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Supreme Court limits when accused drunk drivers can get breathalyzer logs

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Canada’s top court has set new limits for defendants trying to beat a drunk-driving charge in a ruling that may have consequences for anyone accused of being high behind the wheel.

What the Supreme Court of Canada laid out over two decisions released Friday was a framework for when an accused person can get the maintenance log of a breathalyzer so they can question how well the device worked and whether the results can be trusted.

The high court said an accused can get the logs only if they can show that the records are relevant to their defence.

Defence lawyers regularly ask for the records, often held by private companies or police forces, even though they may not be directly related to the evidence collected as part of a case. In each of the cases the court ruled, the Crown argued it didn’t have to hand over the information.

In a near-unanimous ruling on two drunk-driving cases coming out of Alberta, the court said the records are not material to how a breathalyzer works when a driver is tested, only whether the device was properly maintained.

« The only question that must be answered is whether the machines were operating properly at the time of the test — not before or after, » Justice Malcolm Rowe wrote for the majority.

« The time-of-test records directly deal with this. The maintenance records, according to the expert evidence, do not. »

Justice Suzanne Cote was the lone dissenter.

A ‘highly instructive’ ruling

The decisions mark the second time this decade the court has weighed in on how far breathalyzer tests can be challenged in court using maintenance and training records, and defence lawyers believe it takes away another option for those trying to answer an impaired driving charge.

Defence lawyers will have a difficult time showing the maintenance records are relevant to the case if they can’t see the documents to begin with, said Lisa Jorgensen, a partner in the Toronto law firm of Cooper Jorgensen.

« It is, I would suggest, nearly impossible for the defence to ever show those records are likely to contain anything in particular other than the possibility of error, » she said.

« It’s confusing and very challenging. »

Ottawa-based lawyer Michael Spratt said the Supreme Court ruling will be « highly instructive » for judges when they consider requests for maintenance logs for roadside marijuana tests.

« It, I think, does tilt the slope so that accused will have an uphill battle to make the arguments to get the records of those machines as well, » Spratt said.

New impaired driving offences that took effect at the end of June set limits on how much THC, the primary psychoactive element in marijuana, a person can legally have in their system before they face penalties ranging from a $1,000 fine to a one-year driving suspension, to up to 120 days in jail.

To prove the offences, police have to take blood samples within a two-hour window.

Drager DrugTest 5000

The federal government has approved one roadside device to check if a driver is high, but some police forces are hesitant about using the Drager DrugTest 5000.

Courts may be hesitant to put as much faith in the drug tests as they do with breathalyzers, eventually leading to a similar decision from the Supreme Court on the relevance of certain records in drug-impaired driving cases, said Stephanie DiGiuseppe, who specializes in criminal and constitutional law with Ruby, Shiller, Enenajor, DiGiuseppe Barristers.

« A lot of it will come down to obtaining records and finding out about these new devices, » she said.

« We’ve not put these new devices through the muster to getting anywhere close to a level of confidence for courts. »

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Anglais

‘Business as usual’ for Dorel Industries after terminating go-private deal

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MONTREAL — Dorel Industries Inc. says it will continue to pursue its business strategy going forward after terminating an agreement to go private after discussions with shareholders.

« Moving ahead. Business as usual, » a spokesman for the company said in an email on Monday.

A group led by Cerberus Capital Management had previously agreed to buy outstanding shares of Dorel for $16 apiece, except for shares owned by the family that controls the company’s multiple-voting shares.

But Dorel chief executive Martin Schwartz said the Montreal-based maker of car seats, strollers, bicycles and home furniture pulled the plug on a deal on the eve of Tuesday’s special meeting after reviewing votes from shareholders.

“Independent shareholders have clearly expressed their confidence in Dorel’s future and the greater potential for Dorel as a public entity, » he said in a news release.

Dorel’s board of directors, with Martin Schwartz, Alan Schwartz, Jeffrey Schwartz and Jeff Segel recused, unanimously approved the deal’s termination upon the recommendation of a special committee.

The transaction required approval by two-thirds of the votes cast, and more than 50 per cent of the votes cast by non-family shareholders.

Schwartz said enhancing shareholder value remains a top priority while it stays focused on growing its brands, which include Schwinn and Mongoose bikes, Safety 1st-brand car seats and DHP Furniture.

Dorel said the move to end the go-private deal was mutual, despite the funds’ increased purchase price offer earlier this year.

It said there is no break fee applicable in this case.

Montreal-based investment firm Letko, Brosseau & Associates Inc. and San Diego’s Brandes Investment Partners LP, which together control more than 19 per cent of Dorel’s outstanding class B subordinate shares voiced their opposition to the amended offer, which was increased from the initial Nov. 2 offer of $14.50 per share.

« We believe that several minority shareholders shared our opinion, » said Letko vice-president Stephane Lebrun, during a phone interview.

« We are confident of the long-term potential of the company and we have confidence in the managers in place.”

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Anglais

Pandemic funds helping Montreal businesses build for a better tomorrow

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Many entrepreneurs have had to tap into government loans during the pandemic, at first just to survive, but now some are using the money to better prepare their businesses for the post-COVID future.

One of those businesses is Del Friscos, a popular family restaurant in Dollard-des-Ormeaux that, like many Montreal-area restaurants, has had to adapt from a sit-down establishment to one that takes orders online for takeout or delivery.

“It was hard going from totally in-house seating,” said Del Friscos co-owner Terry Konstas. “We didn’t have an in-house delivery system, which we quickly added. There were so many of our employees that were laid off that wanted to work so we adapted to a delivery system and added platforms like Uber and DoorDash.”

Helping them through the transition were emergency grants and low-interest loans from the federal and provincial governments, some of which are directly administered by PME MTL, a non-profit business-development organization established to assist the island’s small and medium-sized businesses.

Konstas said he had never even heard of PME MTL until a customer told him about them and when he got in touch, he discovered there were many government programs available to help his business get through the downturn and build for the future. “They’ve been very helpful right from day one,” said Konstas.

“We used some of the funds to catch up on our suppliers and our rents, the part that wasn’t covered from the federal side, and we used some of it for our new virtual concepts,” he said, referring to a virtual kitchen model which the restaurant has since adopted.

The virtual kitchen lets them create completely different menu items from the casual American Italian dishes that Del Friscos is known for and market them under different restaurant brand names. Under the Prasinó Soup & Salad banner, they sell healthy Greek options and their Stallone’s Sub Shop brand offers hearty sandwiches, yet the food from both is created in the same Del Friscos kitchen.

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Anglais

Downtown Montreal office, retail vacancies continue to rise

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Some of downtown Montreal’s key economic indicators are heading in the wrong direction.

Office and retail vacancies in the city’s central core continued to climb in the fourth quarter of 2020, according to a quarterly report released Thursday by the Urban Development Institute of Quebec and the Montréal Centre-Ville merchants association. The report, whose first edition was published in October, aims to paint a socio-economic picture of the downtown area.

The survey also found office space available for sublet had increased during the fourth quarter, which may foreshadow even more vacancies when leases expire. On the residential front, condo sales fell as new listings soared — a sign that the downtown area may be losing some of its appeal to homeowners.

“It’s impossible not to be preoccupied by the rapid increase in office vacancies,” Jean-Marc Fournier, the former Quebec politician who now heads the UDI, said Thursday in an interview.

Still, with COVID-19 vaccinations set to accelerate in the coming months, “the economic picture is bound to improve,” he said. “People will start returning downtown. It’s much too early to say the office market is going to disappear.”

Public health measures implemented since the start of the pandemic almost a year ago — such as caps on office capacity — have deprived downtown Montreal of more than 500,000 workers and students. A mere 4,163 university and CEGEP students attended in-person classes in the second quarter, the most recent period for which figures are available. Border closures and travel restrictions have also brought tourism to a standstill, hurting hotels and thousands of local businesses.

Seventy per cent of downtown workers carried out their professional activities at home more than three days a week during the fourth quarter, the report said, citing an online survey of 1,000 Montreal-area residents conducted last month.

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