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Ducharme Fox in the News

Success on Constitutional Challenge

Recent Amendments to the Canadian Criminal Code concerning impaired driving have been ruled unconstitutional by an Ontario court. This legislation was found unconstitutional because it has the effect of depriving possibly innocent individuals of the right to tender and have taken into consideration evidence that may establish their innocence.

Patrick Ducharme applied for ruling from the Court that the new legislation is unconstitutional. That application was accepted by the Honorable Justice Guy Demarco of the Ontario Court of Justice on January 24, 2011 in Windsor Ontario. It is the first and only decision to date in Canada that has declared this "get tough on crime" legislation by the Conservative Government to be unconstitutional.

Several previous decisions of the Ontario Court of Justice had ruled that this legislation was constitutionally valid.  Ducharme, however, called evidence that was different from the other cases upholding the legislation. In the case of R. v. Towle, Ducharme presented the expert evidence of Dr. Michael Ward, a toxicologist from London, Ontario.

Dr. Ward testified that the Intoxilyzer 5000C, the instrument used in Ontario and many other provinces and territories, has many flaws resulting in the instrument readings not always indicating an error even when an error has occurred. Despite this, the new legislation purports to make the findings of this instrument "conclusive proof" of the subject’s blood-alcohol concentration (BAC) as exceeding the legal limit.

Ducharme argued that this legislation has the effect of depriving possibly 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 innocence. In doing so, he argued that the legislation violates principles of fundamental justice contained in the Canadian Charter of Rights.

While the Crown called an expert of its own, Dr. Patricia Solbeck of the Center of Forensic Sciences, toxicology department, Toronto Ontario, the Crown’s expert did not totally disagree with Dr. Ward’s critique of the Intoxilyzer.

In summary fashion, Dr. Ward testified as follows:

  1. Every scientific instrument, including the Intoxilyzer 5000C, suffers from two general weaknesses, namely analytical variability inherent in the instrument, and, biological variability that is attributable to the uniqueness of the individual tested. All scientific experts in the field of toxicology agree. More specifically, the Defence expert testified;
  2. Where there is already alcohol present in room air, the instrument will report zero when room air is drawn into it, resulting in an internal adjustment being made for the measurement of the breath sample provided, without the instrument recording that this has taken place.
  3. The presence of alcohol in the subject’s mouth at the time of providing samples, often the result of vomiting or regurgitation, and common in drinking subjects, will contribute to a falsely elevated reading. While the instrument contains a mouth alcohol detector system, referred to as the "slope detector system" the operation of the mouth alcohol detector system itself is not checked when the instrument is functioning.
  4. The presence of radio waves, or radio frequency interference (RFI), emanating from nearby radio-operated devices, such as the devices police carry with them to communicate with one another, may also cause positive results of breath analysis. Again, although the instrument has an internal system designed to check for and detect RFI, there is no internal means of checking whether this detection system itself is operating properly.
  5. The device is also susceptible to chemical interference. The presence of chemicals, other than alcohol, on the breath may contribute artificially to high readings or false positive results. Acetone, for example, which is often present in the breath of persons afflicted with diabetes, will significantly elevate breath test results. The instrument is outfitted with an interferent detect and track system. When the system is functioning properly the instrument will give a result of "interfere" for many interferents. For acetone, however, the system simply adjusts the reading, purportedly to compensate for the effect of acetone. The instrument printout does not disclose whether acetone was present in a particular sample and therefore, if the detection or detraction system is not properly functioning itself, this will not show in the printout. In the result, no one knows whether or not a chemical interferent was taken into account in the reading.
  6. Another potential difficulty with the instrument is created by, what Dr. Ward described as "outliers". In addition to the biological variability and the malfunctioning of the instrument’s internal error checking systems, research demonstrates that occasionally repeated measurements of the same specific sample will result in one or more anomalous results. These anomalous results, unexplainable in and of themselves, are known as outliers. With breath tests, the discrepancy or anomaly of an outlier has been measured to be as high as 28 mg of alcohol per 100 mL of blood. With blood analysis, the discrepancy has been measured to be as high as 40 mg of alcohol per 100 mL of blood. Dr. Ward testified that fewer errors of this nature are known to occur in blood analysis than with breath analysis. Outliers are far more common in breath samples. Dr. Solbeck acknowledges the existence of outliers, but suggested that the occurrence of two outliers in succession is improbable. She did, however, concede any single test result is potentially an outlier.
  7. In addition, certain types of equipment malfunction or operator error can only be detected if the procedures of the instrument preparation and obtaining and measuring the breath samples are video and audio recorded. Ideally, such recording should show the face and keys of the instrument and record any sounds emitted during the process. Some police departments do not have any videotaping equipment in the Intoxilyzer room. Those that do, generally have the video equipment trained on the accused, rather than the device. Because Dr. Solbeck for the Crown acknowledged that that there could be instances of operator error which might not be identified on the test record of the incident, video and audio taping in order to check for malfunction or operator error the Court found to be essential. The Court also found that that police routinely videotape interviews but do not routinely videotape the functioning of the Intoxilyzer.

Consequently, in the case of an individual whose biological makeup is such that their blood to breath ratio will cause the instrument, even when functioning and operating properly, to register results that are not accurate, the new law makes it impossible for the accused person to defend himself/herself. The court found, "it is easily conceivable that in such a case the actual blood-alcohol concentration of the individual could be below 80 mg of alcohol in 100 mL of blood while the test results show a result of over 80". In these circumstances an innocent person is left without recourse because the legislation makes it impossible for the individual to show that the instrument was malfunctioning or improperly operated. And, this legislation allows this to occur even though the accused person may have available to him or her evidence to demonstrate, based upon the biological variability of the test subject, that the test readings were not accurate.

The amended sections (258 (1) (d.01) (ii) and 258 (1) (c)) make it clear that such evidence is not admissible to demonstrate the innocence of an accused person. Prior to this legislation, an accused person could provide evidence of his/her alcohol consumption, together with the expert evidence of a toxicologist to challenge the readings of the Intoxilyzer. This evidence was always referred to as "evidence to the contrary". But these sections now provide that evidence tending to show malfunction of the instrument "does not include" such evidence.

Ducharme argued that disclosure of evidence which might tend to show such malfunction is rarely available. It seldom happens that the instrument’s calibration and preparation or test preparation and testing procedure are video-recorded. He argued in this age of video-taped statements of virtually all witnesses, the failure to video and audio record the breath testing procedures should be a matter of standard police procedure. It is not.

This new law provides specifically that "evidence to the contrary" cannot be considered or used to challenge either malfunction or operator error. The Crown argued that the words, "does not include" should only be read as meaning in this context, "to consist solely of". Judge Demarco rejected this interpretation. Instead, in agreeing with the submissions of the defence, he said the legislation was overly broad. He found that the legislation has the effect of depriving possibly innocent individuals of the right to tender or have taken into consideration important innocence of establishing innocence.

Most importantly, the judge found that it is not necessary for Parliament to deprive such individuals of a valid defence in order to curtail the facility with which the previously acceptable defence had been successfully advanced. The result is a denial of natural justice to those persons who find themselves in this situation.

The judge also refused the request of the Crown to "read down the legislation" to attempt to salvage the impugned sections. The court found that to do so would be to create a new legislative scheme. To do so, he said, would cause an unwarranted intrusion into the legislative domain. In the end, Justice Demarco made the observation that the importance of the issue determined by this case may affect thousands if not tens of thousands of cases and it would, in his opinion, be very prudent that the hearing of this issue by courts of higher authority be expedited.


CIBC Run for the Cure

The CIBC Run for the Cure is Canada's largest single day, volunteer-led fundraising event dedicated to raising funds for breast cancer research, education and awareness programs.

On Sunday, October 4, 2009, several of our lawyers and staff members participated in the CIBC Run for the Cure in support of The Canadian Breast Cancer Foundation.  Despite the rainy weather, they all sustained their drive to participate in this cause.  Over $500.00 was raised by our runners to help create a future without breast cancer.

 

 


Ducharme Fox Thanks all who Supported our Donation Drive for The Society of St. Vincent de Paul

After receiving an email from one of our staff members, several organizations had volunteered their efforts to help with the collection of clothing and food in support of our donation drive to help the Society of St. Vincent de Paul get back on their feet after a devastating fire that shut down the Chilver Street store, warehouse and food bank.

During our one month drive, we were able to collect more than 45 bags of clothing, 20 boxes of other donations, 12 boxes of food and $550.00 cash donation, in addition to those donations that were brought to the warehouse and drop off bins directly.

We would like to extend a special thank you to Hilton Windsor, RBC Investment Group and the University of Windsor for their generosity and assistance with their collection of donations in support of our drive.

Ducharme Fox Seeks Community Support to Help The Society of St.Vincent de Paul

The Society of St.Vincent de Paul recently suffered a tragic fire, causing an estimated $275,000 in damages. The Ducharme Fox team is orgainizing a donation drive to rebuild and restock the shelves in this time of need. If you would like to assist in helping the association replace lost goods, you can drop off your donation at any of the drop off bins, or by visiting one of the local stores.  We will also be collecting donations of clothing and food at our office up until March 31, 2009.

 Wyandotte Store, 1074 Wyandotte St. E.   519-977-9499
 Harrow Store, 42 Centre St. W .     519-738-2958
 Leamington Store, 25 Talbot St. W.  519-326-4765
 Amherstburg Store, 263 Dalhousie St.   519-736-0089

Due to extreme smoke damage, please refrain from dropping off donations at the Chilver Road store, as they currently have no storage facility at this location.

For a complete list of bin locations, please click here. 

For a complete list of donation items, please click here.

Click here to read the Windsor Star Article

Ducharme Fox Bowls for Kids Sake

On Friday, February 27, 2009, staff and lawyers attended at Rose Bowl Lanes for a night of bowling fun while helping to raising money for the Big Brothers Big Sisters Foundation.  This is the 4th year that Ducharme Fox has participated in this event.  This year alone, they raised a total of $470.00.

  

Law Firm Volunteers at Local Food Bank

(Windsor Star Article)

Ducharme Fox LLP are proud sponsors of many local charities. They host routine dress down days to provide cash donations to local charities on a monthly basis. During the holiday season, the lawyers and staff at Ducharme Fox LLP enjoy volunteering their time to spread some holiday cheer at the St. Vincent de Paul food bank.

Several of their staff members attend the Chilver Street location and hand out grocery gift cards, candy canes and refreshments to all food bank customers. In addition, boxes of food donations are collected and each department at Ducharme Fox LLP puts together baskets for raffle. Our efforts have raised over $2,000 for the local food bank.


Ducharme Fox Supports the Children’s Aid Society

This spring, the Ducharme Fox team is proud to support the Children’s Aid Society –Summer Camp Program. The program allows children-in-care and community children ages 3-16 years to attend summer camp. The total cost of sending kids to camp is over $100,000.  In 2006, almost 400 children were given the camping opportunity at either day or overnight camps.


Ducharme Fox Raises over $1,800 for the Breast Cancer Society

Last year, the Ducharme Fox team raised over $1,800 for the Breast Cancer Society. According to the Canadian Cancer Society / National Cancer Institute of Canada, approximately 431 Canadian women will be diagnosed with breast cancer weekly in 2008 and 102 will not survive it. The team is once again planning to show their continued support to the Breast Cancer Society this summer as a sponsored charity.