The accused, Anic St-Onge Lamoureux, was charged with impaired driving and had sought at trial to advance a so called “Carter defence,” arguing that the Breathalyzer results obtained from her did not accurately represent her blood alcohol level.
Recent legislative amendments to Section 258(1)(c) of the Criminal Code had limited the Carter defence by placing an onus on the accused to prove not only that the Breathalyzer results in question were unreliable, but also that their actual blood alcohol level was below the legal limit of 0.08 at the time the sample was obtained. The majority of the Supreme Court of Canada found that this additional onus was an unreasonable violation of the presumption of innocence enshrined in Section 11(d) of the Charter of Rights and Freedoms:
The inquiry into whether the impairment of the right to be presumed innocent is minimal confirms that the requirement of evidence that the blood alcohol level of the accused was under the legal limit is not justified. I reiterate that this requirement is in addition to the requirement of showing that the instrument malfunctioned or was operated improperly. If the accused has already identified a defect that could cast doubt on the reliability of the results, it is difficult to justify requiring the court to nevertheless accept that the results have probative value if the accused has produced no evidence regarding his or her blood alcohol level. This amounts 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. I accordingly find that the third requirement of s. 258(1)(c) cannot be justified under s. 1 of the Charter.
This is a significant vindication of the presumption of innocence enshrined in common law and in the Charter. This presumption requires the Crown to prove all elements of the offence in question. Laws which require accused persons to prove themselves innocent run contrary to this presumption and are therefore unconstitutional.
In the facts of Ms. St-Onge Lamoureux’s specific case, however, the Supreme Court found that the constitutional issue made no difference due to the trial judge’s findings of fact:
In light of the evidence, Judge Chapdelaine concluded that the respondent’s testimony about her alcohol consumption was not sufficiently serious or probative to raise a reasonable doubt. Finding that the qualified technician’s explanations were sufficient and that the presumptions established in s. 258(1)(c) and s. 258(1)(d.1) Cr. C. applied, he accordingly convicted the respondent of operating a vehicle with a blood alcohol level over the legal limit. In short, Judge Chapdelaine erred in holding that the respondent could rebut the presumption of accuracy of s. 258(1)(c) Cr. C. by presenting a Carter defence, but that error did not affect his conclusion, since, when all is said and done, he did not believe the respondent. The conviction is therefore upheld.
This goes to show that impaired driving charges in Canada are by no means easy to defend, even with the presumption of innocence intact. The short-lived amendments to 258(1)(c), however, made defending oneself virtually impossible.
Decided by the Supreme Court of Canada on November 2, 2012.
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