Theresa-Anne Kramer woke up in fear Friday that the country’s highest court would set the fight against drunk driving back a few steps by reinstating two well-known defences used by drunk drivers to gain acquittals.

But the Montreal spokesperson for Mothers Against Drunk Driving was relieved to hear the so-called “two beer” and “last drink” defences would stay shelved, in accordance with 2008 amendments to the Criminal Code. The advocacy group has been asking for the changes for 11 years.

A legal expert, who did not want to be named, called the judgment “revolutionary.”

“It’s a huge blow to drunk driving because it finally recognizes the scientific reliability of the breathalyzer machine,” he said.

A study commissioned by the federal Department of Transport showed that the two beer, or Carter, defence — where an accused would say he or she only had two drinks and the breathalyzer test must be wrong — resulted in a high rate of acquittal. Many accused also questioned the validity of breathalyzer results by saying his breath smelled of alcohol because he had a drink before getting in the car.

All the accused had to do was raise reasonable doubt in a judge.

“The purpose of this statutory amendment was to remedy a situation that was common before it came into force: test results could be rejected on the basis of testimony that was considered subjective,” wrote now-retired justice Marie Deschamps in the 5-2 decision. “The amendment was a response to the serious disconnect that existed in the fact that the Carter defence had a high success rate despite the recognized scientific reliability of the results.”

Kramer said she was “consoled” that the high court upheld the amendment that said defendants only have to prove that a machine was defective or wasn’t operated properly, without showing precisely how a malfunction resulted in a false reading.

“It’s a scientific instrument so it’s pretty hard to prove there was something wrong with it,” she said.

In a second judgment released Friday and based on a case in Ontario, the Supreme Court ruled that the 2008 provisions are not retroactive to those who had already been charged with impaired driving at the time the new law came into effect.

The two-beer defence challenge was based on a case in Quebec. While it was being heard, impaired driving cases were put on hold, but the Supreme Court stipulated that such cases couldn’t now be thrown out because of unreasonable delay.

Kramer said she hopes the new law will cut down on the number of drunk driving fatalities in Canada – which have remained steady at about four a day for at least two decades.

She said there are also between 180 and 200 injuries a day as a result of impaired driving. One brain injury in eight in Canada is caused by a drunk driver — a tragedy that also costs about $1 million in medical bills, she said.

Source: The Montreal Gazette


Last updated on: 2015-06-21 | Link to this post