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What Happened To The Carter Defence?

I want to talk to you today about a very interesting topic and that is what happened to the old Carter defence? That’s a defence that used to be run a lot over 80 cases in the province and I’m going to talk to you about that today.

What happened to it? Because it was a very effective defence. So, I have to give you a little bit of history. In 1985, there was a case called Regina v Carter which went to the Ontario Court of Appeal. And that case basically said this, first of all, it became that we euphemistically called the two beer defence and I’ll get what that means in a second. But the case basically stood for this proposition, if an accused, is charged at that time with an over 80 case. They were entitled to come to court to say, “Look, I only had two beer. Or, I only had three beers.” They brought their buddies, they said we’re drinking beers and rounds. You hire a toxicologist to say, “Look, this is a six foot, 26-year old man. If he had three beers, his reading would have been below the legal limit. It would have been between say 20 milligrams and 60 over a number of hours.” And at the time the, the breath test was taken, the police were saying it was like 120.

You didn’t even have to attack the machine. You didn’t even have to show the machine was accurate. The court would just look at the accused’s testimony and said, “look, is he a credible witness? Has he raised a reasonable doubt? I don’t necessarily believe him. He’s probably lying, in fact. But, but, I can’t completely reject his evidence.”

If the judge said, “Well, it raised a reasonable doubt. I’m going to find him not guilty.” That was the Carter defence. It was extremely effective in, in Ontario. In fact, in other provinces as well. What happened was, we were getting such a high percentage of wins in the province from competent DUI lawyers, who you know restrict their practice or do a lot of DUI cases. The Parliament eventually said, “Look, we need to get rid of this defence. We’re getting pressure from, you know, pressure groups such as”, and quite properly so” I might add and in my opinion. Mothers against drunk driving, there’s been deaths before and mayhem on the highways. And why are they winning all these cases with someone simply coming to court to say they had to or three beer. That’s the political aspect of that. 

In, in 2008 then, we largely abolish the Carter defence. There’s very narrow exceptions to that and it’s a much different defence now. I don’t even want to call the Carter defence and it’s so difficult to bring now. You know it’s rarely brought. It, I mean I suppose there’s a few examples of material.

But right now, in Ontario, you can still come to court and say, “Look, after 2008, I had two or three beer, or four beers. Here’s my toxicologist to say I’m below the legal limit.” But you also have to point to machine error—that the Intoxilyzer wasn’t, it was malfunctioning somehow, the Intoxilyzer wasn’t prepared properly etcetera, with all the procedures in Intoxilyzers. So, very difficult defence to bring. And additionally, you have to show that the machine air, coupled with your drinking pattern, led you to below the legal limit. So, Parliament largely abolished it, maybe in some narrow cases, you can still bring it. 

There’s one exception, though. And in a typical over 80 case, the first breath sample at the police station, ideally should be brought within two hours—two hours from the time of driving to the first breath sample. If it’s not, if it’s beyond that two hours, past the two hours, you can still bring the old Carter defence. 

But what a judge has been, so you don’t need to go through the new law and you’re back to the old law—post two hours. Which sounds great except, if you look at the case law in the province since 2008, very few people have been successful. Even on the old Carter defence with a post two-hour reading. So, in other words, judges are saying, “Well, politically, Parliament threw it out. Am I really going to back to the two beer defence?” 

There’s been some judges brave enough to do that. I mean, there’s been some notable exceptions. But right now, I would say, politically in the province, if you’re past two hours, it’s going to be still very difficult to win the case. I don’t say don’t bring it because there are some judges who might still follow the old Carter law in that regard. 

Having said that, don’t give up in your case. There’s all sorts of other defences. You don’t necessarily have to rely on the Carter defence. That’s what we used to rely on a lot. But, there’s a myriad of other defences and you may have a winning case. So, don’t give up.

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