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article imageSupreme Court of Canada makes it easier to fight breathalyzer

By Arthur Weinreb     Nov 3, 2012 in Crime
Ottawa - While the changes are not expected to affect many cases, the court found portions of the 2008 law infringed the presumption of innocence. But the Supreme Court upheld an important change that eliminated the "two-beer" defence.
The decision in the case of R v. St.-Onge Lamaoureux was handed down yesterday. The court ruled some of the changes to the Criminal Code. found in the Tackling Violent Crimes Act, passed by the federal government in 2008, violated Canada's Charter of Rights and Freedoms.
Under the 2008 amendments, once prosecutors proved that a person provided breathalyzer readings that exceeded 80 milligrams of alcohol in 100 millilitres of blood, the person would be convicted of the offence of over 80 unless he or she was able to adduce evidence of three things.
In order to be found not guilty of the charge, the person would first have to adduce evidence that the breathalyzer reading was not accurate. They would have to show that either the machine was not calibrated properly or the operator erred when administering the test. But even if they could do that and raise a reasonable doubt as to the proper working of the breathalyzer, that was not sufficient to result in an acquittal.
The accused would then have to adduce evidence that the error was such that it caused not only a faulty reading, but one that made the machine register a reading that exceeded 80 milligrams. If that hurdle was met, the accused would then have to go on and call evidence to show if the tests had been conducted properly, the result would have been a determination that their blood alcohol level was 80 milligrams or less.
Before the courts, it was argued all three of these requirements breached section 11(d) of the Charter. Section 11(d) provides everyone has the right to be presumed innocent until proven guilty according to law. But none of the rights in the Charter are absolute; section 1 of the document states all rights are subject to reasonable limits prescribed by law that are demonstrably justified in a free and democratic society.
The court applied section 1 and upheld the requirement that the accused must adduce evidence of the breathalyzer's malfunction. But the other two requirements; that the person call evidence to show the machine or operator error resulted in a higher reading and that the person's blood alcohol level would have been 80 or under, were struck down.
The net effect of this decision is that once a person adduces evidence and the judge or jury has a reasonable doubt that the breathalyzer readings were correct, the accused must be acquitted.
Even the court acknowledged the changes made will affect very few cases and Justice Deschamps wrote that "the existence of a defence must not be confused with how often those presenting it are successful."
The federal government considered the decision a win because the Supreme Court upheld the elimination of what is known as the "two-beer" defence.
As reported by the Globe and Mail, prior to the passing of the Tackling Violent Crimes Act, accused persons could call evidence of how much alcohol they consumed and when they consumed it. A toxicologist would then be called and give evidence that given that consumption, the breathalyzer reading would not have exceeded 80 milligrams. If that evidence raised a reasonable doubt, the accused would be acquitted. The court upheld the abolition of this defence; the only way to dispute the breathalyzer readings now is to raise a reasonable doubt as to the functioning of the machine or the operator. The two-beer defence often led to acquittals.
Patrick Ducharme, one of the lawyers who argued the case, was quoted in the Windsor Star as saying lawyers can now be expected to demand maintenance logs from prosecutors and make the Crown prove the machine was in working order when the breath tests were administered.
More about Supreme court of canada, breathalyzer, presumption of innocence, drunk driving canada, Charter of Rights and Freedoms
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