The Supreme Court of Canada on Thursday ordered a new trial for a Nova Scotia man charged with impaired driving while operating his all-terrain vehicle after drinking beer about five years ago.
In doing so, the court struck down the arguments of Robert Gibson and an Alberta man who were both charged with impaired driving in their home provinces. Both said they didn’t drink enough to be drunk, despite failing breathalyzer tests
At his trial in Kentville provincial court in 2004, Mr. Gibson was found not guilty of driving while his blood alcohol level was over the legal limit. Judge Alan Tufts acquitted him, saying he had a reasonable doubt about whether the Kings County man was legally drunk at the time of his arrest.
Mr. Gibson had testified at trial he had 10 beers over seven hours when he was stopped by the RCMP in July 2003. He said he had five of them shortly before being pulled over at about 9 p.m.
In a split decision, the judicial panel ruled 7-2 to uphold breathalyzer results in Mr. Gibson’s case and that of Martin MacDonald of Alberta. Their arguments were hooked to the so-called two-beer defence, an avenue for defence terminated earlier this year by the Harper government.
The men argued that based on factors such as body weight, the amount and pattern of alcohol consumption and age, they had metabolized the alcohol and their levels straddled the legal limit of 80 milligrams, CBC News reported.
Mr. Gibson of Canning, who was 36 years old when he was stopped by police near Harbourville, had his case set aside by the Nova Scotia Court of Appeal, which ordered a new trial.
The Supreme Court confirmed the order for a new trial.
Mr. MacDonald of Calgary failed a breathalyzer test at a police checkpoint in 2003. He has said he drank six cans of beer over more than four hours. Mr. MacDonald was convicted.
At trial in Kentville, “the arresting officer testified that he saw Mr. Gibson driving his all-terrain vehicle on the highway, that he stopped him . . . on July 13, 2003, that Mr. Gibson’s breath smelled of alcohol and that his speech was slurred,” the Supreme Court’s judgment says.
“The officer administered two breathalyzer tests, which showed that Mr. Gibson’s blood alcohol content was 120 milligrams at 10:12 p.m. and 100 milligrams at 10:21 p.m.”
According to The Canadian Press, an expert testified that “based on average alcohol elimination rates for someone of Mr. Gibson’s weight, his blood alcohol concentration would have fallen in a range that may or may not have been over the legal limit.” In other words, the expert said, he straddled the line.
Defence lawyer Chris Manning said in 2004 that Judge Tufts’ decision shows there are times when a driver can be legally sober while driving but found guilty when his intoxication level increases in police custody.
But Susan MacAskill, MADD Canada’s Atlantic region manager, said the Supreme Court recognized breathalyzer results are essentially infallible.
She said the attitudes of people who continue to drink and drive, despite all the information available on impairment and about risk to drivers and others, must be changed.
Ms. MacAskill of Windsor lost her 68-year-old father to a drunk driver in a crash in 1993.
She said Canadian courts “need to recognize the fact the person has said they’ve consumed an excessive level of alcohol (and) technology has said that they’re legally impaired.”
“The courts should support the fact that that behaviour needs to be appropriately addressed.”