impaired driving – prospective vs. retrospective application of (then) recent amendments to Criminal Code – were the amendments substantive or merely evidential in nature – “While that conclusion is sufficient to terminate this judgment I propose to continue with a review of some of R. S. Prithipaul’s written submissions in support of a finding against retrospectivity that have been posted on Alan Gold’s Collection of Criminal Law Articles [ADGN/RP-215 (November 15, 2008)]. I am of the view that Prithipaul persuasively makes the case that these amendments are substantive in effect and cannot be retrospectively applied to pending cases”.

[1]      This is another “retrospectivity” ruling.  Each of the defendants is charged with being over 80. Each of these charges was laid prior to July 2, 2008 and none of the trials have taken place.  Section 11(b) has been waived for the purposes of allowing this joint argument to take place.

The Position of the Crown

[2] The position of the prosecutors is that the traditional Carter defence provides for a judicial sanctioning of “bad science” because, as applied, the Carter defence allows for an acquittal in the face of scientifically valid evidence from an approved device. By these amendments Parliament has decreed that “bad science” should not be allowed to ground a defence to a charge of being over 80.