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Section 48 Comedy Gold
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PostPosted: Mon Jul 06, 2009 6:34 pm 
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Section 48(6) says you can request a second test and s. 48(6.2) says immediately upon being requested to do so by the police officer.

Section 48(6) does allow the cop to request a second test; it only allows the driver to request it.


Opportunity for second analysis

48(6) Where an analysis of the breath of a person is made under subsection (2) and registers “Warn” or “Alert” or otherwise indicates that the concentration of alcohol in the person’s blood is 50 milligrams or more of alcohol in 100 millilitres of blood, the person may require that a second analysis be performed if the person requests the second analysis immediately after the police officer requests the surrender of his or her licence under subsection (2).

Screening device, instrument used for second analysis

(6.1) The second analysis must be performed with a different approved screening device than was used in the analysis under subsection (2) or, if the police officer thinks it is preferable, with an instrument approved as suitable for the purpose of section 254 of the Criminal Code (Canada).

Second analysis governs

(6.2) Where a person provides a sample of breath for the second analysis requested under subsection (6) immediately upon being requested to do so by the police officer, the result of the second analysis governs and any suspension resulting from the analysis under subsection (2) continues or terminates accordingly.


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PostPosted: Mon Jul 06, 2009 6:52 pm 
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Setion 48(6.1) says a second analysis must be performed with a different approved screening device, or if the police officer thinks it is preferable, with an instrument approved as suitable for the purpose of section 254 of the Criminal Code.

Instrument approved as suitable for the purpose of section 254 of the Criminal Code are only allowed to be used for purposes or s. 253 of the Criminal Code.

Screening devices and approved instrument are two separate and different pieces of machinery.

Using an "approved instrument" under the Code triggers all the presumption clauses under s. 258.

HTA

48(6.1) The second analysis must be performed with a different approved screening device than was used in the analysis under subsection (2) or, if the police officer thinks it is preferable, with an instrument approved as suitable for the purpose of section 254 of the Criminal Code (Canada).

Criminal Code

"approved instrument" means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada.


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PostPosted: Mon Jul 06, 2009 7:27 pm 
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Impaired operation or impaired care and control are mens rea offences.

The province impaired related sections under HTA s. 48 are also mens rea. But the province improperly treats it as an absolute liabilty offence.

Mens rea offence place the burden and standard of proof on the Province.

No hearing is ever provided to the accused and the Province licence suspension is thus not legal.

Section 48(9) violates the Charter and is of no force or effect.

Once a license has been issued, the right to use one's skill and ability to drive is protected under s. 7 of the Charter and cannot be taken away except in accordance with the principles of fundamental justice.

Section 48(8) articulates the words "absence of proof to the contrary."

The expressions “evidence to the contrary” in Code s. 258(1)(c), “any evidence to the contrary” implicit in s. 258(1)(g) and “evidence tending to show” in s. 258(1)(d.1) reflect this same standard.

Proof to the contrary is akin to the aforementioned Code sections and the difference in wording is not meaningful for the purpose of determining what type of evidence will rebut the presumption, the standard of proof or who bears the burden of proof.

The standard of proof that must be met to rebut the presumption of accuracy is reasonable doubt. The trier of fact does not have to be satisfied on a balance of probabilities and the accused has no burden of proof.

The Province bears the burden and the burden never shifts to the accused.

The HTA provides no principles for determining what evidence is admissible. One cannot point to any particular part of the range of possibilities to constitute evidence to the contrary. One must look at the evidence; that is the whole range of possibilities.

The choice whether to submit to a rebuttal belongs to the accused and he or she retains the right to introduce such evidence despite its weaknesses.

However, no hearing is even provided to an accused, the government never discharges its burden of proof, the standard of proof has NEVER been met since the short-term suspensions were introduced in the early '80s, and thus, the short-term suspensions are not constitutional.

Calibration of screening device

(7) For the purposes of subsection (2), the approved screening device shall not be calibrated to register “Warn” or “Alert” or to otherwise indicate that the concentration of alcohol in the person’s blood is 50 milligrams or more of alcohol in 100 millilitres of blood if the concentration of alcohol in the blood of the person whose breath is being analyzed is less than 50 milligrams of alcohol in 100 millilitres of blood. 2007, c. 13, s. 10.

Same

(8) It shall be presumed, in the absence of proof to the contrary, that any approved screening device used for the purposes of subsection (2) has been calibrated as required under subsection (7).

No appeal or hearing

(9) There is no appeal from, or right to be heard before, the suspension of a driver’s licence under this section, but this subsection does not affect the taking of any proceeding in court.


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PostPosted: Mon Jul 06, 2009 7:43 pm 
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HTA s. 48 relies on s. 254 of the Criminal Code in enforce its short-term suspensions. Each section of 254 requires the peace officer to reasonable grounds to demand a breath test.

The words reasonable grounds bears a burden and standard of proof.

The Province bears the burden and the burden never shifts to the accused.

The standard of proof is reasonable doubt.

And as explianed by the Supreme Court of Canada in R. v. Bernshaw, [1995] 1 S.C.R. 254, the test for reasonable and probable grounds has both a subjective and objective component.

http://scc.lexum.umontreal.ca/en/1995/1 ... 1-254.html

"The Criminal Code provides that where a police officer believes on reasonable and probable grounds that a person has committed an offence pursuant to s. 253 of the Code, the police officer may demand a breathalyzer. The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief: R. v. Callaghan, [1974] 3 W.W.R. 70 (Sask. Dist. Ct.); R. v. Belnavis, [1993] O.J. No. 637 (Gen. Div.) (QL); R. v. Richard (1993), 12 O.R. (3d) 260 (Prov. Div.); and see also R. v. Storrey, [1990] 1 S.C.R. 241, regarding the requirements for reasonable and probable grounds in the context of an arrest....[para. 48]

[also notice the court only mentions an offence under s. 253]

However, once again, no hearing if ever provided to the accused, the government has never discharged its burden of proof, the standard of proof has never been met, yet short-term suspensions and car impoundments have illegally occur since the early '80s.



254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

Video recording

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).

Samples of breath or blood

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and

(b) if necessary, to accompany the peace officer for that purpose.

Evaluation

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

Video recording

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).

Testing for presence of alcohol

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of an approved instrument.

Samples of bodily substances

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or

(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.


Last edited by Lawman on Tue Jul 07, 2009 1:15 am, edited 2 times in total.

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PostPosted: Mon Jul 06, 2009 8:08 pm 
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If you actually read s. 254 you can see by the construction of the provisions that s. 254 is a total stranger to HTA s. 48.

Section 254 only applies to s. 253 of the Criminal Code and the province is barred from using the breath test results to enforce its short-term suspensions.

Only s. 254(2)(b) could remotely be argued to apply to the province.

However, 254(2)(a) directly refers to s. 254 subsection (3) or (3.1), and subsection (3) or (3.1) only apply to offence commited under s. 253 of the Criminal Code. Therefore, it can be inferred that s. 254(2)(b) also only applies to s. 253 as well.

Section 254 only applies to persons targeted by Parliament, not the legislatures of the provinces and territories.

Importantly, the government is relying on Criminal Code s. 258.1(2)(b) to use the test results to enforce its suspensions.

Section 258.1(2)(b) states:

Unauthorized use or disclosure of results

258.1(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of the results of physical coordination tests under paragraph 254(2)(a), the results of an evaluation under subsection 254(3.1), the results of the analysis of a bodily substance taken under paragraph 254(2)(b), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer, or the results of the analysis of medical samples that are provided by consent and subsequently seized under a warrant, except

...

(b) for the purpose of the administration or enforcement of the law of a province.

However, in Canada we have territories and not only provinces. People in the territories are not included in s. 258.1(2)(b).

Section 15 of the Charter articulates that "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination."

Therefore, your s. 15 Charter rights are being violated as the people in the territories are not being subject to the same federal law as you are in Ontario, and this breach of your rights is not saved under s. 1 of the Charter.

The government has also not included the s. 33 notwithstanding clause in s. 48 of the HTA.

At no time has the Province alleged s. 253(a) was a colourable intrusion into provincial jurisdiction over property and civil rights and its enactment an invalid exercise of Parliament’s jurisdiction over criminal law, public safety and good government power.

It is also well-settled that merely incidental effects will not disturb the constitutionality of an otherwise intra vires law.

Thus, even if the provincial suspensions were valid its dominant purpose is to not only significantly hinder, but also eliminate the ability of the federal government to enforce s. 253(a).

It also jeopardizes the conviction of every laid impaired driving or refusal to blow charge in Canada.

Section 254(5) states;

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

Since short-term suspensions are unconstitutional and still being applied, every person in Canada (other than in Quebec as they have no short-term suspensions because they clearly understand the law) has a reasonable excuse to refuse to comply with a demand for a breath sample under s. 254 of the Criminal Code, and under s. 48 of the HTA.


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