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PAGE 20 CaseLawLaw SUPREME COURT OF CANADA Breathalyzer PRESUMPTION -- "EVIDENCE TO THE CONTRARY" As "straddle" evidence constitutes attempt to defeat presumption in s. 258(1)(d.1) of Criminal Code, it cannot constitute evidence tending to show that accused's blood alcohol level did not exceed legal limit at time of offence Accused G and M charged with driving "over 80" after failing breathalyzer. At trials, both ac- cused adduced expert evidence to rebut presumption in s. 258(1) (d.1) of Criminal Code that breathalyzer readings provided proof that blood alcohol level ex- ceeded legal limit at time of driv- ing. Expert evidence expressed in terms of range of possible blood alcohol levels that straddled legal limit, given pattern and amount of consumption and accused's age, height, weight and gender. M's expert also conducted post- offence testing of M's elimination rate and estimated that blood al- cohol level would have been be- low legal limit at relevant time. Nova Scotia Supreme Court up- held G's acquittal at trial. Nova Scotia Court of Appeal set aside acquittal and ordered new trial. M convicted at trial and Alberta Court of Queen's Bench and Al- berta Court of Appeal upheld conviction. Accused appealed. Appeals dismissed. Per Charron J. for majority: Straddle evidence constitutes attempt to defeat pre- sumption in s. 258(1)(d.1) of Code and, as such, cannot con- stitute evidence tending to show that accused's blood alcohol level did not exceed legal limit at time of offence. It is not enough to show, based on accused's pattern of consumption, that accused consumed enough alcohol to exceed legal limit, albeit in quan- tity that would place him within range that may be somewhat different than that extrapolated from breathalyzer reading. In order to displace presumption, evidence must show that ac- cused's blood alcohol level would not have been above legal limit at time of driving, regardless of how fast or slow accused metabolizing alcohol. On basis of undisputed scientific fact that absorption and elimination rates vary con- tinuously, post-offence testing of accused's own elimination rate will rarely add anything of value to expert evidence. Legislative scheme should not be interpreted as requiring persons to submit to drinking tests in order to make out defence. Expert opinion evidence, in placing G's and M's blood alcohol levels both above and below legal limit at time of driving depending on accused's actual rate of absorption and elimination, did no more than confirm that accused fell within targeted category of drivers and did not rebut statutory presump- tion. Per LeBel J., concurring in result: Expert evidence of alco- hol elimination rates in general population and straddle evidence can be relevant and not inher- ently inadmissible for purpose of rebutting presumption in s. 258(1)(d.1) of Code. In absence of evidence tending to show that accused's blood alcohol level at time of offence was below legal limit, that evidence will rarely have sufficient probative value DD LT KHBBE-01 S&R bw 6/5/08 1:12 PM Page 1 to rebut presumption. Because individual's elimination rate var- ies depending on number of fac- tors, evidence that blood alcohol content of average person of sex, age, height and weight of accused would have been at certain level or within certain range will rarely be sufficiently probative to raise reasonable doubt. Wide straddle range cannot be considered evi- dence to contrary since it does not tend to prove that accused was at or under legal limit. Simi- larly, range that is overwhelm- ingly above legal limit may be of limited probative value. Fore- closing possibility of straddle evi- dence raising reasonable doubt and rebutting presumption would inappropriately restrict accused's ability to defend him- self. Expert evidence adduced by G and M admissible. Given that G's evidence based on elimina- tion rates in general population, consisted of wide range of values JUNE 16, 2008 / LAW TIMES COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. and included values significantly above legal limit, it did not raise reasonable doubt that G's blood alcohol content actually exceeded legal limit. Would have been un- reasonable for trial judge to find that M's straddle evidence capa- ble of raising reasonable doubt. No reason to interfere with trial judge's rejection of evidence of M's own elimination rate because test had not sufficiently approxi- mated conditions at time of of- fence. (Deschamps J. dissenting). R. v. MacDonald; R. v. Gibson (Apr. 17, 2008, S.C.C., McLach- lin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 31546; 31613) Appeal from 209 C.C.C. (3d) 481 and 208 C.C.C. (3d) 248 dismissed. Or- der No. 008/112/001 (76 pp.). FEDERAL COURT OF APPEAL Appeal PROCEDURE Contents of appeal book deter- mined in consolidated appeal Plaintiff brought action against insurer. Proceeding resulted in minutes of settlement. Plaintiff refused to sign. Plaintiff dis- missed solicitor. Insurer brought motion to enforce minutes of settlement. Summary trial was ordered. Plaintiff argued con- sent was not valid because it was induced by fraud. Plaintiff was denied leave to appeal. Plaintiff brought action. Claims were dismissed. Plaintiff was grant- ed leave to file single notice of appeal for all orders. Plaintiff brought motion for order de- termining contents of appeal book. Plaintiff brought motion to consolidate four appeals and for order for consolidated appeal book. Motion for consolida- tion was granted as unopposed. There was to be consolidated appeal book. Order was made permitting appellant to include books of authorities in appeal books. Crowe v. Canada (Supreme Court) (Feb. 25, 2008, F.C.A., Sharlow J.A., File No. A-495-07; A-509- 07; A-549-07; A-550-07) Order No. 008/063/155 (10 pp.). TIME Motion for extension of time allowed in part Respondent was granted dis- ability pension. Crown brought application for judicial review. Respondent sought extension of time for filing affidavit and record. Motion was allowed in part to permit respondent to file record containing only memo- randum of fact and law in order to assist court. There was no rea- sonable explanation for delay. Canada (Attorney General) v. Hryciw (Feb. 21, 2008, F.C.A., Sharlow J.A., File No. A-341- 07) Order No. 008/063/154 (4 pp.). FEDERAL COURT Crown ARMED FORCES Chief of Defence Staff failed to provide reasons as required by National Defence Act (Can.) Applicant brought grievance re- garding quality of medical care applicant received while mem- ber of Canadian Forces. Cana- dian Forces Grievance Board found failure of Canadian Forc- es medical personal to carry out CAT scan for right years after it was first recommended meant applicant was not pro- vided with adequate medical care. Chief of Defence Staff dis- missed grievance. Application for judicial review was allowed. Chief of Defence Staff did not provide reasons for disagreeing with key findings made by Ca- nadian Forces Grievance Board as fence Act (Can.). Morphy v. Canada required by National De- (Attorney General) (Feb. 14, 2008, F.C., Mactavish J., File No. T-1183- 07) Order No. 008/063/138 (27 pp.). Customs And Excise GENERAL Same expenses were disallowed twice Applicants were audited and were found to owe $44,450 GST plus $14,768 interest and $12,001 in penalties. Ap- plicants' request for relief from interest and penalties was dis- missed. Request for fairness relief was denied second time. Applicant sought to overturn decision was dismissed. Mo- tion for recusal was dismissed. Motion for recusal could and should have been brought soon- er. Submissions with respect to reasonable apprehension of bias were without merit. Application for judicial review was allowed. Same expenses were disallowed twice. Disallowed amounts could have been used to either increase income or decrease ex- penses in IEAL. Calculation of total monthly family income minus total monthly family ex- penses would have been over- stated. Boparai v. Canada (Feb. 26, 2008, F.C., Snider Elections CONTROVERTED ELECTIONS Respondents not required to show results of election unaffected Applicants were unsuccessful candidates in election. Appli- cants contested results of elec- tion on basis of irregularities. Committee concluded irregu- larities occurred but did not call legitimacy of results into ques- tion. Application for judicial review was dismissed. There was no basis to require respondents to show results of election were unaffected. Laboucan v. Loonskin (Feb. 15, 2008, F.C., O'Reilly J., File No. T-1040-07) Order No. 008/063/137 (8 pp.). Immigration PERSON IN NEED OF PROTECTION Officer had to pursue own risk analysis Applicant received negative pre- removal risk assessment. Officer considered only new evidence Still looking for a great Search & Registration Service Provider? Dye & Durham offers: • Accurate search results • Knowledgeable and friendly staff assistance • Search Options: a. Direct Search (ONBIS) b. Staff-assisted (phone, fax or email) At last, the search is over – Contact Dye & Durham today! • Reliable – We've been in the legal space since 1874 Ask about our Corporate Supplies. eservicedd.ca www.lawtimesnews.com 1-800-668-8208 Fax: 1-800-667-3146 J., File No. T-229-07) Order No. 008/063/123 (15 pp.). • Comprehensive list of services (NUANS, Out-of-province Federal, Preliminary and more!)

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