‘Mr. Carter’s not dead’

“Mr. Carter’s not dead and he’s not going to be dead for a long time.”
That was the word from Toronto lawyer Jonathan Rosenthal at the recent Criminal Lawyers’ Association conference during a session about defences in impaired driving cases.

The comments come after defence lawyers found themselves hampered in their efforts to help their clients when the federal government eliminated provisions stemming from the so-called Carter defence last year in Bill C-2.

It previously allowed accused people to present evidence to the contrary that they only had a small amount of alcohol - two drinks was the common claim - before the alleged offence and that therefore the breathalyzer police used when stopping them must have malfunctioned.

Under the Carter defence, lawyers would typically call experts, such as a toxicologist, to argue the device had to have been wrong given factors such as the amount of alcohol consumed and the body’s personal alcohol absorption rate.

But now that they’re unable to use that line of reasoning, they’re turning increasingly to using technical factors to prove that the breathalyzer wasn’t working properly. As a result, Rosenthal said that while Carter “may have taken a few bullets,” efforts to prove evidence to the contrary are still ongoing.

But to do so, lawyers have to get disclosure of the breathalyzer data. It will show, for example, whether the sensor was working properly or whether police calibrated the device against an external standard to ensure it was giving correct readings when the accused blew into it. Defence counsel will also often look at maintenance records to gauge how often police checked the instrument as well as examine whether the breathalyzer was an approved device for taking samples.

Those in the court system, however, have struggled with the new regime as defence lawyers, Crown prosecutors, and judges have differing views about how to apply it. Speaking at the CLA conference during a panel discussion about Carter, Crown attorney Philip Perlmutter argued defence lawyers are going too far in asking for disclosure of breathalyzer data.

Referring to case law, Perlmutter said that information that’s outside the police investigative file is essentially third-party material that’s not automatically subject to the liberal interpretation of Crown disclosure obligations set out in R. v. Stinchcombe.

It was on this question that the panel discussion became somewhat contentious. Rosenthal, for example, noted that as a result of the disclosure questions, lawyers in some cases are spending up to five days in court litigating just that issue. As a result, Justice Joseph Kenkel of the Ontario Court of Justice, also speaking on the panel, noted that some cases are being stayed due to s. 11(b) Charter of Rights and Freedoms applications over unreasonable trial delays.

Perlmutter, however, responded that many of the disclosure requests simply aren’t relevant to the case and, in his view, are a bid to get the result Kenkel referred to. “What I think is irksome for the administration of justice is the only reason it’s being brought up is to get an 11(b),” he said.

In Toronto, meanwhile, Rosenthal pointed out that authorities are taking a liberal approach to the disclosure issue. “In the Toronto region now, they will give you every single thing you ask for,” he said, noting that other areas of the province aren’t nearly as generous.

But in part, that’s due to the fact that Toronto police have computer software that allows them to extract breathalyzer data, something other forces don’t have. As to questions over whether that’s fair, Perlmutter said he’s not concerned. “My answer is it would be unfair if all this information was relevant. Since it isn’t, it isn’t unfair at all.”

Perlmutter, of course, was raising another area of contention in the Carter debate, which is whether defence lawyers
really find any evidence from the breathalyzer to refute the charges. Noting that most other countries don’t allow for defences along the lines of Carter, Kenkel advised lawyers to tread carefully in relying too much on attacking the devices.

“Approach all these cases with caution,” he said, adding that in the United States, individual counties often use different machines and that in some cases police calibrate them only once a year. In Canada, he pointed out, police regularly test them against an external standard, which makes it difficult to mount a successful defence by attacking the breathalyzer.

“Evidence to the contrary is simply not going to work,” Perlmutter said, urging defence lawyers to instead look for Charter breaches or care-and-control issues to fight impaired driving charges.

Defence counsel, however, aren’t giving up. In a paper titled “Keeping Evidence to the Contrary Alive After Bill C2,” lawyer Craig Bottomley noted counsel may want to go even further in disclosure requests by asking for video evidence as well.

“In 2000, Boris Piko was convicted of ‘over .80,’ and the trial judge dismissed his argument that a police failure to capture the seizure of his breath on video was a failure to preserve the best objective evidence as to the manner in which Mr. Piko was walking, his speech, and his balance,” Bottomley wrote.

“This decision was upheld on appeal. Now that the amendments to section 258 require the defence to show that the machine was malfunctioning or operated improperly, it would seem that a videotaped recording is absolutely necessary to determine how the technician was using the machine.”

Another key area of debate post-Carter is whether the changes to the law are retrospective, which would mean that cases that began before the amendments took effect in 2008 would also fall under the new rules. According to Bottomley, a crucial question is whether the changes are substantive or procedural.

“If it is deemed to be a change of substance in any way, then it is not retrospective and it is effective only with regard to those charges laid after the coming into force of the amending legislation,” he wrote.

As Bottomley noted, Bill C-2 itself didn’t say the provisions were retrospective. As a result, lawyers have been battling over the issue in court where, according to Bottomley, judges have held “20 times that the legislation is retrospective and 12 times that it is not.” Still, he noted that more recent decisions have followed the latter line of reasoning.

Questions surrounding the Carter defence, then, continue to come up in the courts. Lawyers may not be raising the two-drink argument but they’re not giving up on finding evidence to the contrary. But while Rosenthal insists that Carter isn’t dead, Perlmutter has a quick response to declarations about his fate: “He’s waiting to take your children home from school by driving.”

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