The Carter defence could make a return in impaired driving cases after a
Windsor, Ont., judge declared legislation that eliminated the so-called
two-beer defence to be unconstitutional.
Ontario Court Justice Guy DeMarco found amendments to the Criminal Code
that took effect 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 confirmation by a higher court in order to become
binding.
The Carter defence, which got its name from the 1985 case of R. v. Carter, allowed defendants 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 inflated the reading. Friends would often corroborate the
amount consumed, and a toxicologist would give expert evidence
calculating the accused’s corresponding blood-alcohol level at the time
of testing.
The new legislation left accused 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
instances in which an apparently properly functioning breathalyzer could
give an inaccurate reading. That could leave an innocent person without
recourse to challenge the validity of the reading.
“Regrettably, in some of its applications . . . 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 my view, this violates the
principles of fundamental justice,” DeMarco said in his ruling late last
month.
Towle’s lawyer, Patrick Ducharme, said DeMarco’s decision was
a “landmark” one. Although there have been numerous challenges to the
constitutionality of the amendments, Ducharme believes his is the first
to succeed in Ontario. He says the legislation placed too much trust in
the accuracy of the Intoxilyzer 5000C, the device used by police in
Ontario.
“The scientific community acknowledges that no
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 amendments 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 maximum
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 under 80 at the time of
testing.”
To believe the machine was unreliable was “fantasy, not reasonable 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
difficult to deny.”
DeMarco said the evidence brought before him was
significantly different to that before Duncan. Defence expert Dr.
Michael Ward, a toxicologist from London, Ont., explained 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. Radio waves and other chemicals in
the breath can also affect the reading, Ward testified. In addition, the
machine may not catch some errors by the operator, he noted. The
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 recourse 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 necessary to deprive innocent
individuals “of a valid defence in order to curtail the facility with
which the Carter defence may be successfully advanced.”
Jonathan
Rosenthal, who represented Powichrowski before Duncan, says he was
pleased to see DeMarco’s take on the legislation. “I’m very encouraged
and obviously quite pleased because I do think this law is very unfair,”
Rosenthal says. “You’ve got two judges deciding the matter in two
different ways. This may lead to confusion, of course, because you’ve
basically got competing decisions.”
But Rosenthal doesn’t expect a
resolution of the competing lines of judicial thought any time soon.
Two-and-a-half years after the legislation’s enactment, 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 effect 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 before — 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 affect. 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 authority be expedited,” he said.
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Patrick Ducharme says he has at least 20 cases that the new ruling could affect. |