copy Editor ............ Matt LaForge CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2008 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 — has been nominated by Prime Min- ister Stephen Harper for that empty spot on the Supreme Court of Canada perch. It's pretty much unanimous he's a good choice. But, it's the word "choice" that has T homas Cromwell — the Nova Scotia Court of Appeal justice and not the first Earl of Essex September 15, 2008 • 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 Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • 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@clbmedia.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 or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Enigma wrapped in a riddle propelled Harper into some controver- sy, because he suspended the work of his own Supreme Court selection panel to make the announcement. A day be- fore announcing the election. According to Robert Todd's story on page 4, issues within the committee were cited as the reason why he took matters into his own hands. They include op- position MPs' refusal to participate in scheduled meetings and wrangling over who should sit on the panel, which was created last spring by Harper to get a short list of three contenders. A press release from the prime minis- ter's office, making the announcement by Harper and Justice Minister Rob Nichol- son, said the panel has "failed to arrive at a short list of recommended candidates." Nicholson said in a CP story — af- ter praising Cromwell's great qualifica- tions — that he was disappointed by the panel. "Last month they didn't get anything done because the opposition had objections to the composition of the committee," he said. "And this month, a couple days of teleconferenc- es had to be cancelled because no mem- bers of the opposition were available. So we're moving forward on this." The story said opposition MPs want- ed two government selections changed because they were cabinet ministers. Now, some may suggest Harper's pre- election move was in part a response to rising calls for the need to have the spot filled before the court's busy fall session starts on Oct. 6. But the nomination won't be official until after Cromwell appears before a televised ad hoc Par- liamentary committee of the House of Commons to answer questions. That isn't expected until after the Oct. 14 election. Others may suggest it is convenient that by delivering his choice before the election call, no matter what happens with the electorate, it's "his guy" who's headed for the bench (albeit someone who's the wildly popular choice and by no means "his guy" in terms of ideol- ogy) — and while technically another government isn't bound by it, they probably won't nix Cromwell. Of course it's Harper's right to nomi- nate a judge; he's the PM. But again, this panel was his idea, so why junk it now? NDP justice critic and committee member Joe Comartin, revealed to Todd, in a written chronology of events, that the group was scheduled to start phone inter- views with provincial law societies and bar associations for input, but panel staff e- mailed him on Aug. 29 cancelling that. He also said there was discussion at their first meeting about whether some Conservative members should be on the committee, but they passed a resolution agreeing with its composition. So why scrap the panel? Comartin told Law Times the Conservatives "played partisan politics with this." And, since Cromwell is seen as moder- ate, Comartin said the appointment can be used during the election to defuse criti- cism that the court would be stacked with hard-line ideologues from the right. Or, maybe it's what Comartin said in the Toronto Star: "I think what this comes down to is what is so typical of this prime minister — absolute control." Could it simply be that Harper knew this was one hole he could quickly plug before calling the election, and win po- litical points? Or are we spinning our wheels trying to figure out why a man, or onion (as Richard Cleroux says in his column), does what he does? Bottom line: so far Cromwell looks like a fine choice. Harper should just be happy his pick's first name isn't Oliver. — Gretchen Drummie subspecialty of criminal law, with some practitioners swearing off practising in this increasingly complex area of law. However, since July 2, when the Tackling Violent Crime Act came into force, it is likely many lawyers will choose their trial cases carefully. Bill C-2's stated purpose in the D riving under the influ- ence of alcohol or drugs had already become a area of driving under the influ- ence is to introduce a new regime for the detection and investiga- tion of drug-impaired driving, and to strengthen the penalties for impaired driving. Drive carefully: rough road ahead A Criminal cused is entitled to the benefit of the lesser punishment, pursuant to s. 11(i) of the Charter. In addition to being able to demand alcohol-screening tests, police officers are now able to demand physical co-ordination screening tests. If the officer has reasonable grounds to believe that the person was impaired by a drug, or by a combination of a drug and alcohol, a demand can be made for an evaluation of the person's ability to drive, and a fur- ther demand could then be made for blood, oral fluid, or urine. From the trial lawyer's perspec- The minimum penalties have been stepped up to a fine of $1,000 for a first offence, to 30 days for a second offence, and to 120 days for subsequent offences, which precludes the possibility of an in- termittent sentence for a third of- fence. If the Crown proceeds sum- marily, the penalty range is now up to 18 months. However, for charges that predate July 2, the ac- Mind By Rosalind Conway presumptively accurate, Breathalyz- er readings could be contradicted by the testimony of the client ("I only had two beers") plus expert evidence. Bill C-2 states that the Breathalyzer results are now "conclusive proof" of the blood-alcohol level. Now for counsel to success- tive there is concern that the new amendments signal the death of the popular "evidence-to-the-contrary" defence. In R. v. Carter [1985], 19 C.C.C. (3d) 174, the accused said he had had three beers, and his expert said his blood-alcohol level would have been zero. The Ontario Court of Appeal ruled the accused was not required to speculate where the error may have occurred. Although the machine was fully run an evidence-to-the- contrary defence, the task is almost insurmountable. Three things must be shown to rebut the readings: that the analysis was performed improperly, that the improper performance re- sulted in a reading of over 80, and that the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time www.lawtimesnews.com when the alleged offence was committed. The presumption of inno- cence has disappeared, and chal- lenges are expected under s. 11(d) of the Charter. A criminal charge has metamorphosed into one that smacks of absolute liability, with a quasi-criminal standard of proof. Whether the old defence of evidence to the contrary applies to cases already in the system is pres- ently being litigated. In Ontario, Crowns are taking the view that the change is not substantive, but rather is procedural and retrospec- tive. But how can a defence that existed at the time the offence was committed and the date set for trial, become unavailable? The type of disclosure that has typically been given for cases al- ready in the system would preclude any proper preparation of the cli- ent's defence, if the law is retrospec- tive. We have no videos, for exam- ple, of the breath tech operating the Breathalyzer. In future, disclosure requests may balloon to unman- ageable proportions if the defence must mount a sophisticated sci- entific attack in order to dispute the readings. The time involved in preparing and litigating these cases will increase significantly. There are already contradic- tory rulings on whether the new law governs the old cases. I found a half dozen cases favouring ret- rospectivity and the Crown, and three favouring the defence. I like the reasoning in R. v. Moore, [2008] B.C.J. No. 1340, where Judge Robert Higinboth- am of B.C.'s Provincial Court said in obiter that the changes are "substantive law disguised as pro- cedural in nature," and says it is "inconceivable" that an arguable defence can be swept away. Stay tuned: this is surely a matter of national significance that will be finding its way to the Supreme Court of Canada. LT Rosalind Conway practises criminal law in Ottawa. She can be reached at rosalind.conway@magma.ca.

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