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

[Wetcoaster]

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/news/politics/story/2012/11/02/pol-supreme-court-drunk-driving.html

The text of the cited decisions:

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

R. v. Dineley,2012 SCC 58 http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12656/index.do

[Buddhas Hand]

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

[Wetcoaster]

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

[Buddhas Hand]

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 .

[DonLever]

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.torontosun.com/2012/11/02/supreme-court-rules-accused-drunk-drivers-must-prove-breathalyzer-defective

[Buddhas Hand]

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

[Wetcoaster]

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.

[Wetcoaster]

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 .

[Buddhas Hand]

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.

[DonLever]

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.

[Wetcoaster]

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