Law Times

Law Times • June 11, 2012 in place, but the public at large is turning up the heat on the issue and the Supreme Court of Canada may end up making the decision politicians of all stripes fear. Th e latest controversy is over Bill 13, a P Losing faith in the separate school system COMMENT remier Dalton McGuinty and his cabinet have assured Ontario Cath- olics that full funding for the sepa- rate school system remains fi rmly have played the two aces in its hand: its right to religious au- tonomy and the constitution- ally protected right to school funding. But in reality, the church has piece of legislation passed last week that amended the Education Act with respect to bullying. Most controversially, it now allows students to set up clubs called gay-straight alliances in both the public and Catholic school systems. Predictably, Th omas Cardinal Collins, archbishop of Toronto, isn't happy and is already warning that Catholic schools won't accept gay-straight alliances. Jim Hughes, national president of the Campaign Life Coalition, went further: "It appears that the minister of education is an apologist for the homosexual activists and their drive to insert their agenda into all schools. Th ey propose to open the doors to an agenda opposed to Catholic teaching. We remind the government that schools and hospitals in Ontario were primarily established by the Catholic church at the time of the BNA Act, which guarantees their denominational rights." Th e Catholic church, then, appears to Queen's Park merely harmed itself. Meet Reva Landau, a non- practising lawyer and author of a couple of books on women' issues. She has brought a chal- lenge to the Supreme Court of Canada asking it to clarify the constitutional obligation to fund Catholic schools. As a compromise and in order to under- s Ian Harvey line the peace between Britain and France, the British North America Act of 1867 in- cluded s. 93 that ensured education in both the Catholic and Protestant faiths. Landau argues shrined funding for grades 1 to 8 and then only to those who declare support for the Catholic system on their property taxes and live within roughly fi ve kilometres of a separate school. She wants the top court to strike down the clause only en- be sure. But it has a chance, and that' because politically no one will stand up and suggest cutting funding for separate schools in Ontario because it' Her case is a long shot, to s what's so intriguing of-death issue even though the consensus would seem to lean towards one public system. Almost any politician who s a kiss- elephant in the room — public funding of Catholic schools — has become so destruc- tive to fundamental rights and equality it' impossible to ignore. Th is debate has been going on since before Confederation and it isn't going away. More recently, it was over Mark Hall and his right to take a date to his high school prom and today it' s straight alliances." While neither the government nor the s over gay- John Tory, who blurted out his pledge to ex- tend full funding to all faith-based schools in 2007 and lost the election that was his to win. Former conservative premier Bill Davis' has meddled with the system has suff ered at the ballot box. Ask former Conservative leader Opposition will wade into this minefi eld wholesale, there were rumblings earlier around the future of separate schools. On- tario clearly needs to reduce the defi cit and rationalize costs. As a result, it' funding for grades 9 to 12 and notes Que- bec opted out of s. 93 in 1997 and doesn't support faith-based schools anymore. In eff ect, she says the contract is broken and null and void. legacy around the time of his resignation in 1984 was to extend full funding to include grades 11 to 13 and thereby reverse a stand the government had held for 15 years. In the ensuing general election, voters reduced the government to a minority that eventually fell when the NDP and the Liberals joined together on a non-confi dence vote. Th e secularists have weighed in, too, with this comment from Justin Trottier, national communications director of the Centre for Inquiry: "Th e real question now is whether Ontario should be required to continue to support Catholic schools. Th e how much it could save by combining pub- lic and separate school administrations in some jurisdictions. Ontario is unique in having two systems s investigating students who cause a drag on performance and relegate them to the public system. Maybe it' s because they can expel troublesome place in Ontario classrooms. PAGE 7 in Canada, but it comes at a cost of $1.5 bil- lion a year. While some say Catholic schools provide a superior educational experience, that' s time to say the church has no LT Ian Harvey has been a journalist for 35 years writing about a diverse range of issues includ- ing legal and political aff airs. His e-mail ad- dress is ianharvey@rogers.com. Fate of Carter defence rests with SCC as court considers vested right u SPEAKER'S CORNER BY ESTHER CARENZA For Law Times D epending on the Supreme Court of Can- ada' we now know them under s. 258 of the Criminal Code. Before Bill C-2 became law, the presumption under s. 258(1)(c) of the Criminal Code was that, in the absence of evidence to the contrary, the breath analysis in over- 80 cases would determine an accused' Onge Lamoureux, both the Carter defence and evidence to the contrary may cease to exist as s decision in R. v. Dineley and R. v. St- content at the time of the alleged off ence. Under Carter, evidence to the contrary related to evidence of con- sumption from the accused and others as well as expert testimony as to the blood alcohol concentration from the time of the off ence post-consumption and some- times further back to the time of testament. In the over-80 off ence of driving with excessive s blood alcohol would terminate the breath test process or would show it on the evidence ticket provided to the defence. It is common practice for defence counsel to make dis- closure requests for access to maintenance records of breath devices. However, Crown counsel vigorously oppose these types of disclosure requests. Further, the disclosure produced is at times incomplete. Th e Crown concluded that "fundamental justice embraces more than the rights of the accused . . . but also the avoidance of unprobative and misleading evi- dence. blood alcohol content, evidence to the contrary always sought to undermine the presumed fact as to whether the blood alcohol of the accused was over 80 milli- grams at the time of driving. Carter evidence adduced at trial was for the purpose of attacking the instrument or its operation and did so by indirect inference. Th e birth of Bill C-2, then, represented a bid to do away with what the government has deemed to be non- scientifi cally valid defences in such cases. In submis- sions at the Supreme Court last year in both Dineley and St-Onge Lamoureux, the Crown argued the Bill C-2 amendments were procedural or evidentiary in nature and merely specify the type of evidence that would be suffi cient to raise a reasonable doubt. Parliament, it seems, prefers machines to people. It believes technological advances authenticate the validity of breath results as a complete and pristine record with a number of diff erent tests recorded between the two breath samples and calibration checks before each one. In submissions to the Supreme Court, lawyers for interest in having the trial process arrive at the truth and argued "the accused has never had a right to ir- relevant evidence. Th e accused is not permitted to dis- tort the truth-seeking function." Moreover, the Crown maintained a litigant cannot put a defence to a trier of fact or a jury unless it has an air of reality to it. While the Carter defence is introduced in the Tack- " In addition, it noted the concern about society's doubt about an essential element of the off ence. With the delay in the Supreme Court' were being followed to determine whether the amend- ments substantively changed the vested rights of people charged under s. 258 before the proclamation of Bill C-2 or whether they were exclusively procedural and only aff ected the content of a defence presented in the court- room. As a result, if an amendment was identifi ed as merely procedural, it was to have retrospective applica- tion. If it was found to be substantive by impinging upon the rights of the accused, it was considered to have only prospective eff ect. With respect to the administration of justice, there on the issue, many cases have gone through the courts to completion. As of July 2, 2008, statutory interpretation and the signifi cant case law principles s decision ling Violent Crime Act, it in eff ect loses its evidentiary force. Th e use of the phrase "conclusive proof" in the new s. 258(1)(c) does not imply a new legal burden but simply makes it plain that s. 25 of the Interpretation Act no longer applies to the revised provision. As a result, the breath analysis is conclusive proof. In addition, under the new legislation, an accused cannot adduce evidence to the contrary in order to raise a reasonable doubt as to the validity of the results but must now provide evi- dence tending to show that the breathalyzer device was erroneous and that the accused' could not have exceeded the allowable statutory limit. In order to obtain an acquittal, the legislation stipu- the defence argued they did not have access to the breathalyzer instruments in order to investigate their scientifi c integrity in terms of transparency and repli- cation. Th e device is not consistent and precise as there can be distortions depending on the physiology of the accused. As well, there is imprecision of one value as opposed to the recorded range. In terms of errors, the Crown argued at the Su- preme Court that if one should result, the device s blood alcohol content lates three criteria the defence must meet with the Carter defence as the second or third criteria and not the fi rst one. However, the defence must also produce evidence to demonstrate the machine malfunctioned or was op- erated improperly and that such malfunctioning or im- proper operation resulted in an erroneous reading of the instrument. For its part, the defence bar has its concerns with respect to police accountability and distributors and manufacturers not complying with the standards and procedures of these breath instruments. Th e end result is an impingement on a vested right in that there is no longer a right to raise a reasonable www.lawtimesnews.com is a logical problem inherent in the retrospective ap- plication of Bill C-2. An accused charged under the old legislation must provide evidence at trial accord- ing to the new law, which creates a nearly impossible situation. While the Crown relied on Hansard and statements from Parliament in its submissions at the Supreme Court, there is nothing from any legislator or government offi cial on the Tackling Violent Crime Act as to whether the legislation was intended to apply retrospectively. At the same time, there is no guidance providing a list of factors for trial judges to consider in deciding whether the legislation was to have immediate eff ect and should apply to cases that are still in the system. Also, in October 2007, Parliament did not send out a circular to law enforcement indicating that as of July 2, 2008, the legislation would change in these cases and that police should prepare for the disclosure requests from the de- fence. Th us, disclosure preservation practices were nev- er intended to have retrospective application. Th e Crown' likelihood of a conviction of an innocent person would be rare. To that, we must note former Supreme Court justice John Sopinka' s view of the amendments was that the am unaware of any principle of statutory interpreta- tion which sanctions breaches of the Charter, provided such breaches are rare. s statement in R. v. Bernshaw: "I " LT Esther Carenza has been working in the criminal law fi eld since 1989, primarily in the area of legal research and as a senior law clerk. She' ough Community Legal Services. s also vice chairwoman of West Scarbor-

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