by Cedric Hughes, Barrister & Solicitor with regular weekly contributions from Leslie McGuffin, LL.B.   

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The End of the “Two-Beer Defence

Article Number: 

In Canada, the first legislation dealing with impaired driving was passed in 1921, when “driving while intoxicated” became an offence under the Criminal Code. This was a time, as Leonard Evans describes it in the book “Traffic Safety”, when “evidence of intoxication was usually provided by a police officer reporting that the accused was unable to walk a straight line or speak clearly.”

In the 1930s, the development of instruments that measured alcohol content in the body led to laws referred to as “per se laws” because they made it an offense “in and of itself” to drive with a blood alcohol content (BAC) measured above the established legal level, whether or not the driver exhibited visible signs of intoxication. In Canada, “per se laws” were introduced in 1969 setting the legal limit at .08 BAC—the limit at which 95% of the studies on the effects of alcohol on driving skills reported declines in a number of performance measures. To encourage drivers to cooperate, refusing to provide a breath sample on an approved instrument also became an offence.
Violating a “per se law” is based solely on body chemistry. Average absorption and elimination rates are known but many factors are involved and every individual’s response is based on the particulars. In addition, testing always takes place after the time of driving, and therefore does not directly measure BAC at the time of driving. Recognizing these issues, the law allowed for rebutting the presumption created by an over the limit machine-based test with “evidence tending to show that the …[BAC] of the accused at the time when the offence was alleged to have been committed did not exceed …[.08].”
Over the years, the courts have frequently heard evidence from drivers concerning the amount they had to drink – for example – “two beers”, and then heard from an expert on body chemistry give evidence that taking into account bodily absorption and elimination rates, the amount of alcohol reportedly involved would not necessarily produce the reported breathalyzer reading.
The evidence from the driver may also be that a large amount of alcohol had been consumed, but that the drinking took place over a number of hours. In any case, if the evidence of the driver is accepted, and the evidence of his expert witness is accepted to the effect that given the way the body deals with alcohol, the breathalyzer machine may have been wrong, the driver wins the case.
The Supreme Court of Canada recently reviewed the “two beer” defence in the case of “R. v. Gibson” (17 April 2008). In short, the court dealt unfavorably on the idea of expert evidence being used to contradict the breathalyzer machine.
The Supreme Court of Canada interprets and applies the law. The “two beer” defence is greatly weakened, but not eliminated. However, Parliament, which makes the law, will effectively, July 2, 2008, remove this defence altogether. As long as the breathalyzer is used in accordance with the manufacturers instructions, the results will not be open to contradiction.

Cedric Hughes

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