Toronto Sun, Sunday July 5, 2009
By ALAN SHANOFF
Impaired driving cases continue to take an inordinate amount of judicial resources and some judges continue to acquit impaired drivers on the basis of fuzzy logic and technicalities.
Last year the Harper government wisely passed legislation to effectively eliminate the "two beer" defence in impaired driving cases. This defence allowed drivers charged with having a blood alcohol reading of more than 80 milligrams per 100 millilitres of blood to claim their breath test or blood sample result was erroneous, based largely on the number of drinks the driver testified he had consumed. The legislation was effective July 2, 2008.
Unfortunately the people responsible for the legislation forgot to insert a section stating whether the law was intended to apply only to new charges laid from July 2 going forward or whether it applied to all charges no matter when laid, provided the trials took place on or after July 2.
In Ontario alone we've had more than 50 trials where this issue has been argued with judges coming down on both sides of the issue. We're now starting to see appeal decisions but it will likely be years before we get a definitive ruling from the Ontario Court of Appeal.
The waste of judicial resources is astounding.
Judges also have had brain cramps in dealing with impaired driving.
Before a police officer is legally entitled to demand a breath test be administered he must have "reasonable and probable grounds" to believe a person has operated a vehicle while impaired by alcohol or has a blood-alcohol level above the legal limit. Judges must determine if an officer had such reasonable and probable grounds to demand a breath sample.
Without such grounds the demand isn't valid and a conviction may be in jeopardy. So what constitutes reasonable and probable grounds? Here are the facts in two recent Ontario cases.
Police stopped KC at 3:45 a.m. KC's vehicle had been parked outside a bar for at least two hours. The officer smelled alcohol and KC admitted to having had one beer. In the second case police stopped KT at 2 a.m. after he made a right turn without first stopping. The officer smelled alcohol and KT admitted to having had two beers.
In both cases the trial judges concluded the Crown had failed to establish the officers' reasonable and probable grounds. Indeed in the second case the judge remarked KT had "the best flat out case for lack of reasonable and probable grounds that I can imagine."
How does one respond to such a flat out lack of common sense statement?
Both drivers were initially convicted of driving over 80 because their lawyers hadn't filed motions to exclude the breathalyzer results but the convictions were reversed on appeal. Fortunately, on a further appeal the Ontario Court of Appeal restored the convictions. The reasonableness of the demands didn't figure into the appeal court's decision but Justice Michael Moldaver, using the common sense he always exhibits, politely stated he didn't endorse the trial judges' analysis or conclusion in either case. Hopefully that will put an end to these poorly reasoned Ontario cases.
Lest anybody thinks it is only Ontario judges who engage in fuzzy reasoning let's look at two other decisions. A Manitoba judge concluded an officer did not have reasonable and probable grounds to demand a blood sample after stating the officer's "principal reason for coming to his conclusion was based on that single (fatal) vehicle accident combined with the smell of alcohol on the accused."
Fatal crash and the driver has alcohol on his breath? That's good enough for me, but apparently not for one Manitoba judge.
In a Saskatchewan case an officer pulled over a female who failed to stop at a stop sign and admitted to having had four to five beers. Yet the judge ruled "the factors of her admitting to drinking, and the presence of a strong smell of alcohol are not in of themselves sufficient to constitute reasonable and probable grounds."
No wonder so many impaired drivers try their luck in court.