Impaired Driving - The Carter Defense: Dead or Alive?

Impaired Driving

The Carter Defense: Dead or Alive?

Introduction

The landscape surrounding impaired charges has been in a state of flux recently. Fraught with a wide array of technicalities, from 1985 until 2008 a lawyer handling an impaired charge usually relied on the Carter defense. However, in 2008, as part of a ‘tough on crime’ approach that included the wide introduction of the much-debated ‘mandatory minimums’, the Harper government through their introduction of Bill C2 also significantly changed the criminal code with regards to impaired driving. No longer could one rely on the “two-beer” defense from R v Carter[1]. One had to show that a variety of factors aligned perfectly (including that there was a malfunction of the device, and that this malfunction caused the reading, and that the reading would have been below the legal limit, all while being unable to introduce any evidence to the contrary) in order to be able to defend against an impaired charge. The near impossibility of this led to many Charter challenges, culminating in the case of R v St-Onge Lamoureux being taken all the way to the Supreme Court of Canada. The ruling of that case, as well as a walk-through of all the aforementioned issues, will be addressed in this analysis.

The Law – Impaired Driving Provisions – Currently

As it stands, the provisions of the criminal code provide guidance to criminal defense lawyers when defending against an impaired charge range primarily from s.253 to s.261 of the Criminal Code[2]. S.253 addresses the general question of what “operation while impaired” includes. S.254 sets out various definitions that a defense lawyer will require, including what “approved” means in various circumstance (with regards to an approved screening device, instrument, container), or what a “qualified technician” is. Moreover, s.254 also addresses the issues of the seizure of blood in certain circumstances. S.255 addresses punishment for individuals charged under s.253 or s.254. S.256 addresses the issue of a warrant to obtain blood samples (an area of law that is very specific in and of itself – an even more technical and specialized subset of a DUI lawyer’s general arsenal). S.257 addresses the possible refusal of a medical practitioner to drawing blood as well as a limitation on both criminal and civil liability for the resulting consequences of a practitioner drawing blood under the orders of a peace officer or a warrant. S.258 addresses the issue of care and control, issues of the two hour time limit, the 15 minutes apart necessity for the breath tests, the ‘as soon as practicable’ provision as well as the formerly used ‘evidence to the contrary’ provision. S.259 looks at orders of prohibition, including discretionary orders and the definition of “disqualification”. S.260 addresses procedural issues on the making of a prohibition order, and s.261 addresses the stay of an order pending appeal.

Though an impaired charge can dove-tail with many other sections of the Criminal Code, this paper will focus on s.258, addressing the law as it used to be (the “Carter defense”), showing how and why it changed, and analyzing what the law now is.  

Pre-2008: Carter Defense (two-beer defense) – what was it? Did social perception of drinking and driving change since R v Carter?

In 1985 the case of R v Carter was the leading authority with regards to raising reasonable doubt in impaired driving charges. Defendants could raise a probable doubt about their blood alcohol content as being below the legal limit of 0.08 (80 milligrams of alcohol per 100 milliliters of blood) despite a breathalyzer indicating the contrary. The general strategy for this was that a defendant would introduce what is known as “evidence to the contrary”. A defendant would state, for example, that alcohol had been consumed just prior to the test (known as ‘Bolus Drinking’) – which would lead to a reading that was unrepresentative of their blood alcohol content at the time of drinking (as a rather unnecessary note, drinking and driving is not illegal – drinking and driving past the legal limit at the time of the operation of the motor vehicle is illegal), that they had ‘only had two beers’ (a figure that would have to have been corroborated by witnesses of the accused’s drinking as well as a toxicologist that would argue the blood alcohol content of the accused given consumption, weight, drinking habits, etc., was lower than the instrument displayed. This test would occasionally include reproduced conditions in a controlled environment whose findings would be then presented before the court).

The effect of this was that it was rather accessible for the accused to rebut the scientific instrument through what was often argued to be subjective evidence. This, however, was not seen as being in the public interest as even at the Supreme Court of Canada, drunk driving was seen as being “clearly the crime which causes the most significant social loss" (R v Bernshaw 1995). As such, in 2008, the Carter defense was effectively shot down by the Harper government through a series of amendments to the Criminal Code that, for the most part, removed the use of evidence to the contrary.

Even pre-2008 the presumption of accuracy and identity in the Criminal Code existed insofar as the breathalyzer was presumed to be accurate of one’s blood alcohol content at the time. What one could rebut, as stated above, was the presumption of identity - specifically that the blood alcohol content reading reflected the individual's real blood alcohol content at the time of the supposed offense, as well as the presumption of accuracy (that the certificate was invalid).
R v Carter [1985] O.J. No. 1390, 19 C.C.C. (3d) 174

The case of R v Carter addresses the question of what counts as evidence to the contrary with regard to an impaired driving charge. A more complicated case, Carter included the seizure of blood, its subsequent analysis by a toxicologist, and an analysis of the semantics of the limitations of the types of evidence that defense counsel may call to rebut a reading of a breathalyzer or other analytical tool that would indicate an accused’s alleged blood alcohol content at the time of the offense.

Justice Finalyson, speaking on behalf of the Court of Appeal, put forward the position that with regards to challenging a breathalyzer, “any evidence as to how much alcohol the person tested had in fact consumed is relevant evidence and if accepted can raise a doubt as to the accuracy of the breathalyzer reading.”[3]

At paragraph 19, Justice Finalyson cited Justice McFarlane to support his aforementioned position:

“It follows, in my opinion, that the concluding part of the subsection means that the result of the chemical analysis is proof of the proportion of alcohol to blood at the time of the offence in the absence of evidence that the proportion at that time did not exceed 80 to 100. Any evidence, therefore, tending to show that at the time of the offence the proportion was within the permitted limit is "evidence to the contrary" within the meaning of the subsection.”[4]

The court ruled in favor of the defense, with a phrase that any defense counsel would love to hear at trial: “Accordingly, I would grant leave to appeal, allow the appeal, set aside the order of Judge Robson and direct that the verdict of acquittal at trial be restored.”[5]

R v Bernshaw [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87

The case of R v Bernshaw addressed the issue of reasonable and probable grounds with regards to an Intoxilyzer breath demand, as well as the 15 minute delay before the issuance of an approved screening instrument demand. Despite it being a once leading a case with regards to the aforementioned areas of law, the reason for the inclusion of this case into the paper is to illustrate the beginnings of pervasive inherent institutional bias against drinking and driving, even at the level of the Supreme Court of Canada.[6] At paragraph 16 through 19, the court addresses statistical evidence of the harms of impaired driving in Canada, stating that “Statistics Canada observed that alcohol is a contributing factor in 43 percent of those motor vehicle accidents which cause death and injury…”[7]. Seemingly, the most obvious of problems with those statistics is that alcohol may be considered a “factor” even when one is below the legal limit. This shortcoming of the cited studies was not addressed at trial by the SCC in Bernshaw. Moreover, the SCC also stated that “drunk driving is clearly the crime which causes the most significant social loss” in Canada[8].

Aside from the problematic use of statistics, the strong language and the potentially inaccurate representation of facts (how does one know for sure that alcohol was a contributing factor? Is the mere presence of a certain quantity of alcohol enough to determine that it was factor automatically?), this phrase has also been quoted and relied upon by courts in Canada repeatedly since then, even as recently as last year in the case of R. v. Voerman 2012 BCPC 125 (CanLII), [2012] B.C.J. No. 921 at paragraph 18, where the court relied on the same analysis of problematic statistical data from the ‘90s to draw similar inferences. 

2008: Carter Defense – what happened?

On July 2nd 2008, as part of Omnibus legislation, the Harper Government introduced as part of their “tough on crime” agendas certain amendments to the criminal code in Bill C2, specifically introducing provisions that would enforce the applicability of the readings of these generally scientifically accepted breathalyzer machines. The provisions, the constitutionality of which was addressed in the 2012 SCC decision of R v St-Onge Lamoureux are addressed below:

For a successful rebuttal of the presumption of accuracy, pursuant to Section 258(1)(c) required that the accused must:

“(1) raise a doubt that the instrument was functioning or was operated properly, (2) show that the malfunction or improper operation of the instrument resulted in the determination that his or her blood alcohol level exceeded the legal limit, and (3) show that his or her blood alcohol level would not in fact have exceeded that limit at the time when the offence was alleged to have been committed.”[9]

Moreover, the following section, s. 258(1)(d.01), rules out the types of evidence that would have been used to show that one’s blood alcohol level would not have exceeded the limit as per s.258(1)(c). This was, in effect, the Carter defense.

“Section 258(1)(d.01) specifies the types of evidence that the accused cannot rely on to prove the above requirements, including: (1) the amount of alcohol the accused consumed, (2) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, and (3) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed.”[10]

2008 – 2011: Carter Defense – Uncertainty

However, there were many constitutional challenges to the new legislation. These challenges ultimately culminated in the above mentioned Supreme Court case of R v St-Onge Lamoureux 2012. Cases such as R v Duff 2010, and R v Powichrowski 2009 looked at the provisions and held that they were not unconstitutional. Justice Duncan in R v Powichrowski 2009 goes as far as to state that "There is probably no requirement that the law provide for any defense at all, much less one that is easily attainable"[11]. This point of view was echoed in R v Duff 2010, where Justice Roseborough held that the new provisions neither violated s.7 nor s.11 of the Charter. R v Towle 2011 looked at the 'new' Carter defense. Argued by Patrick Ducharme here in Windsor, this case was a landmark decision (the first in Ontario) that held that certain sections of the new amended Criminal Code were overbroad while attempting to place limits on the two-beer defense. As such, s.258(1)(c) and s.258(1)(d.01) were found to violate s.7 of the Charter[12]. The last bit of uncertainty came from Quebec in the form of R v St-Onge Lamoureux 2010 in the form of a trial judge decision that held that amendments to the Criminal Code as per Bill C2 did not prevent an accused from raising a “two-beer” defense as per R v Carter so as to rebut the readings of an Intoxilyzer 5000c.

R v Powichrowski [2009] O.J. No. 4424, 2009 ONCJ 490

In the case of R v Powichrowski, Justice Duncan addressed two main questions. The first was the issue of whether or not sections 258(1)(c), (d.01) and (d.1) “infringe the presumption of innocence”, either individually or as a whole, and if they do, would section 1 save them as reasonable limits?[13] The second was whether the above sections, either individually or as a whole, infringe on s.7 rights, and if so, are they saved under Section 1 of the Charter?[14]

At paragraph 65, Justice Duncan succinctly summarizes his findings, stating that no infringement of one’s s.7 or s.11d rights was found, before dismissing the application:

“In effect, the Applicant's argument is that he has a constitutional right to lead and succeed on what Parliament has declared to be an insufficient or meritless defense. There is no principle of fundamental justice that supports that contention. To the contrary, the authority of Parliament to define defenses and the authority of courts to remove from consideration those defenses that have no air of reality is well established and has never been doubted.”[15]

The truly stunning admission, as mentioned above, is Justice Duncan’s statement that “…there is probably no requirement that the law provide for any defense at all, much less one that is easily attainable”[16]. 

R v Duff [2010] A.J. No. 1115, 2010 ABPC 319

In the case of R v Duff, an application was brought that challenged the constitutional validity of sections 258(1)(c), (d.01) and (d.1) of the Criminal Code. Justice Rosborough held that parliament’s intentions were straightforward, citing the Honorable Rob Moore as an example of this: “Probably the most important change in this bill is the proposal to ensure that only scientifically valid defenses can be used where a person is accused of driving with a concentration of alcohol exceeding 80 milligrams in 100 millilitres of blood.”[17]

Despite the amendments to the Criminal Code under Bill C2 coming in after the fact, it still seems odd that Justice Rosborough would so easily ignore Supreme Court Justice Charron, speaking on behalf of the majority in R v Gibson, 2008 SCC 16, [2008] 1 SCR 397, where he stated clearly:

“…it cannot be disputed that the presumption is a legal fiction and that a breathalyzer reading that exceeds the legal limit may not be reflective of the actual concentration of alcohol in the accused’s blood at the time of the offense because it always depends on the rate at which the particular accused is metabolizing the alcohol during the relevant time period on the day in question.”

With regards to the reversal of the onus of proof, Justice Rosborough notes that it has not been reversed with the introduction of these new provisions – he states that the presumption of accuracy will fail “where there is a reasonable doubt that the approved instrument materially malfunctioned or its improper operation brought about a materially erroneous result”.[18] Apparently the difficulty of doing so is of little concern to Justice Rosborough – much as it was the case in R v Powichrowski – going so far as even to cite Justice Duncan’s sentiment that the law need not provide any defense at all, at paragraph 155. Moreover, Justice Roseborough held that parliament did not declare the “two-beer” defense inadmissible, but rather “limited its evidentiary weight in conformity with scientific evidence demonstrating its frailty”[19].

As such, Justice Rosborough held that even if the impugned sections were to be declared unconstitutional, which they weren’t, they would constitute reasonable limits and be saved under Section 1.

R v St-Onge Lamoureux 2010 QCCQ 8552, [2010] J.Q. no 10077

In the 2010 case of R v St-Onge Lamoureux, before making its way to the Supreme Court of Canada, the issue before the court was a simple case of impaired driving. However, the interesting part was that the trial judge allowed the accused to call evidence to the contrary to rebut the readings of the breathalyzer. She did so unsuccessfully, however her failure to secure an acquittal was of less significance than the relative magnitude her ability to employ the “two-beer” defense post-2008.

It is important to note that the translation of this case is done at a personal level as the original case is in French – therefore the wording in this paper may differ from the specific semantic interpretation of the trial judge.

The facts of this case are as follows: Two ladies, shared a bottle of a wine at a restaurant at about 5:15pm, while on her day off. The defendant, Anic St-Onge Lamoureux, claimed that she had not previously consumed any alcohol that day[20]. By 11:30pm when her and her friend went out again, they had two “shooters” (a mixed alcoholic drink)[21]. Shortly thereafter she was stopped by the police at a spot-check[22]. She provided three breath samples to a qualified breath technician that read 0.164, 0.124 32 minutes later, and 0.13 subsequently 26 minutes after the second demand[23]. Noting at paragraph 28 with some irony the precision of the accused’s evidence to the contrary[24], namely that she split a bottle of wine and had two shooters – mixed drinks that were made with partly Southern Comfort and partly orange juice, Justice Chapedelaine found that her evidence to the contrary was not enough to call into question the findings of the Intoxilyzer and qualified breath technician. As such, Anic St-Onge Lamoureux was found guilty of driving a vehicle with a BAC above the legal limit.

R v Towle [2011] O.J. No. 660, 2011 ONCJ 57

The case of R v Towle marks the first instance in Ontario where the amended provisions of the Criminal Code under Bill C2 were declared unconstitutional. In this Windsor case, with Patrick Ducharme acting on behalf of the defense, it was argued that sections 258(1)(c), (d.01) and (d.1) were unconstitutional and infringed both s.7 and s.11(d). Noting the weakness in a s.11(d) application, the defense invited the court to, if they wished, issue a ruling on s.7 alone. Addressing the possibility of error in the internal functioning of the Intoxilyzer 5000c from a variety of sources (including radio wave interference, ambient room air alcohol, chemical breath interference[25], etc.) coupled with the possibility of error with the internal “error-checking” mechanism[26], Justice DeMarco noted that the legislation, given the striking out of evidence to the contrary, is in effect “depriving possibly innocent individuals of the right to tender or to have taken into consideration, in the determination of whether the Crown has met its burden of establishing guilt, evidence which is probative of innocence”[27].

Applying an Oakes analysis, Justice DeMarco comes to the conclusion that this legislation would fail under the proportionality test[28]: “The complete foreclosure of a viable, legitimate defense in certain circumstances cannot be said to impair as little as possible the right to full answer and defense afforded by the principles of fundamental justice guaranteed in s. 7 of the Charter”[29]. As such, it is held that s.258(1)(c) and s.258(1)(d.01) violate s.7 of the Charter, and cannot be saved by Section 1 as reasonable limits prescribed by law[30].

2012: Carter Defense – What now?

R v St-Onge Lamoureux made its way to the Supreme Court of Canada in 2012, where it was held that s.258(1)(c) and s.258(1)(d.01) infringe s.11(d) of the Charter. An Oakes analysis held that the requirement for evidence of malfunction or improper operation of the instrument does indeed pass the minimal impairment test as well as the rational connection aspect. The second requirement under s.258(1)(c) as well as the third requirement under the same section were found to not be justified under the proportionality tests and were severed from the legislation. Currently, to succeed on an impaired driving charge one must show that there was something wrong with the way the breathalyzer functioned without employing any “Carter” techniques.

R v St-Onge Lamoureux 2012 SCC 57, [2012] S.C.J. No. 57

The case of R v St-Onge Lamoureux from Quebec in 2010 was granted leave to be appealed to the Supreme Court of Canada in 2012. The issues before the court were ones of the constitutionality of the amended provisions to the Criminal Code introduce by Bill C2 in 2008.

Addressing the issue of the permissibility of the Carter defense in the lower court decision by Justice Chapedelaine, the Supreme Court held that he had erred in his decision; however given that a finding of guilt was entered, the error was immaterial as it did not affect his decision[31]. Moving on to the constitutional issues, an Oakes analysis is preformed by the court on each of the impugned provisions.

Bringing in a similar argument to Justice DeMarco in R v Towle 2011, Justice Deschamps addresses the issue of evidence to the contrary based on the potential malfunctioning of the internals of the breathalyzer machine:

“I wish to stress, however, that it is not because the test results could differ from the blood alcohol level of the accused at the time of the alleged offence that s. 258(1)(c) infringes the right to be presumed innocent. Rather, the infringement lies in the fact that, as Parliament recognized, the instruments can malfunction or be operated improperly, and therefore that the trier of fact could have a reasonable doubt about the guilt of the accused where the only evidence before him or her consists of the test results.”[32]

Going through the Oakes analysis, Justice Deschamps concludes that the infringement of the second requirement, namely that there must be a link between the internal failing of the breathalyzer and the reading of a BAC above 0.08, of s.258(1)(c) as it currently stands “cannot be justified in a democratic society”[33].

Moving on to the third requirement of s.258(1)(c) that requires an individual to, having previously shown a malfunction in the operation of the breathalyzer, also show that their BAC was lower than 0.08 at the time of the offense, Justice Deschamps finds this also to be not justifiable under s.1 of the Charter, stating that to permit this section to stand would: “amount to saying that, where a court has a doubt about an essential element of the offence, it must nevertheless convict unless the accused can present evidence tending to show that he or she is innocent.”[34]

With regard to the first requirement under s.258(1)(c), Justice Deschamps holds that if the second and third requirements are severed, then he considers “Parliament’s response to be a measured one”[35].

Moving on to s.258(1)(d.1), the court found that it does infringe the presumption of innocence in s.11(d), however the rational connection, minimal impairment, and pressing and substantial connection aspects of the Oakes test are met, and so the provision is saved under Section 1 of the Charter[36]. The court held that s.258(1)(d.1) “strikes a fair balance between collective rights and individual rights, and is part of a broader legislative scheme designed to confirm the primacy of breathalyzer test results.”[37]

The final constitutional analysis is summed in at paragraph 101, where Justice Deschamps speaking on behalf on the majority, states that sections 258(1)(d.01) and 258(1)(d.1), and s. 258(1)(c) infringe s.11(d) of the Charter, however they are saved under s.1 after the wording is adjusted to read as follows:

“Sections 258(1)(d.01) and 258(1)(d.1), and s. 258(1)(c) after severance of the words "all of the following three things -- " and ", that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed", are justified under s. 1 of the Charter.”[38]

It is interesting to note that, with regards to the permissibility of evidence to the contrary, according to Justice Cromwell’s interpretation in the dissent, the permissibility of bolus drinking is addressed in the affirmative under s. 258(1)(d.1): “if the results of analyses show a BAC over .08, that is proof that the BAC at the time of the alleged offence was over .08, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both a BAC over .08 at the time of testing and under .08 at the time of the offence"[39]. As per Cromwell, this section allows some aspect of the Carter defense to be employed to rebut this second presumption of identity (the first being in s.258(1)(c)).[40] Essentially what this section states is that if one introduces evidence of bolus drinking, then said evidence must be consistent with the readings of the breathalyzer. Justice Cromwell goes on to elaborate, in a somewhat confusing manner at paragraph 118, that:

“s. 258(1)(d.1) permits Carter evidence to rebut this second presumption of identity, provided that the evidence is consistent with both the readings and innocence. In other words, the admission of this evidence for the purpose of rebutting this presumption is premised on the accuracy of the readings […] if an accused raises a reasonable doubt by means of Carter evidence under s. 258(1)(d.1), the presumption of identity in s. 258(1)(c) does not continue to operate.”[41]

Conclusion

Since 1985, legislation regarding impaired driving has consistently involved, and arguably in an arbitrary fashion as well[42]. The Carter defense, which allowed an individual to rebut the readings of an Intoxilyzer through the introduction of evidence to the contrary, fell in 2008 through the passing of Bill C2 under the “tough on crime” stance by the Harper government. With the effective elimination of the Carter defense, defense lawyers did not stay silent. Cases such as Powichrowski 2009, Duff 2010, and Towle 2011, are examples of where the defense bar has attempted to bring back Carter by claiming that the new provisions of Bill C2 that amended the Criminal Code are unconstitutional. All but Towle 2011 failed. Other cases, such as R v St-Onge Lamoureux 2010, went on to show that in places as remote as Quebec[43] the Carter defense still lived! Making its way to the Supreme Court of Canada, R v St-Onge Lamoureux 2012 currently stands as the guiding case with regards to what is permissible in impaired driving cases – and despite the fact that Carter lives no more – the striking down of the second and third requirements of s.258(1)(c) as unconstitutional and unjustifiable in a democratic society provided breathing room once again for defense counsel in impaired driving charges. Now, the law as it stands revolves around the analysis of countless pages of disclosure about the maintenance records of Intoxilyzers – as proving a potential malfunction is currently the way[44] to defend against an impaired charge.

Works Cited
 

Criminal Code of Canada RSC 1985, c C-46
R v Carter [1985] O.J. No. 1390, 19 C.C.C. (3d) 174
R v Bernshaw [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87
R v Gibson, 2008 SCC 16, [2008] 1 SCR 397
R v Powichrowski [2009] O.J. No. 4424, 2009 ONCJ 490
R v Duff [2010] A.J. No. 1115, 2010 ABPC 319
R v St-Onge Lamoureux 2010 QCCQ 8552, [2010] J.Q. no 10077
R v Towle [2011] O.J. No. 660, 2011 ONCJ 57
R. v. Voerman 2012 BCPC 125 (CanLII), [2012] B.C.J. No. 921
R v St-Onge Lamoureux 2012 SCC 57, [2012] S.C.J. No. 57

Footnotes

[1] The first instance of the “two beer” defense is hard to pinpoint, however, as mentioned at paragraph 16 in R. v. Powichrowski, [2009] O.J. No. 4424, 2009 ONCJ 490, the first appellate decision is believed to be R. v. Davis, (1974) 14 CCC 2d 513 (BCCA), a decision that was relied upon in R v Carter.

[2] Criminal Code of Canada RSC 1985, c C-46

[3] Carter, para 15.

[4] Carter, para 19.

[5] Carter, para 20.

[6] One could argue that this was one of the beginnings of a paradigm shift towards tougher interpretation of legislation, as well as a shift in public opinion away from the rights of the accused in impaired driving cases. This is also correlated with the foundation and campaigning of MADD Canada (early 1990s). An admitted long shot at best given Canadian precedent on challenges for cause, I unsuccessfully attempted to argue this societal bias in a factum for a challenge for cause motion for a trial in Windsor while summering as a 1L with Michael Gordner. Also being involved with Hicks Adams LLP that summer, upon consulting Colin Adams, I was informed that, statistically speaking and on a balance of probabilities, “hell would freeze over” before such a motion would be successful. In this case the justice ruled, however, that proper instructions to the jury would overcome any potential bias they may have. It is important to note that this is not a denial of the stigmatization of and underlying bias against drinking and driving (even at below the legal limit of 0.08).

[7] Bernshaw, para 18.

[8] Bernshaw, para 16.

[9] St-Onge Lamoureux 2012, para 17.

[10] St-Onge Lamoureux 2012, Appendix.

[11] Powichrowski, para 68.

[12] Towle, para 50.

[13] Powichrowski, para 2.

[14] Powichrowski, para 2.

[15] Powichrowski, para 65.

[16] Powichrowski, para 68.

[17] Duff, para 61.

[18] Duff, para 55.

[19] Duff, para 170.

[20] St-Onge Lamoureux 2010, para 15.

[21] St-Onge Lamoureux 2010, para 16.

[22] St-Onge Lamoureux 2010, para 17.

[23] St-Onge Lamoureux 2010, para 2.

[24] The exact wording reads: “Compte tenu de la précision relative de la preuve de l'accusée à l'égard de la quantité d'alcool consommé…” with the footnote elaborating on the wording of “précision relative” as referring to: “L'accusée relate qu'elle a partagé une bouteille de vin avec un ami et qu'elle a consommé deux shooters préparés par un établissement licencié, sans plus de précisions.”

[25] Towle, paras 7, 8, 9, 10.

[26] Towle, para 14.

[27] Towle, para 40.

[28] Towle, para 46.

[29] Towle, para 49.

[30] Towle, para 50.

[31] St-Onge Lamoureux 2012, para 100.

[32] St-Onge Lamoureux 2012, para 28.

[33] St-Onge Lamoureux 2012, para 59.

[34] St-Onge Lamoureux 2012, para 63.

[35] St-Onge Lamoureux 2012, para 67.

[36] St-Onge Lamoureux 2012, paras 88, 89, 90.

[37] St-Onge Lamoureux 2012, court summary para 9.

[38] St-Onge Lamoureux 2012, para 101.

[39] St-Onge Lamoureux 2012, para 117.

[40] St-Onge Lamoureux 2012, para 118.

[41] St-Onge Lamoureux 2012, para 118.

[42] As has been mentioned in numerous analyses and case-law as well – it is odd that a defense (or rather, semantically, evidence to the contrary – though practically this semantic distinction is rather irrelevant) that has functioned for nearly three decades is suddenly deemed in its entirety to no longer be sufficient through the introduction of Bill C2.

[43] The case was in fact so remote that it was in an entirely different language, and was not even translated into English.

[44] Cases that involve demands for blood to determine BAC are more complicated and have their own procedure – however these are outside the scope of the analysis.