The Carter Defence

Another very common defence which was consistently used from 1985 to July 2008 is what lawyers and judges refer to as the Carter defence or “evidence to the contrary” defence. In July of 2008 Parliament passed Bill C-2 which abolished the very common and successful Carter defence which was known as an “evidence to the contrary” defence. Kruse Law Firm historically had an approximately 90% success rate in wining cases using this defence.

Essentially, a Carter defence was based on the accused’s evidence concerning his or her drinking pattern, age and weight coupled with expert toxicology evidence calculating the person’s actual blood alcohol level (“BAC”) at the time of the driving and therefore constituting “evidence to the contrary.”

A Carter defence or evidence to the contrary defence basically meant the defence lawyer was trying to create a reasonable doubt that the approved instrument (an intoxilyzer or breathalyzer) was not accurate and the person’s BAC could have been below the legal limit at the time of driving.

Kruse Law Firm retained brilliant forensic toxicologists in the province to provide evidence at their clients’ trials in support of a Carter defence. Through proper witness and trial preparation, Kruse Law Firm and other top impaired driving lawyers in the province were able to consistently win over 80 cases by presenting a carefully crafted Carter defence.

To advance a Carter defence an accused did not have to prove anything in court. The Judge only had to be left with a reasonable doubt that the accused’s BAC could have been below the legal limit. A person could win their case based on a Carter defence even if the judge stated on the record that he or she did not necessarily believe their testimony. If the judge was not able to completely reject the evidence of the client and/or the other defence witnesses as to his or her drinking pattern, then the judge was left with a reasonable doubt and the charge was dismissed.

Judges often stated during their judgment regarding a Carter defence that, “I do not believe the accused, but I cannot reject his or her evidence which might reasonably be true and I am left with a reasonable doubt.” This was a very low threshold for an accused to attain. If the judge made this seemingly easy to arrive at a finding of being left in a state of reasonable doubt, the accused’s exceed charge was dismissed.

With the demise of the Carter defence, Kruse Law firm has been among the leaders in the province in devising other highly innovative ways to win over 80 cases. One of these innovations is by bringing complex technical disclosure applications in an attempt to force the Crown to provide the historical records, repair records, computer downloads etc. in an attempt to ultimately demonstrate to the judge that the breathalyzer or intoxilyzer in question was not functioning properly or being operated properly at the time the client’s breath was tested.

This type of “evidence to the contrary” attack on the breath instrument or “machine” involves a battle of experts which requires the firm’s lawyers to have detailed knowledge of the inner workings of the breathalyzer and intoxilyzer. There are very few criminal lawyers in the province who have the necessary specific knowledge and skill to mount this type of attack. Kruse Law Firm has successfully advanced these highly technical arguments in various counties throughout the province and continues to find other unique and innovative ways to fight for their clients and win their cases.

Kruse Law firm is also presently mounting various constitutional challenges across the province arguing that the Bill C-2 legislation abolishing the Carter defence is unconstitutional and individual’s charged with an over 80 offence should be allowed to advance a Carter defence. Time will tell whether these constitutional challenges will be successful as these matters are likely to be appealed through the various levels of appeal courts, up to and including the Supreme Court of Canada. However, the firm believes that the arguments set out in their various constitutional challenges have great merit and are compelling. It will likely take several years before these very complex legal issues are ultimately decided by the Supreme Court of Canada.