HOW HAS BILL C-2 AFFECTED THE CARTER DEFENCE?
On July 2, 2008 the government made a series of changes to the drinking and driving laws in Canada, known as Bill C-2 or the Tackling Violent Crimes Act.
Unfortunately, Bill C-2 very clearly abolished the traditional evidence to the contrary or Carter defence for all people charged with over 80 who were charged either on or after July 2, 2008. Frankly, the government and many others throughout Canada perceived that too many people charged with drinking and driving offences were winning their cases based on a Carter defence (some people refer to this somewhat sarcastically as the “two beer defence”). Parliament therefore decided to make the drinking and driving laws tougher.
The July 2008 Bill C-2 amendments also did the following:
- Implemented new compulsory roadside, investigative and screening tests for alcohol and drug detection (see s. 254(2) and 254(2.1) of the Criminal Code re physical co-ordination tests);
- Provided for new secondary evaluation procedures for alcohol and drugs which also compulsory at the police station (see s. 254(3.1) of the Criminal Code;
- Created 5 new offences relating to various types of demands and also a new offence of “over 80 mgs.” occasioning death.
- Increased the punishments for impaired and over 80 cases.
The vexing question is how does Bill C-2 affect cases in the court system where people were arrested and charged before July 2, 2008 (i.e. before Bill C-2 was enacted).
When Bill C-2 was enacted on July 2, 2008, it sparked extensive and time consuming litigation in the courts to answer this very complex legal question: Do the Bill C-2 amendments apply to people who were charged with offences which occurred before July 2, 2008? This ongoing litigation is expensive and time consuming. Many individuals in the justice system feel that this has wasted valuable time and court resources.
In other words, are the Bill C-2 amendments retrospective? If the courts ruled that the amendments were retrospective, then a person charged before July 2, 2008 would not be allowed to present a Carter defence at his or her trial which takes place on or after July 2, 2008.
| The Ontario OVI attorneys at the Law Offices of Kruse Law Firm have extensive experience in defending impaired care or control, operating while impaired and other drunk driving offences. |
There are literally hundreds of rulings from different judges throughout Ontario and Canada regarding whether the Bill C-2 amendments are retrospective or prospective. In Ontario, many judges at the Ontario Court of Justice (“OCJ”) level have ruled that the amendments were retrospective (i.e. a person charged with over 80 before July 2, 2008 would not be allowed to advance a Carter defence). Other OCJ judges ruled that the amendments were prospective (i.e. a person charged with over 80 would be able to present a Carter defence at their trial which took place after July 2, 2008).
On July 24, 2008 the Ontario Superior Court of Justice in the matter of R. v. Dinely (on appeal from an Ontario Court of Justice ruling) found the relevant Bill C-2 amendments are prospective. In other words, the Superior Court sitting on appeal of a lower court ruling, found that a person who is charged with over 80 before July 2, 2008 is allowed to advance a Carter defence if their trial occurs on or after July 2, 2008.
Dinely will remain the law in Ontario unless and until another Ontario Superior court judges finds differently or the Ontario Court of Appeal eventually finds the Bill C-2 amendments are retrospective. The expensive and time consuming litigation will continue throughout Canada. This begs the question: why didn’t Parliament simply declare in the Bill C-2 legislation their clear intent to make Bill C-2 either retrospective or prospective?
The bottom line as of today is this. If you were charged with an over 80 offence before July 2, 2008 in Ontario, you can present a Carter defence at your trial unless and until Dinely is over ruled. However, If you were arrested and charged with over 80 on or after July 2, 2008 you are not allowed to present a Carter defence.
The Bill C-2 amendment has the following affect for everyone charged on or after July 2, 2008:
Your BAC (i.e the reading on the breathalyzer or intoxilyzer) at the time of the breath test will be accepted by the judge as your actual blood alcohol concentration unless you can show all of the following three things:
- your BAC would not in fact have been over 80 mgs. at the time of the offence (i.e. I only drank ‘two beers’ and a toxicologist testifies I would have been below the legal limit of 80 mgs. of alcohol in 100 mls. of blood at the time of driving)
- secondly, the approved instrument was malfunctioning or was not properly operated by the qualified breath technician (i.e. instrument error or operator error); and
- thirdly, the malfunction or improper operation caused your BAC to be mistakenly measured as over 80 mgs. of alcohol in 100 mls. of blood
In other words not only do you have to present a traditional Carter defence, but you also have to show that the approved instrument malfunctioned or was operated improperly and that this malfunction or improper operation resulted in an incorrect reading. Before Bill C2, in advancing a Carter defence, you did not have to point to either instrument or operator error. This complicates the defence of an over 80 matter. Now, more than ever, a person charged with a drinking and driving offence needs an experienced impaired driving lawyer to defend their rights such as one of the lawyers at Kruse Law firm.
There are many impaired driving lawyers who believe the new Bill C-2 amendment abolishing the traditional Carter defence may be open to a constitutional challenge to strike down the legislation as being unconstitutional. It remains to be seen whether the anticipated constitutional challenges will be successful. One thing for sure is the litigation in the courts regarding the effect and constitutionality of Bill C-2 will go on for years.
