Will Carter live again?

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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