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In the ever increasing complexity of Criminal Law, the statutory provisions for Over 80 prosecutions deserve special mention. There are fewer areas of the Criminal Code which govern more cases, and the Criminal Code has had ongoing revisions to allow for the breath test results to be admissible in Court without the Crown having to call expert evidence. The latest such amendment, and a substantial one at that, was Bill C-2, which on July 2, 2008 significantly altered the manner in which an accused could raise a reasonable doubt about his blood alcohol content (BAC) as evidence by the Breathalyzer readings. Prior to that date it was open to an accused to lead ‘evidence to the contrary' about his or her alcohol consumption in the relevant time period, and call a defence expert witness to give an opinion on the accused’s BAC at the time of the incident. If the cumulative effect of that defence raised a reasonable doubt, then Over 80 charge was dismissed. This was known as the “Carter” defence, although one Brampton judge, perhaps wryly, referred to this as the “two beer defence”. Bill C-2 amended the evidence to the contrary provisions  by providing that evidence to the contrary, and therefore a reasonable doubt about the breath readings, would be raised if the accused showed three things: i) that the approved instrument was malfunctioning or operated improperly; ii) that the malfunction or improper operations resulted in an Over 80 reading from the accused; and iii) that the accused’s BAC at the time of the offence was under 80. Whereas the Carter defence was relatively straightforward and relatively simple, C-2 added two statutory components; attack on the machine or its operation, and real effect arising from that.
Bill C-2 was a game changer in criminal courts, not the least because there was a diversity of judicial opinion about whether the new Over 80 provisions applied retroactively or prospectively. More importantly, the new C-2 provisions set a the bar for evidence to the contrary much higher, and not surprisingly attracted constitutional scrutiny. In November the Supreme Court of Canada rendered its opinion on the constitutionality of C-2, in a case from Quebec R. v.St. Onge Lamoureux. There the court saw two out of the three the new provisions as unconstitutional, and struck them down. According to the majority, it was appropriate to require the accused to show evidence to the contrary by showing malfunction in the machine or improper operation. Conversely, it was a violation of the presumption of innocence to require the accused to show that a malfunction or improper operation of the breathalyser resulted in a reading of Over 80. Similarly, it was unconstitutional to require the accused to present evidence that his BAC was under 80 at the time of the incident if it was already shown that the machine was malfunctioning or improperly operated.
While the Court left evidence to the contrary in s. 258(1) as meaning only that there is a malfunction or improper operation of the Breathalyzer, it did not give much guidance as what constituted a malfunction. Given the Court’s majority opinion that there need not be evidence that the malfunction or improper operation resulted in a falsely high reading, I would argue that the Court is signalling to trial courts that the malfunction or improper operation need not be serious in order to qualify as evidence to the contrary. This issue, however, seems ripe for further litigation.
Also in issue is disclosure. After July 2, 2008 there has been a lack of uniformity about whether the Crown would disclose maintenance and previous test records for the Breathalyzer in a given case. Again, judicial opinion was divided on that point. The Supreme Court in St. Onge Lamoureux found that “the prosecution must of course disclose certain information concerning the maintenance and operation of the instrument…”, and some Ontario Crown offices have taken this to heart, but not all. A province wide policy regarding expansive disclosure of breathalyser instrument maintenance and test logs has yet to be announced.
What is clear from the Court’s ruling in St. Onge Lamoureux is that parts of Bill C-2 have been clipped from s. 258(1)(c). What is unclear, and remains to be litigated, is what malfunction or improper operation means in law, and what disclosure is now relevant in law.