Jump to content

Welcome to canucks.com Vancouver Canucks homepage

Photo

Supreme Court of Canada Strikes Down Some Drinking and Driving Sections of the Criminal Code


This topic has been archived. This means that you cannot reply to this topic.
10 replies to this topic

#1 Wetcoaster

Wetcoaster

    Canucks Hall-of-Famer

  • Members
  • PipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPip
  • 40,454 posts
  • Joined: 26-April 04

Posted 02 November 2012 - 12:09 PM

The SCOC ruled that the reverse onus provisions are unconstitutional and that once a defendant has proven a breathalyzer machine malfunctioned (or was misused) that is all that is required. It is not necessary to prove a high reading was the result.

The Supreme Court of Canada has struck down some sections of the Criminal Code dealing with drinking and driving.

Three years ago, the government amended the law making it more difficult to fight driving-under-the-influence charges.

Under those new rules, anyone challenging a drunk-driving charge after testing over the legal limit on a roadside breathalyzer had to prove the machine malfunctioned or was misused, and that a high reading was the result.

Following that, the defendent had to prove further that they wouldn't have been drunk given the amount of alcohol they consumed — the so-called "Carter" defence.

Lawyers argued this reverse onus violates Canadians' Charter rights — and the principle of presumed innocence.

In a 5-2 decision, the Supreme Court partially agreed.

The court said Friday that once a defendant has proven a breathalyzer machine malfunctioned the rest doesn't matter.

But the court ruled that the onus of proof remains on the defendant to prove the breathalyzer or test was faulty.

The ruling stems from a case involving a Quebec woman who had argued the new law violated her constitutional rights by barring her from presenting a Carter defence. The trial judge agreed sections of the law were unconstitutional but still convicted her.

The woman paid her fine, but Quebec Crown prosecutors appealed on the basis that the application of the law needed clarifying.

The court ruled Friday that requiring a defendant to both prove that a breathalyzer had malfunctioned or been misused and establish a causal connection to a high reading "constitutes a serious infringement of the right to be presumed innocent," an infringement that "cannot be justified in a democratic society."

In a related case, R. v. Dineley, the court restored the acquittal of a man whose case was on adjournment when the law was changed to eliminate the Carter defence as an independent defence against a drunk-driving charge.

The court, in a split 4-3 ruling, decided the retroactive application of the legislation to his case substantially affected his rights.


http://www.cbc.ca/ne...nk-driving.html

The text of the cited decisions:

R. v. St‑Onge Lamoureux, 2012 SCC 57 http://scc.lexum.org.../12655/index.do

R. v. Dineley,2012 SCC 58 http://scc.lexum.org.../12656/index.do

To err is human - but to really screw up you need a computer.

Always listen to experts. They'll tell you what can't be done and why. Then do it.

Quando Omni Flunkus Moritati

Illegitimi non carborundum.

Never try to teach a pig to sing - it wastes your time and annoys the pig.

#2 Buddhas Hand

Buddhas Hand

    Canucks First-Line

  • Members
  • PipPipPipPipPipPipPipPipPipPipPipPip
  • 6,216 posts
  • Joined: 19-December 11

Posted 02 November 2012 - 12:46 PM




As the TAC advertisments state , ONLY BLOODY IDIOTS DRINK AND DRIVE .

I think it's rad when balls beats natural talent

Shaun Palmer

 

The Real war is not between the east and the west. The real war is between intelligent and stupid people.

Marjane Satrapi


#3 Wetcoaster

Wetcoaster

    Canucks Hall-of-Famer

  • Members
  • PipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPip
  • 40,454 posts
  • Joined: 26-April 04

Posted 02 November 2012 - 01:04 PM

http://www.youtube.com/watch?v=ZVqcUjnxA1o&feature=player_embedded


As the TAC advertisments state , ONLY BLOODY IDIOTS DRINK AND DRIVE .

BC's former Solicitor General Rich Coleman (and who used to be an RCMP member) disagrees and had this to say about our legislation when it was criticized:

"I think people don't understand they can go in and have a couple of glasses of wine with dinner and still leave and be OK," Coleman said, adding that public misunderstanding of the law has contributed to lower alcohol sales at drinking establishments across the province.


http://www.thenownew...l#ixzz15Bjaixhb

To err is human - but to really screw up you need a computer.

Always listen to experts. They'll tell you what can't be done and why. Then do it.

Quando Omni Flunkus Moritati

Illegitimi non carborundum.

Never try to teach a pig to sing - it wastes your time and annoys the pig.

#4 Buddhas Hand

Buddhas Hand

    Canucks First-Line

  • Members
  • PipPipPipPipPipPipPipPipPipPipPipPip
  • 6,216 posts
  • Joined: 19-December 11

Posted 02 November 2012 - 01:20 PM

Giving up drinking alcohol is one of the best decisions i have made in my life .

What do you think about people that drink and drive wetcoaster ?

And what do you think the punishment should be for a person that kills another while driving under the influence .

I think it's rad when balls beats natural talent

Shaun Palmer

 

The Real war is not between the east and the west. The real war is between intelligent and stupid people.

Marjane Satrapi


#5 DonLever

DonLever

    Canucks Third-Line

  • Members
  • PipPipPipPipPipPipPipPipPipPip
  • 3,664 posts
  • Joined: 11-December 08

Posted 02 November 2012 - 01:26 PM

Isn't your title misleading? The Supreme Court did not strike down some of the drinking and driving sections of the criminal code.

Actually they upheld the new laws by determining the new law is a reasonable violation of the right to be presumed innocent until proven guilty. In effect they sided with the government by closing a loophole where defence lawyers automatically challenge the validity of the machine testing results.

http://www.torontosu...lyzer-defective

Edited by DonLever, 02 November 2012 - 02:11 PM.


#6 Buddhas Hand

Buddhas Hand

    Canucks First-Line

  • Members
  • PipPipPipPipPipPipPipPipPipPipPipPip
  • 6,216 posts
  • Joined: 19-December 11

Posted 02 November 2012 - 01:36 PM

BC's former Solicitor General Rich Coleman (and who used to be an RCMP member) disagrees and had this to say about our legislation when it was criticized:

"I think people don't understand they can go in and have a couple of glasses of wine with dinner and still leave and be OK," Coleman said, adding that public misunderstanding of the law has contributed to lower alcohol sales at drinking establishments across the province.


http://www.thenownew...l#ixzz15Bjaixhb


Even Social Drinking Increases Risky Behavior

By Buddy T, About.com GuideMay 29, 2008

brain imaging study has found that after consuming alcohol, even social drinkers find it difficult to tell the difference between threatening and non-threatening social stimulus. They show decreased sensitivity in the brain regions involved in detecting threats and increased activity in the regions involved in reward.




"At one end of the spectrum, less anxiety might enable us to approach a new person at a party," said Marina Wolf, PhD in a news release. "But at the other end of the spectrum, we may fail to avoid an argument or a fight."
Using 12 healthy participants who drink socially, the researchers used used functional magnetic resonance imaging (fMRI) to study activity in emotion-processing brain regions during alcohol exposure. After taking alcohol or a saline solution intravenously, they were shown images of fearful facial expressions, signaling a threatening situation.
No Response to Threats

When the participants were not receiving alcohol, the images spurred greater activity in the brain regions associated with fear and avoidance, but when the participants were intoxicated, those brain regions showed no increased activity.
As previous studies have done, the fMRI study showed that alcohol activated striatal areas of the brain that are important components of the reward system.
"By showing that alcohol exerts this effect in normal volunteers by acting on specific brain circuits, these study results make it harder for someone to believe that risky decision-making after alcohol 'doesn't apply

I think it's rad when balls beats natural talent

Shaun Palmer

 

The Real war is not between the east and the west. The real war is between intelligent and stupid people.

Marjane Satrapi


#7 Wetcoaster

Wetcoaster

    Canucks Hall-of-Famer

  • Members
  • PipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPip
  • 40,454 posts
  • Joined: 26-April 04

Posted 02 November 2012 - 01:50 PM

Isn't your title misleading? The Supreme Court did not strike down some of the drinking and driving sections of the criminal code.

Actually they upheld the new laws by determining the new law is a reasonable violation of the right to be presumed innocent until proven guilty. In effect they sided with the government by closing a loophole where defence lawyers automatically challenge the validity of the machine testing results.

Nope not misleading.

If you read the decision you would have noted that some sections were struck down as the media reports have also stated.


As the majority wrote a statutory presumption violates the right to be presumed innocent if its effect is that an accused person can be convicted even though the trier of fact has a reasonable doubt. In view of the mechanism for applying the statutory presumptions established in s. 258(1)(c), ss. 258(1)(c) and 258(1)(d.01), they infringe s. 11(d) of the Charter.

Section 258(1)(c) of the Criminal Code as amended contained three separate and cumulative new requirements that the accused must satisfy to rebut the presumptions of accuracy and identity. One was saved under S.1 but the other two were struck down.
To err is human - but to really screw up you need a computer.

Always listen to experts. They'll tell you what can't be done and why. Then do it.

Quando Omni Flunkus Moritati

Illegitimi non carborundum.

Never try to teach a pig to sing - it wastes your time and annoys the pig.

#8 Wetcoaster

Wetcoaster

    Canucks Hall-of-Famer

  • Members
  • PipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPip
  • 40,454 posts
  • Joined: 26-April 04

Posted 02 November 2012 - 02:00 PM

Giving up drinking alcohol is one of the best decisions i have made in my life .

What do you think about people that drink and drive wetcoaster ?

And what do you think the punishment should be for a person that kills another while driving under the influence .

My personal choice is never to drive if I have consumed any alcohol. I take a cab, have a sober driver or use my car service that will come and drive me home in my own vehicle.

However that is not what the law in BC requires. The law allows drivers to consume alcohol and drive as long as they are not impaired.


For the offence of impaired driving causing death the Criminal Code provides for a maximum term of imprisonment of life – since we do not have the death penalty that seems the top of the punishment scale.
To err is human - but to really screw up you need a computer.

Always listen to experts. They'll tell you what can't be done and why. Then do it.

Quando Omni Flunkus Moritati

Illegitimi non carborundum.

Never try to teach a pig to sing - it wastes your time and annoys the pig.

#9 Buddhas Hand

Buddhas Hand

    Canucks First-Line

  • Members
  • PipPipPipPipPipPipPipPipPipPipPipPip
  • 6,216 posts
  • Joined: 19-December 11

Posted 02 November 2012 - 02:13 PM

My personal choice is never to drive if I have consumed any alcohol. I take a cab, have a sober driver or use my car service that will come and drive me home in my own vehicle.

However that is not what the law in BC requires. The law allows drivers to consume alcohol and drive as long as they are not impaired.


For the offence of impaired driving causing death the Criminal Code provides for a maximum term of imprisonment of life – since we do not have the death penalty that seems the top of the punishment scale.


I think that this is a sensible decision .

I think it's rad when balls beats natural talent

Shaun Palmer

 

The Real war is not between the east and the west. The real war is between intelligent and stupid people.

Marjane Satrapi


#10 DonLever

DonLever

    Canucks Third-Line

  • Members
  • PipPipPipPipPipPipPipPipPipPip
  • 3,664 posts
  • Joined: 11-December 08

Posted 02 November 2012 - 02:22 PM

Nope not misleading.

If you read the decision you would have noted that some sections were struck down as the media reports have also stated.


As the majority wrote a statutory presumption violates the right to be presumed innocent if its effect is that an accused person can be convicted even though the trier of fact has a reasonable doubt. In view of the mechanism for applying the statutory presumptions established in s. 258(1)(c), ss. 258(1)(c) and 258(1)(d.01), they infringe s. 11(d) of the Charter.

Section 258(1)(c) of the Criminal Code as amended contained three separate and cumulative new requirements that the accused must satisfy to rebut the presumptions of accuracy and identity. One was saved under S.1 but the other two were struck down.


I understand what you are saying but the media is running with the section that has been upheld. The Toronto Sun headline is "Accused Drunk Drivers Must Prove Breathalyzer Defective".

http://www.torontosu...lyzer-defective

#11 Wetcoaster

Wetcoaster

    Canucks Hall-of-Famer

  • Members
  • PipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPip
  • 40,454 posts
  • Joined: 26-April 04

Posted 02 November 2012 - 02:27 PM

I understand what you are saying but the media is running with the section that has been upheld. The Toronto Sun headline is "Accused Drunk Drivers Must Prove Breathalyzer Defective".

http://www.torontosu...lyzer-defective

One of the reasons I make it SOP to read the originating source material whenever possible.
To err is human - but to really screw up you need a computer.

Always listen to experts. They'll tell you what can't be done and why. Then do it.

Quando Omni Flunkus Moritati

Illegitimi non carborundum.

Never try to teach a pig to sing - it wastes your time and annoys the pig.




Canucks.com is the official Web site of The Vancouver Canucks. The Vancouver Canucks and Canucks.com are trademarks of The Vancouver Canucks Limited Partnership.  NHL and the word mark and image of the Stanley Cup are registered trademarks and the NHL Shield and NHL Conference logos are trademarks of the National Hockey League. All NHL logos and marks and NHL team logos and marks as well as all other proprietary materials depicted herein are the property of the NHL and the respective NHL teams and may not be reproduced without the prior written consent of NHL Enterprises, L.P.  Copyright © 2009 The Vancouver Canucks Limited Partnership and the National Hockey League.  All Rights Reserved.