ALL RISE! The Supreme Court of Canada and the Two Beer Defence

The court was full of lawyers in black robes, which you don’t see normally in impaired driving criminal court. I looked around and the prosecutors (crown attorneys) seemed to me to be a bit like boy scouts – respectful, quiet, serious. The defence lawyers looked a bit like sharks – flamboyant, confident, expensively tailored with expensive watches. They seemed hungrier than the prosecution, as they could lose millions of dollars a year if the two beer defence was no longer valid. The two beer defence had been a reliable source of income for defence lawyers and private experts who would calculate BACs based on viva voce testimony.

Various lawyers from both sides presented in front of the Justices. Usually the Justices interrupt the presentation with pointed questions. The questions are a good indicator about what the Justices consider important, and it is a good idea to answer the questions directly.

One defence lawyer basically yelled his prepared speech at the justices. When one justice interrupted with a question, the lawyer looked a bit annoyed and said he would answer the question later, but never did. He continued yelling. The justices eventually gave up trying to ask him a question. This approach would never work in a Supreme Court appeal – but the lawyer treated it like a criminal impaired driving trial.

The problem with the defence lawyers’ approach was that the hearing was treated like a criminal impaired driving trial with flamboyance and dramatic gestures when it was a Supreme Court appeal trial. These methods were about preserving the two beer defence at any cost For example, one lawyer dramatically showed his expensive wrist watch and said, “How can I tell if it is accurate?” Another lawyer complained that the printout of the Intoxilyzer 5000C was too small and was difficult to read and could easily be lost. These were desperate attempts to undermine the scientific evidence supporting breath testing.

One factual error which could have misled the Justices was that the lawyer representing the Ontario Criminal Defense Lawyer’s Association raised the issue of an Intoxilyzer 5000 used by the police in Washington DC which, according to news reports, was not calibrated properly and gave erroneous results in 40 cases.

“Same instrument, same procedure,” he said.

But of course it wasn’t. The breath instrument used by the Washington DC police was an Intoxilyzer 5000EN, which was never approved in Canada. The Intoxilyzer 5000C (now the 8000C and 9000C) was used here. In addition, the Washington DC police only checked the breath instrument with an alcohol standard once a month, compared to every driver breath test in Canada. The two beer defence relied on creating doubt about the accuracy of breath testing – but this argument was based on false information.

It was definitely NOT the same instrument, NOT the same procedure.

During the proceedings, I had the pleasure of hearing Chief Justice Beverley McLachlin refer to my name twice, saying the Crown’s arguments were “buttressed” by Wigmore. The SCC decision also referenced two of my papers on breath alcohol testing accuracy. This was the culmination of my career – seeing the scientific validity of breath testing upheld by the highest court in the land.

I had decided, on principle and scientific ethics and in order not to undermine the integrity of the breath alcohol testing program in Ontario, that I would not testify for the defence in two beer defence cases when I retired in 2005. The 2012 Supreme Court of Canada decision removed this lucrative line of income for private experts and defence lawyers anyway.

The Supreme Court judgment was not released until over one year after the hearing – on November 2nd, 2012.

About 10 years after the SCC decision, I ran into a well-known defence impaired driving criminal lawyer who I respected and liked. After a bit of talking and some wine and beer, he turned to me and said seriously:

“Of course we all hate you.”

Then he said, “Just kidding.”

The two beer defence was ridiculous from the beginning. Putting significant weight on the testimony of the accused – who testified that he consumed alcohol on a timeline that would have put his BAC below the legal limit at the time of driving – was nothing but a desperate statement made to confuse the trier of fact. Follow the science and facts! The Supreme Court of Canada did exactly that, and the two beer defence was consigned to history.

References

• Martin, T.L., Wigmore, J.G., and Woodall, K.L., “A Comparison of Blood Alcohol Concentrations Estimated From Drinking Histories of Drivers Charged with Over 80 and their Intoxilyzer 5000C Results”, Canadian Society of Forensic Sciences Journal, 187, 2004
• Osgoode Hall Law School, University of York, “R v St-Onge Lamoureaux: The Supreme Court of Canada upholds most of Parliament’s new over 80 drunk driving law”, November 14, 2012
• Wigmore, J.G., “Man vs Machine: Self-Reported Alcohol Consumption of Drinking Drivers vs Evidential Breath Alcohol Tests’ Is the Restriction of Evidence to the Contrary Scientifically Valid?” 54 Crim L.Q., 395, 2009