Buddy got charged in a spot check.
- Thread starter fmahovalich
- Start date
Carter defence? Humbly ask if someone could give me a fairly quick and painless synopsis of what this is?
From your web definition of the "Carter Defence" "If the judge makes this seemingly easy to arrive at finding"
Good luck on the draw of that judge!
tHeres sOmeone else wHo has posted on this thread who could probably tell you which judges will go which way, but, well, at this point why would he or I want to ruin the surprise. Instead, you can rely on trusty "Legal Eagles" that have posted on here who have themselves spent thousands of hours alone in a courtroom.
Good luck on the draw of that judge!
tHeres sOmeone else wHo has posted on this thread who could probably tell you which judges will go which way, but, well, at this point why would he or I want to ruin the surprise. Instead, you can rely on trusty "Legal Eagles" that have posted on here who have themselves spent thousands of hours alone in a courtroom.
BUT YOU DON'T SEEM TO UNDERSTAND what you read.... So I'll say it ONE MORE TIME.....Under the Canadian Charter of Rights and Freedoms a person accused of whatever "criminal offence" has the right to presumption of innocence UNTIL guilt is proven in a court of law.
What I have been posting about is PRIOR to any conviction being rendered by the court.
DID YOU GET IT THAT TIME?????.... The lights are on but no one's home!!!!!
So let me try to understand - you don't like the fact that someone accused of a crime can be held in jail, without bail, until his/her trail. Is that the crux of your argument?
ok let me explain what changed and what did not
what changed from 2 hours to 3 hours (in July 2008): officer must have belief that the accused had alcohol in his body and operated/had care/control of a car within the previous 3 hours (previously 2 hours) in order to make a screening device demand (screening device is not an intoxilyzer and we are nowhere near the tests yet).
what did not change: if 1st sample taken within 2 hours since incident, lowest reading is deemed to be reading at time of offence
if 1st sample taken outside of 2 hrs, then forensic toxicologist must relay the readings back to time of offence
blood samples may be demanded where the officer has reasonable and probable grounds to believe that accused either may be incapable to provide breath samples or it would be impractical to obrain breath sample ( and of course that the offence was committed within the previous 3 hours).
so for example if an officer finds a drunk driver at the scene of accident there should be grounds to believe that it happened less than 3 hours ago to make the demand
the demand must be made as soon as practicable, and the tests should be made as soon as practicable to rely on 2 hour presumption
all the above of course is only relevant for over 80 and not for impaired
carter defence was killed in July 2008 by C-2 bill
there is some recent caselaw supporting the position that it was a legitimate defence and that legislating it out was unconstitutional, but for practical purposes this defence currently is dead
Yeah, I think I read that somewhere previous in the thread, but you gave more details as to the why behind it - Thank-you for that!. I also took the ""If the judge makes this seemingly easy to arrive at finding" with a large grain of salt considering it was part of the ad trying to sell me on hiring the firm.
http://www.lawyers.ca/carter/default.htm
Integrity of the Breath Test Program – Transparency and Disclosure
Canadian police services use scientific instruments to sample breath and analyze apparent breath alcohol concentration (apparent BrAC) in an attempt to measure blood alcohol concentration (true BAC). This approach generally will produce an accurate analysis, however, that is not always the result.
Some approved instruments, simulators, and simulator thermometers are better than others.[6] The calibration of each of these approved instruments and accessory equipment affects the accuracy and the verification of accuracy of a breath test. Police services are required to keep proper documentation of the calibration and calibration checks of each of these instruments.[7] Some police services will not disclose calibration and calibration check documents.[8]
Most police services regularly send their instruments to the factory authorized service centre for scheduled maintenance, keeping proper documentation.[9] Toronto Police Service performs its own scheduled maintenance. Some police services will disclose maintenance records, some will not.[10] In the Greater Toronto area there are senior breach technicians who make adjustments to the insides of their own instruments lacking the necessary tools to calibrate[11]. Disclosure of the maintenance log in a Brampton case[12] led to the revelation that a “chopper motor” and the “R18 resistor” had been replaced by a senior breath technician. Cross-examination at trial revealed that he had conducted his own repair to the optical bench of an IR instrument, adjusting internal voltages and standards, and thereby affecting calibration. He did not, however, verify his re-calibrations using 50, 200, 300, and acetone simulators as would have been done by the factory authorized service centre. The accuracy of breath sample analyses at ranges below 100 mg/100 mLs, above 100 mg/100 mLs, or containing an interferent, such as acetone, would thereby be compromised.
Negligent maintenance or calibration of an instrument will not be evident to the defence unless complete maintenance and calibration records are disclosed.
At least one police service has a policy that they will not permit defence professional photographers to photograph their instruments.[13] Some police services will not permit a defence expert to examine their instruments or a professional photographer to photograph their instruments.[14]
These considerations are important from a full answer and defence constitutional perspective because:
“Proper calibration and/or calibration check procedures are the primary means of assuring accuracy of the Approved Instrument, Approved Screening Device and accessory equipment at the time of use. In addition to these calibrations and/or calibration checks, formal maintenance procedures are essential to the integrity of the breath test program.”[15]
Different approved instruments have different hardware and software design. Unfortunately such design and design changes are not transparent and may not be disclosed. Approved instruments used in Ontario are not generally available for purchase or study by defence lawyers or defence experts. Defence experts are not welcome at the training programs offered by some manufacturers.[16] Police services have different protocols for procedure prior to the subject test and during the subject test. Unfortunately, such protocols are not always clear and sometimes are not disclosed. Not all breath rooms have video equipment to adequately record procedure before and during the subject test. Some breath room video cameras do not record the screen of the instrument.[17]
The original software version number of an approved instrument at the time of its evaluation and approval by the Alcohol Test Committee (with subsequent approval by the Minister of Justice) may not have been identified. The source code design of the software, including unique Canadian elements, at the time of evaluation may not have been documented. The evaluator, usually the Centre of Forensic Sciences in Toronto or the R.C.M.P., may not have retained their file[18]. Source code design may change dramatically over time affecting the capabilities of the approved instrument to deal with new physiological and environmental presentations. Software changes may not be identified, well-documented, and disclosed by the manufacturer, the Alcohol Test Committee, and the Minister of Justice . Software (also known as firmware) may vary with different provinces, among police services, and from one machine to another. Software safeguards, that we hear about every day in Court (e.g. Internal Standards on the 5000), may not have existed in the software when the approved instrument was evaluated for the Alcohol Test Committee many years ago. The original software version of an evaluated instrument and software changes should be well documented and disclosed.[19]
All of the above considerations affect the ability of an innocent person to make full answer and defence and should be subject to Charter remedies.
My experience leads me to believe that it is not safe to assume that most police services and most police officers always use properly maintained, calibrated, and calibration-checked instruments in accordance with protocol.
It is respectfully submitted that the implementation of a new section 258 evidentiary shortcut that results in “conclusive proof” unless the accused establishes a scientific explanation for an apparent BrAC - true BAC difference requires proven scientific integrity and transparency of the breath testing system. Unless there is full disclosure of the hardware and software design of the approved instrument as originally evaluated, properly documented hardware and software upgrades, availability of instruments for testing by defence experts, opportunity for defence experts to attend factory training, transparency, protocol, and documentation in maintenance and repair, and transparency, protocol, and documentation respecting calibration and calibration checks, the accused cannot make full answer and defence in a Bill C-2 world.
Integrity of the Breath Test Program – Transparency and Disclosure
Canadian police services use scientific instruments to sample breath and analyze apparent breath alcohol concentration (apparent BrAC) in an attempt to measure blood alcohol concentration (true BAC). This approach generally will produce an accurate analysis, however, that is not always the result.
Some approved instruments, simulators, and simulator thermometers are better than others.[6] The calibration of each of these approved instruments and accessory equipment affects the accuracy and the verification of accuracy of a breath test. Police services are required to keep proper documentation of the calibration and calibration checks of each of these instruments.[7] Some police services will not disclose calibration and calibration check documents.[8]
Most police services regularly send their instruments to the factory authorized service centre for scheduled maintenance, keeping proper documentation.[9] Toronto Police Service performs its own scheduled maintenance. Some police services will disclose maintenance records, some will not.[10] In the Greater Toronto area there are senior breach technicians who make adjustments to the insides of their own instruments lacking the necessary tools to calibrate[11]. Disclosure of the maintenance log in a Brampton case[12] led to the revelation that a “chopper motor” and the “R18 resistor” had been replaced by a senior breath technician. Cross-examination at trial revealed that he had conducted his own repair to the optical bench of an IR instrument, adjusting internal voltages and standards, and thereby affecting calibration. He did not, however, verify his re-calibrations using 50, 200, 300, and acetone simulators as would have been done by the factory authorized service centre. The accuracy of breath sample analyses at ranges below 100 mg/100 mLs, above 100 mg/100 mLs, or containing an interferent, such as acetone, would thereby be compromised.
Negligent maintenance or calibration of an instrument will not be evident to the defence unless complete maintenance and calibration records are disclosed.
At least one police service has a policy that they will not permit defence professional photographers to photograph their instruments.[13] Some police services will not permit a defence expert to examine their instruments or a professional photographer to photograph their instruments.[14]
These considerations are important from a full answer and defence constitutional perspective because:
“Proper calibration and/or calibration check procedures are the primary means of assuring accuracy of the Approved Instrument, Approved Screening Device and accessory equipment at the time of use. In addition to these calibrations and/or calibration checks, formal maintenance procedures are essential to the integrity of the breath test program.”[15]
Different approved instruments have different hardware and software design. Unfortunately such design and design changes are not transparent and may not be disclosed. Approved instruments used in Ontario are not generally available for purchase or study by defence lawyers or defence experts. Defence experts are not welcome at the training programs offered by some manufacturers.[16] Police services have different protocols for procedure prior to the subject test and during the subject test. Unfortunately, such protocols are not always clear and sometimes are not disclosed. Not all breath rooms have video equipment to adequately record procedure before and during the subject test. Some breath room video cameras do not record the screen of the instrument.[17]
The original software version number of an approved instrument at the time of its evaluation and approval by the Alcohol Test Committee (with subsequent approval by the Minister of Justice) may not have been identified. The source code design of the software, including unique Canadian elements, at the time of evaluation may not have been documented. The evaluator, usually the Centre of Forensic Sciences in Toronto or the R.C.M.P., may not have retained their file[18]. Source code design may change dramatically over time affecting the capabilities of the approved instrument to deal with new physiological and environmental presentations. Software changes may not be identified, well-documented, and disclosed by the manufacturer, the Alcohol Test Committee, and the Minister of Justice . Software (also known as firmware) may vary with different provinces, among police services, and from one machine to another. Software safeguards, that we hear about every day in Court (e.g. Internal Standards on the 5000), may not have existed in the software when the approved instrument was evaluated for the Alcohol Test Committee many years ago. The original software version of an evaluated instrument and software changes should be well documented and disclosed.[19]
All of the above considerations affect the ability of an innocent person to make full answer and defence and should be subject to Charter remedies.
My experience leads me to believe that it is not safe to assume that most police services and most police officers always use properly maintained, calibrated, and calibration-checked instruments in accordance with protocol.
It is respectfully submitted that the implementation of a new section 258 evidentiary shortcut that results in “conclusive proof” unless the accused establishes a scientific explanation for an apparent BrAC - true BAC difference requires proven scientific integrity and transparency of the breath testing system. Unless there is full disclosure of the hardware and software design of the approved instrument as originally evaluated, properly documented hardware and software upgrades, availability of instruments for testing by defence experts, opportunity for defence experts to attend factory training, transparency, protocol, and documentation in maintenance and repair, and transparency, protocol, and documentation respecting calibration and calibration checks, the accused cannot make full answer and defence in a Bill C-2 world.
You have the Right to be "Innocent until proven guilty" in regards to the court of law. However the Charter does not extend to the Court of public opinion.
In regards to keeping some one detained awaiting trail. There are two hearings before that can happen, the first is a show cause hearing which is usually within 24hrs of being detained. During this hearing evidence will be presented that there is enough evidence to proceed with charges, or to a bail hearing. At the bail hearing the judge will hear evidence to support lockup until trial based on risk to re-offend awaiting trail, flight risk, or a general risk to public safety. Well over 50% of all charges never make it to a bail hearing.
I didn't say that.... But we do have a Charter Right of being considered innocent UNTIL guilt is proven in a court of law.
AND as far a Fuji goes.... I give up!!!!!.... You can only whip a dead horse for so long before you figure out it ain't gonna get you no where!!!!!... Like I said before.... The lights may be on but there's definitly no one home!
Isn't it funny how you probably know he was drunk (or at least over the limit), yet everybody wants to cry innocent when they get caught. Just say you know he's guilty, but he wants to try and get off on the charge.
umm are you sniffing glue or something?
show cause hearing is the same thing as a bail hearing
you can proceed with it or kick it over to another date if you are not prepared (it would then be marked "hearing not commenced"), but it's the same damn thing and you are entitled to one hearing that has commenced and finished at the Ontario Court of Justice level
you can call it a show cause or bail, but there is as much difference as between cunt and pussy, i.e. none
AH is right here... I don't even know what you are referring to.
At the bail hearing, the Justice of the Peace will also hear evidence as to why you should be released, if it is a S.524 hearing or a Reverse Onus hearing (depending on the Accused's status before the Court, and what charges they are on (such as weapons offences)) - thought I'd point that out too.
And you have the three grounds confused. Primary, Secondary, Tertiary. You seem to have mixed them up and stated the two seperate sections of the secondary grounds as the primary and tertiary.
If you bothered to quote me in full my point actually was and is.... That you have to be one of the most obtuse posters here on Terb. I would like to refer the other viewers here to the threads that you have started on Obesity, etc, etc, etc. that have mysteriously disappeared when the "water got a bit too hot" for you.
I WILL NOT draw you a picture or lead you by the hand to explain what you obviously don't understand. That's for your mommy too do.
