Pending & Prominent: Retrospectivity of Bill C-2

Samuel Dineley undoubtedly had no idea that he was about to become embroiled in one of the most litigated issues in recent memory and embark upon a legal journey that would take him to the Supreme Court when he jumped a curb in his parent's car and struck a parked car with over 90 mg of alcohol/100 ml of blood in his body. 
In November 2010 the Ontario Court of Appeal allowed the Crown's appeal and held that the amendments to the "Carter" defence - as set out in Bill C-2 - applied retrospectively.  In doing so, MacPherson JA offered the following:
I acknowledge that in support of his argument that Bill C-2 applies prospectively to offences committed on or after July 2, 2008, the respondent relies on Angus v Sun Alliance Insurance Co, 1988 CanLII 5 (SCC)and R v Boucher, 2005 SCC 72.  In both cases, when considering the temporal operation of legislation, the Supreme Court of Canada commented on legislation that has the effect of altering the content of an existing common law defence: see Angus at para. 21 and Boucher at para. 22.  In my opinion, however, read in their entirety, neither case stands for the proposition that legislation which merely alters the evidentiary content of a defence, rather than removing or eliminating an existing defence, compels a prospective application [para 27].
On Thursday the Supreme Court heard the appeal in this matter.  As noted by the Ontario Court of Appeal in October 2010 - when it heard the case - there was then over 3000 cases in Ontario dealing with that issue and dozens of decisions going both ways.  The Supreme Court's ruling will, regardless of what it decides, have significant impact.  More importantly, however, it will resolve this issue - finally.

DG Mack