International Law

R. v. Gibson

The Supreme Court gives “straddle” evidence of intoxication a qualified thumbs-up.

As I mentioned in my Statement of Principles post a while back, I’m really not interested in drinking and driving cases. They are, of course, the bread and butter of many a practice and regularly get fought and appealed more than any other criminal offence, but it’s really quibbling over loopholes. Like the ever popular argument over s. 10(b) and how much “delay” is allowed. And remember “bolus” drinking?

Not that there aren’t real issues involved. Straddle evidence is expert opinion evidence suggesting that an accused’s blood alcohol concentration may have been above or below the legal limit. Such evidence gives a range that “straddles” .08. At issue here was whether such evidence can rebut the statutory presumption of a breathalyzer test being accurate. In a complex decision made up of three rulings, this is how it broke down.

Four judges (in a decision written by Charron, J.) say No, straddle evidence cannot defeat the presumption.

Three judges (in a decision written by LeBel, J.) say Yes, it “can” be relevant and is not “inherently inadmissible for the purposes of rebutting the presumption” — though the probative value of such evidence will usually be so low as to be insufficient. As was the case here. Hence this was a concurring judgment in the result, even though it does not agree with the majority.

Two judges (in a decision written by Deschamps, J.) say Yes, a “judge should acquit if the prevailing direction of the straddle range favours a level that does not exceed the legal limit.”

In Justice Charron’s decision three approaches to straddle evidence are put forward: the Heideman approach (named after the leading case from the Ontario Court of Appeal), the “prevailing direction” approach (which refers to whether more or less of the straddle falls on the legal side), and the “some evidence” approach. Charron adopts the Heideman approach. Justice Deschamps calls LeBel’s position a narrow version of the “prevaling direction” approach. Deschamps opts for an unmodified “prevailing direction” approach. I take it from the result that Heideman has now been rejected.

Like I say, I’m not into these cases. One thing’s for sure though: This decision should make lawyers who do a lot of this work very happy. There’s not much clarity in the result (as is evidenced by this somewhat misleading initial report at the CBC).

Upon further review: At the Toronto Star the Canadian Press wire story also, I think, misrepresents the decision. “Justice Louise Carrion [sic!], writing the main opinion, put strict limits on the kind of scientific evidence that can be used to challenge a breath reading.” Well, yes, she did. But on this point her strict limits didn’t carry the day. The CP story does, however, make the point that “the scope of its [the judgment’s] impact could be limited. Parliament recently passed new legislation imposing even tighter rules on efforts to challenge breath tests.” This is referring to Bill C-32 (pdf file), which restricts challenges to the blood alcohol test results, limiting the use of ?evidence to the contrary? to evidence tending to show that the breathalyzer was malfunctioning or was operated improperly.

Full post as published by Criminal Review on April 17, 2008 (boomark / email).