What prosecutors and police mockingly refer to as the “two beer” defence, but the defence bar reverently term the “Carter” or “evidence to the contrary” defence” , was significantly weakened, if not eliminated by the passing of the Tackling Violent Crime Act in 2008. The mind set behind these amendments are perhaps best revealed by this extract from the Justice Canada website:
Allowing only scientifically valid defences to be used as evidence to avoid conviction for driving with a blood-alcohol concentration over 80, thereby reducing the number of individuals who can avoid conviction on technicalities (e.g., the “two-beer defence”) http://www.justice.gc.ca/eng/news-nouv/nr-cp/2008/doc_32273.html
Under the old law, evidence to the contrary was any evidence that tended to raise a reasonable doubt that the accused was over the legal limit at the time of the alleged offence. Typically, this involved the accused and any corroborative witnesses (ie. drinking buddies) to give evidence concerning consumption, followed by an alcohol expert to calculate what the accused’s expected blood alcohol level would be at the time of the offence. If a judge was satisfied that reasonable doubt arose on the accepted evidence the accused was entitled to an acquittal. Well this is “SO” not happening under the new legislation.
The relevant portions of the amendments read as follows:
258(1)(c): where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3),
. . .
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed.
s. 258(1)(d.01): for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of
(i) the amount of alcohol that the accused consumed,
(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or
(iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed.
258(1)(d.1): if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both
(i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and
(ii) the concentration of alcohol in the accused’s blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken. [emphasis added]
In basic terms the above amendments now require the accused to call evidence “tending to show” all of the following:
- the approved instrument malfunctioned or was operated improperly;
- the malfunction or improper operation was such that it caused the “over .08″ result;
- and, the accused would not have been over the legal limit at the time of the alleged offence.
Further, s. 258(1)(d.01) makes clear traditional “evidence to the contrary” cannot be used to show that a machine may have malfunctioned or been operated improperly.
Section 258(d)(1) preserves the availability of an attack on the “presumption of identity” (the presumption which relates the presumed accuracy of the readings at the actual times taken back to the time of the offence) by calling traditional evidence to the contrary, but only if that evidence accords with the machine’s readings at the time of testing. Accordingly, not only would the evidence have to tend to show that the accused was under at the actual time of driving, his evidence would have to be consistent with the readings at the time of testing. This sub-section accordingly preserves defences related to post-offence drinking or bolus consumption, albeit with this significant caveat.
The first battle over these amendments occurred over the issue of retrospectivity as there were no transition provisions in the amendments. In R. v. Dineley, 2009 ONCA 814 (CanLII) the Ontario Court of Appeal found the legislation did have retrospective effect, rejecting the defence argument that it should be prospective because it has effectively removed or rendered nearly impossible the defence:
 With respect, these descriptions strike me as both speculative and overstated. The Carter defence has not been virtually eliminated, neutered or abolished. It has been changed, but it survives in a different form, subject as always to the ingenuity of defence lawyers and the new jurisprudence that the courts will inevitably enunciate.
A number of other Appeal Courts have heartily concurred: R. v. Gartner, 2010 ABCA 335 (CanLII); R. c. Loiseau, 2010 QCCA 1872 (CanLII); R. v. Truong, 2010 BCCA 536 (CanLII).
The second battle of course has been over the constitutionality of the provisions themselves. To date no Courts of Appeal have ruled on the issue, but litigation has literally been raging across the trial and summary conviction appeal battle fields. Only a few conflicting decisions from these lower courts have been rendered to date. Here are two starkly opposing decisions as a sampler of the divide that exists on this issue.
In R. v. Duff 2010 CarswellAlta 1962 (Alta. Prov. Ct.) Rosborough, J. rejected the defence argument that the new sections violated either sections 7 or 11(d) of the Charter,
155 At the outset, I would express my agreement with the observation by Duncan J. in Powichrowski that, “There is probably no requirement that the law provide for any defence at all, much less one that is easily attainable,” (at para.68). I am not satisfied, however, that the defence can not adduce evidence of instrument malfunction or operator error. Either or both may be demonstrated by reference to disclosure materials or by cross-examination of the QT. The fact that there may be a limited number of cases where malfunction or error can be demonstrated speaks more to the efficacy of the breath/alcohol testing protocol than it does to an unacceptable limitation on the accused’s ability to make full answer and defence. It is also apparent from the judgment in Kasim that the ‘possibility’ of evidence tending to show acting as a defence has already been demonstrated. [emphasis added – ouch!]
In R. v. Towle 2011 CarswellOnt 1128 (Ont. Court of Justice) the court found that sections 258(1)(c) and 258(1)(d.01) do violate section 7 of the Charter but upheld 258(1)(d.1). The Court found the provisions overly broad in their objectives to limit the Carter defence, noting inter alia,
24. The first two of these evidence requirements address the so-called presumption of accuracy whereas the third addresses both the so-called presumption and accuracy and the presumption of identity. It will be readily observed that in the case of an individual whose biological makeup is such that their blood to breath ratio will cause the instrument, when functioning and operating properly, to register a result which is not accurate, it is impossible to satisfy the first evidentiary requirement of s 258(1)(c); that is, that the instrument was malfunctioning. It is easily conceivable that in such a case the actual blood alcohol concentration of the individual could be below 80 milligrams of alcohol in 100 milliliters of blood while the test results showed a result of over 80.
25. In such a case, an innocent person would be left without recourse by virtue of being unable to show that the instrument was malfunctioning or improperly operated in as much as the instrument would have been functioning properly in accordance with how it was programmed. This would occur notwithstanding the availability of evidence to demonstrate that based upon the biological variability of the test subject the test readings were not accurate.
To end the madness of what amounts to hundreds if not thousands of outstanding challenges and specialized disclosure applications, the Supreme Court of Canada has agreed to hear the challenge case of R. v. Anic St-Onge-Lamoureux (33970), a trial level decision from Quebec, with the Dineley supra retrospectivity case on October 13, 2011.
Anic St-Onge-Lamoureux, upheld the amendments from a challenge under sections 7, 11(c) and 11(d) of the Charter, albeit upon the following read-down conditions:
- that s. 258(1)(c) was constitutional provided that the words “all of the following three things” were severed together with the phrase “and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;
- and that s. 258(1)(d.1) was valid so long as subparagraph (ii) was severed.
While not a total defence victory, Anic St-Onge-Lamoureux if upheld would be a significant blow to the prosecution.