R v. Gibson-much ado about nothing

I too was aghast when I read the headline in the Globe and Mail that the Supreme Court of Canada had “shot down” the two beer defence. I was about a third of the way through Madame Justice Charron’s majority judgment when the first call came in from CTV News asking for a comment. By the time I had finished reading the decision I had fielded three or four calls from other media outlets.

I was sad to tell them all that the Supreme Court judgment in R v Gibson, [2008] 1 SCR 397 [“Gibson“], had done no such thing and that other than to lawyers and law students the judgment was not very important at all.

The decision deals with what are known as “straddle cases” in the context of “evidence to the contrary” in the defence of Over 80 charges. Simply put there is a necessary presumption in the Criminal Code, RSC 1985, c C-46, contained in s.258(1)(c) (necessary as it is impossible for the police to obtain a blood alcohol analysis at the time of driving). The presumption, also known as the relating back presumption, allows for the court to presume (if a number of pre-conditions are met) that an individual’s blood alcohol concentration (“BAC”) is the same at the time of vehicle operation as at the time the test is taken, unless there is “evidence to the contrary”. The evidence to the contrary defence (also known as a “Carter defence”, named for the case that sanctioned it (R v Carter, [1985] OJ No 1390 (QL)) works this way: a defendant testifies as to his pattern of consumption (what he drank) and a toxicologist calculates what his BAC would be based on this stated pattern of consumption. If this evidence confirms that a defendant’s BAC would have been below 80 milligrams of alcohol per 100 milliliters of blood at the time of driving, assuming the defendant’s evidence is accepted or raises a reasonable doubt in the mind of the trial judge, an acquittal should follow.

The calculation is not complex. Each drink contains a certain amount of alcohol, which is easily calculated. The human body also metabolizes (eliminates) alcohol as well. The rate at which the human body metabolizes or eliminates alcohol, however, varies depending on a number of factors. The average rate of elimination is 15 milligrams of alcohol per 100 milliliters of blood per hour. Nevertheless, few people are “average” and the rate of actual elimination can vary between 10 and 20 milligrams of alcohol per 100 milliliters of blood per hour.

The toxicologist multiplies the number of drinks consumed by the amount of alcohol in each drink and subtracts the amount that would have been eliminated to calculate a defendant’s BAC at the time of the alleged offence.

A simple example is as follows. Assume a 130 pound male. One beer would contain 30 milligrams of alcohol per 100 milliliters of blood. Assume again he testified that he had consumed four beers over a five hour period. The period starts when consumption begins and ends at the time of driving.

In this scenario at the time of driving he would have a BAC between 20 and 70 milligrams of alcohol per 100 milliliters of blood depending on his actual rate of elimination. The total amount of alcohol consumed would be 120 (four beers multiplied by 30). The elimination would be between 50 and 100 depending on the rate of elimination (5 multiplied by 10 and 20) and as such his BAC would be between 20 and 70 at the time of the offence. Therefore if this defendant’s evidence were accepted or raised a reasonable doubt in the mind of the trial judge an acquittal should follow. In this hypothetical the rate of elimination would not matter.

However, by varying the hypothetical ever so slightly it becomes apparent how some cases are not as straightforward. Again assume the consumption was four beers but the time period was only 3 hours. In this example the BAC at the time of driving would be between 60 and 90 milligrams of alcohol per 100 milliliters of blood. It would be 60 milligrams of alcohol per 100 milliliters of blood using a rate of elimination of 20 and 90 using a rate of elimination of 10.

Depending on which rate of elimination is used, the individual would either be guilty of the offence or entitled to an acquittal. This sort of “straddle” scenario was before the Supreme Court in Gibson. The decision presented the Court with an opportunity to provide some needed clarity to an issue that had resulted in much confusion in the lower courts.

Various Courts of Appeal throughout Canada had come to different resolutions on the issue. Until this matter reached the Supreme Court of Canada there existed three approaches.

In Ontario the answer came in R v Heideman, [2002] OJ No 3461 (QL) [“Heideman“], which held that if the toxicologist opinion straddled between over and under 80 it did not amount to evidence to the contrary. This led to toxicologists attempting to determine an individual’s particular rate of elimination. The problem with this was that rates of elimination, even within an individual, vary over time according to a number of factors.

The second approach was known as the “prevailing direction” approach. This approach allowed for the evidence to amount to evidence to the contrary if the range was “more likely” below the legal limit than above.

The third approach was the “some evidence” approach which allowed for the evidence to amount to evidence to the contrary if there was some evidence that the accused was below the legal limit. This approach was adopted by the Courts of Appeal in Saskatchewan and Quebec in R v Gibson, [1992] SJ No 233 (QL) [“Gibson“].  and R v Dery, [2001] QJ No 3205 (CA). This approach was categorically rejected by the Ontario Court of Appeal in Heideman.

In Gibson the Supreme Court of Canada finally addressed what is the appropriate response in these cases. It is important to remember, however, that so-called “straddling cases” are far from the norm when it comes to evidence to the contrary claims. In fact in my close to two decades of arguing thousands of these cases I can only think of a handful where the rate of elimination would have had a bearing on the outcome.

It is for this reason that I suggest that this decision is much to do about nothing.

Ultimately Justice Charron for the majority (per Bastarache, Abelle and Rothstein JJ.) adopted the Heideman approach and held that a straddled reading does not generally amount to evidence to the contrary. She further held that post-offence testing is of almost no weight whatsoever as the rates of elimination even within an individual can vary at different times and the particular rate of elimination at the material time can never be duplicated.

In a concurring judgment Chief Justice McLachlin and Justices Fish and LeBel leave the door open to rare instances when the straddle approach may raise a reasonable doubt. The example given by these Justices is when the range is very close to the legal limit (40-82) this evidence may be capable or raising a reasonable doubt. On the majority approach it would not. This approach is almost a narrowing of the “prevailing direction” approach.

Justices Deschamps and Binnie dissented holding that appropriate test is the “prevailing direction” approach.

All that said, I do think this is an important judgment, but not because of what it decides regarding straddling cases. This cases caused a (4-3-2) split on the SCC at a time when a significant amendment to the Criminal Code is pending with the introduction of Bill C-2, which will no longer require merely evidence to the contrary but evidence from an accused that the breathalyzer machine was either not functioning properly or not being operated properly.

The Bill C-2 amendment is an anomaly unto itself. It is probably the only piece of the Criminal Code that casts such a huge and dramatic burden upon someone accused of a crime, and is based entirely on a desire to make our roads safer.

The SCC was not by any means even close to unanimous in its approach to Gibson, a case that raised a rather uncommon problem.

There is no doubt that Bill C-2 will eventually face constitutional challenges that will ultimately make their way before the SCC. If the Court was so divided in Gibson, one can only imagine the lack of unanimity that will mark the Court’s judgments when grappling with these future constitutional challenges.