The Lawyers Weekly - October 1, 2010

Impaired
Continued From Page 1

strate that an approved breathalyzer instrument malfunctioned violated the Charter.

“Despite the fact that a judge
found that the law was uncon-
stitutional and in the other case
partially unconstitutional, the
law is presumed to be valid and
constitutional as long as a rul-
ing is not rendered by a higher
court that deals with the consti-
tutional issues,” noted Marco
Labrie, a Montreal criminal
lawyer who represented the
Barreau du Québec as an inter-
venor in the case presided by
Judge Lortie.

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the alcohol consumed would have been absorbed and eliminated by the accused’s body.

Bill C- 2 limits the use of “ evidence to the contrary” to evidence tending to show that the breathalyzer was malfunctioning or was operated improperly. Now the defence must not only prove the accused was under the limit at the time of driving, the accused must also prove how the machine malfunctioned and that the malfunction resulted in a reading over the limit by the machine.

Bill C- 2 also “leads one to
believe” that breathalyzers are
infallible machines, points out
Judge Lortie. But evidence pro-
vided by three experts led Judge
Lortie to find that some errors
made by breathalyzers are not
immediately detected, that the
machines are not governed by
mandatory standards, that they
are not as precise as blood sam-
ples, and that jurisprudence has
recognized its “fallible character.”
“The accused is at the mercy of
the machine,” said Judge Lortie.
“In fact, as demonstrated by the
experts, the machine, while reli-
able, is not infallible. Moreover, at
times it is used incorrectly. Beyond
that, under the new regime, evi-
dence of a malfunctioning of the
machine or an erroneous use of
the machine is no longer suffi-
cient: the accused must also estab-
lish causation.”
Aside from underlining the
fallibility of breathalyzers,
Montreal criminal lawyer Eric
Downs believes that the value
of Judge Lortie’s ruling rests
with its detailed analysis of the
presumption of innocence,
which he describes as the “heart
of the ruling.”
“It’s all very well to put in place
presumptions that are in essence
legal shortcuts to help the pros-
ecution build its case, but one
must ensure that an individual
who is believed by the judge should
not be declared guilty” as is now
the case, said Downs, who repre-
sented the QADL.

Robert Solomon, the national director of legal policy for Mothers Against Drunk Driving, is concerned that “some people will point” to Judge Lortie’s judgment and attempt to apply it outside Quebec.

“The amendments to the Criminal Code do not preclude the Carter defense,” said Solomon. “They just say certain things that will not be considered in and of themselves, evidence to the contrary. I don’t see why that violates the presumption of innocence.” 