Two lawyers were in court Monday as part of a challenge on the constitutionality of new drinking-and-driving legislation changes introduced by the federal Conservative government.
The changes, which became law last July 2, eliminates the so-called two-beer defence.
Some charged with driving with more than 80 milligrams of alcohol per 100 millilitres of blood have argued they only consumed two beers, with the second coming shortly before the breathalyzer test.
As a result, their breath alcohol would be higher than their actual blood alcohol, they would say.
The new law, part of the Tackling Violent Crime Act, requires such individuals to provide the court with evidence proving the equipment had malfunctioned or that the office administering the test did so improperly.
"We always knew that the machine was deemed to be reliable; it has to be approved by the government," Osgood Hall law professor Alan Young told reporters on Monday. "So we know that like a car, it's reliable. Does that mean it will start every day? We don't know that."
Young and co-counsel Joseph Neuberger say the new law eliminates defendants from calling evidence about patterns of alcohol consumption.
In addition, the defence is left in the dark about the machines themselves, they said.
"The technology in this case is shrouded in secrecy," Neuberger.
"We as defence lawyers don't have access to the machine. We don't have access to the manual about it. And now, disclosure of important records pertaining to maintenance of this machine are being denied," he said.
Police and the advocacy group Mothers Against Drunk Driving (MADD) both pushed to eliminate the two-beer defence.
"Quite frankly, what the two-beer defence did is if you had $15,000 to $20,000, you bought yourself a defence to get off on impaired driving," said Andrew Murrie of MADD.
Impaired driving is the most frequently tried Criminal Code offence in Ontario, with 3,500 related charges laid per year.
Because of the constitutional issues involved, this issue will likely end up before the Supreme Court of Canada.
The lawyers want the case heard in the Superior Court of Justice, not the lower-level Ontario Court of Justice. The Crown opposes the move.
With a report from CTV Toronto's Chris Eby
