Alex's Case — Drive Over 80 — Dismissed

Between
Her Majesty the Queen, and
Alex L.

[2002] O.J. No. 5441

Ontario Court of Justice
Toronto, Ontario
Judge Young

Dismissed:  3 May 2002
(5 paras.)

¶ 1     YOUNG J. (orally):  It is too bad that these breathalyzer tests can't be dealt with by DNA, which is apparently a more precise science, and somehow right at the roadside, if Parliament is serious about these things, and a test could be developed, so that it would be generally medically accepted that the person was over 80 when the officer stopped him. But the way this system is set up, Parliament has said, quite understandably, that you are entitled to challenge the breathalyser reading. So, what happens is that you get into a contest as to what the breathalyser reading says and a defence where people say that it can't be right because I didn't drink that much. Unless somebody was right there and saw the amount of what was consumed there is no way really to contradict it.

¶ 2     The only time you can really see a contradiction is, for example, let's say a person has a reading of 160 and all the witnesses come forth and say he had two beers. Well, the discrepancy is so great when a reading is so high and the amount consumed is so low it's easy for a court to say that it just can't be so and I am going to accept the breathalyser reading. But when everyone comes forward and says with precision, this is exactly how much the man had at the time and the expert says he would have had to have had twice as much as everybody else agreed he had for that reading to be accurate, where is the Court left?

¶ 3     That is why I come back to the fact that this testing is really quite unsatisfactory and if Parliament is serious about doing something about drinking and driving they should revise the tests so that they can be more accurate. Therefore, triers of fact will have some more precision to deal with these things. Because to me, when apparently the breathalyser is working all right and we get a reading such as we have here and to support those readings the person would have had to have had twice as much as everybody else who was there agrees he did, it just leaves you in a state of uncertainty. You've got these witnesses coming forward, they are otherwise responsible members of the community. Sure there was confusion about who drove who where and what time certain things happened, but even on Dr. Krishnan's evidence even if you take the later time of 5:30 there is not much of a change in the readings and they are way below 80 anyway. That is the most serious discrepancy in the defence evidence. The other thing about who paid for the drinks and who took a cab and who drove, while there are discrepancies I don't think they go right to the central heart of the issue.

¶ 4     So, in these types of cases I look to see whether the defence witnesses are so far off what happened that they can't be relied on or it is just not acceptable evidence, and I really can't see that in this case because on the key points of what time the drinking started, how much was consumed, everybody is consistent. I can't say with any certainty that they're mistaken or they're not telling the truth.

¶ 5     So, on the evidence to the contrary, there is evidence to the contrary, and it causes a reasonable doubt, and the charge is dismissed.

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