The Constitutionality of the Federal Government’s “Tackling Violent Crime Act or Bill C-2 – An Amendment to the Criminal Code” is being tested in the Courts.

Update:

Further to the page found on this site Samples of Bodily Fluids:

The Tackling Violent Crime Act provides the police with better tools to detect and investigate drug-and alcohol-impaired driving and enhanced penalties for impaired driving, specifically by:

  • Authorizing peace officers to conduct roadside sobriety tests, and authorizing peace officers (who are trained as Evaluating Officers) to:  (a) test whether a driver is impaired by a drug, or a combination of alcohol and a drug, and (b) to take samples of bodily fluids to confirm the presence of the impairing drug;
  • Making it an offence to refuse or fail to comply with police demands for physical sobriety tests or bodily fluid samples. The offence would be punishable by the same Criminal Code penalty as refusing a demand for a breath test for alcohol — a minimum $1,000 fine for a first offence, with a maximum penalty of 18 months imprisonment, or if the prosecutor proceeds by indictment, five years;
  • Making it an offence to cause an accident resulting in death or bodily harm while over 80, or to refuse a demand for tests or samples when the operator knows or ought to know they have caused an accident resulting in death or bodily harm, which carries a maximum penalty of life imprisonment ;
  • Allowing only scientifically valid defences to be used as evidence to avoid conviction for driving with a blood-alcohol concentration over 80, thereby reducing the number of individuals who can avoid conviction on technicalities (e.g., the “two-beer defence”); and increasing the penalties for impaired driving:

    • 1st offence, minimum penalty increased from $600 to $1000.
    • 2nd offence, minimum penalty increased from 14 days in jail to 30 days.
    • 3rd offence, minimum penalty increased from 90 days in jail to 120 days.

Bill C-2 (also referred to as the “Tackling Violent Crime Act”) see link.

On January 12, 2009 two lawyers (Alan Young and Joseph Neuberger) were in the Superior Court of Justice in Toronto, representing three men charged with having “unlawful blood alcohol levels”. It is the position of both of these defence lawyers that an amendment to the Criminal Code of Canada – Bill C-2, specifically “Allowing only scientifically valid defences to be used as evidence to avoid conviction for driving with a blood-alcohol concentration over 80, thereby reducing the number of individuals who can avoid conviction on technicalities (e.g., the “two-beer defence”)” is unconstitutional. This amendment, to the Criminal Code of Canada, came into force on July 2, 2008.

It is normally the onus of the Crown to establish his or her case in criminal proceedings. If the Crown is relying upon a machine to prove an element of the charge or the operator of that machine, the Crown must lead evidence and prove his/her allegations. This amendment of the Criminal Code, now states that if the accused wants to challenge a breathalyzer result, the onus is on him or her to provide the court with technical evidence proving the equipment was malfunctioning or wasn’t operated properly.

Before the July 2, 2008 amendment to the Criminal Code of Canada (Bill C-2) came into force, defendant’s accused of driving with more than .08 milligrams of alcohol in 100 millilitres of blood — particularly if they were only marginally over the limit — would often argue they had consumed just two beers. They might also say they drank the last one not long before the breath test, which could have resulted in more alcohol in their breath than in their blood.

Both Young and Neuberger have started up the steep hill, towards the Supreme Court of Canada, because they believe this provision of the Criminal Code is unconstitutional because it no longer allows the defendant to raise reasonable doubt with regard to the validity of a breathalyzer result by calling evidence about the defendant’s pattern of alcohol consumption.

Section 11 (d) of the Charter of Rights and Freedoms stills gives those charged the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.

See the Department of Justice Web page Tackling Violent Crime Act.

Source – see link

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