The Carter "defence" as used by many lawyers in the past has been eliminated by the amendments to section 258(1)(c) by Bill C-2 in July 2008. The question is: "How will the Supreme Court of Canada react to Bill C-2?" In particular if the new 258(1)(c) requires evidence under "thing 2" of causation between the operator error or machine malfunction and the difference between true BAC and BrAC how can ANY problem with the alcohol standard or the simulator ever be a defence? Both R. v. Powichrowski (on constitutionality in the OCJ) and R. v. Dinely (in the ON CA) imply that lack of calibration check reliability is still a defence under 258(1)(c). How can this be if "thing 2" is constitutional?
Following a traffic accident, the accused was transported to a local hospital where a blood sample was taken for medical purposes. The police obtained a warrant for a blood sample from the accused and were provided with the sample taken for medical purposes. Upon further investigation by the Centre of Forensic Sciences, it was found that the blood alcohol concentration exceeded 80 milligrams per 100 milligrams of blood. The Centre for Forensic Sciences opined that the accused had consumed the equivalent of seven bottles of beer at the time the sample was taken. The accused testified that he had consumed only three beers over a four-hour period. The expert from the Centre of Forensic Sciences further opined that if the same individual had consumed three beers over the reported period, his blood alcohol level would be �near zero�. Crown had conceded at trial that the only evidence of impairment was the blood-sample reading.
Evidence showing the amount of alcohol consumed is relevant to the charge of having a blood alcohol level of over 80 milligram. If the evidence of the accused is accepted, the accused is not obliged to speculate where the error might have occurred.
the learned trial judge accepted (or at the very least did not reject) the evidence of the appellant as to the amount of alcohol that he had consumed and that raised a doubt in his mind as to both the charge of impairment and the accuracy of the reading of the blood sample .... Crown conceded that the only evidence of impairment was the blood-sample reading... evidence given by the appellant at the trial as to his alcohol intake was inconsistent with that reading... conceded by the expert witness from the Centre of Forensic Sciences that the quantity of alcohol that the appellant swore to drinking would have resulted in no reading at all