Presumed Innocence Threatened

People accused of driving while over the legal blood-alcohol limit have been stripped of a method of proving their innocence with the Supreme Court of Canada’s ruling on Thursday, says a top Criminal Lawyer.

Greg Dunn says the top court’s 7-2 decision to uphold an Alberta Court of Appeal conviction against a Calgary man, coupled with new legislation eliminating the man’s defence of “evidence to the contrary,” will make it virtually impossible to prove a client has not consumed enough to be under the influence of alcohol.

“Do we want a system where presumption of innocence is gone and the checks and balances are being compromised?” Dunn, whose practice is 90 percent defending, accused drunk drivers, said after reading the decision.

“I think the legislation, while well intended, misses the mark.”

[The accused] has unsuccessfully argued that testimony of any expert showed he may not have been over the .08 legal limit because he had only six beers spaced evenly over a 3 ½ -hour period when stopped in February 2003.

Dr. Gerry Malycky, an often-used expert in this province, conducted tests six months later that concluded if [The accused], who had breathalyzer readings of .14 had only drunk that much alcohol as he claimed in the time admitted, he should have been between .64 and .109

These “straddle” cases, in which the hypothetical range given by the expert are both over and under the legal limit, will no longer be accepted when the Criminal Code amendments take effect on July 2.

Calgary’s Chief Crown prosecutor Gord Wong said it is too early to tell what the implications of the Supreme Court ruling will be, especially since the seven majority judges did not exactly agree. He said he and other prosecutors will be discussing the decision and legislation at an upcoming conference.

Dunn says he expects a flurry of Charter challenges to the new law, because it creates a presumption of guilt that is practically impossible to rebut.

“This takes the decision of guilt or innocence out of the trier of face (judge or jury),” he said. “Now we’ve got a certificate filed with the court that says you’re over .08. Not only is it admissible, it’s indefensible.”