R. v. Gibson (R.A.), (2008) 264 N.S.R.(2d) 331 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 17, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 264 N.S.R.(2d) 331 (SCC);2008 SCC 16;JE 2008-820;55 CR (6th) 201;77 WCB (2d) 168;264 NSR (2d) 331;373 NR 1;292 DLR (4th) 1;230 CCC (3d) 97;429 AR 327;[2008] 1 SCR 397;[2008] SCJ No 16 (QL);59 MVR (5th) 19;EYB 2008-132174

R. v. Gibson (R.A.) (2008), 264 N.S.R.(2d) 331 (SCC);

    847 A.P.R. 331

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.S.R.(2d) TBEd. AP.064

Robert Albert Gibson (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario (intervenor)

(31546)

Martin Foster MacDonald (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario (intervenor)

(31613; 2008 SCC 16; 2008 CSC 16)

Indexed As: R. v. Gibson (R.A.)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

April 17, 2008.

Summary:

In the Gibson case, an accused was charged with driving a motor vehicle while having an excessive blood-alcohol content. The lower of his two breathalyzer readings was .10. A defence toxicologist opined that based on the accused's stated level of consumption, his age, weight and height, and the average absorption/ elimination rate of all persons, his blood-alcohol level at the time of driving would have been between .04 and .105. Section 258(1)(d.1) of the Criminal Code presumed the blood-alcohol level at the time of testing to be the level at the time of driving, subject to rebuttal by "evidence tending to show" that the level did not exceed .08 at the time of driving.

The Nova Scotia Provincial Court, in a judgment reported at (2004), 225 N.S.R.(2d) 16; 713 A.P.R. 16, found the accused not guilty. The toxicologist's evidence of a range of .04 to .105 constituted "evidence tending to show" that the accused's blood-alcohol level at the time of driving was below .08. Section 258(1)(d.1) required "credible evidence which tends to show that the blood-alcohol level could have been under the legal limit". The Crown appealed.

The Nova Scotia Supreme Court, in a judgment reported (2004), 225 N.S.R.(2d) 16; 713 A.P.R. 16, dismissed the appeal. The court agreed that expert evidence as to the elimination rate of the average person could be probative (and relevant) as part of the "evidence to the contrary". The Crown appealed and sought leave to introduce fresh evidence on appeal (R.C.M.P. toxicologist).

The Nova Scotia Court of Appeal, in a judgment reported (2006), 243 N.S.R.(2d) 325; 772 A.P.R. 325, allowed the appeal, set aside the acquittal and ordered a new trial. Since the expert's opinion was not based on the accused's personal alcohol tolerance, it was not capable of rebutting the s. 258(1)(d.1) presumption as "evidence to the contrary". The Crown was denied leave to introduce "fresh evidence" on appeal, as the evidence was available at trial with due diligence.

In the MacDonald case, the accused was also convicted of operating a motor vehicle while having a blood-alcohol level that exceeded the legal limit. At trial, he led expert evidence for the purpose of tending to show that his blood-alcohol level was under the legal limit at the time of driving and that the breathalyzer tests were inaccurate. The Alberta Court of Appeal held that the expert evidence did not tend to show that the accused's blood-alcohol level was actually under .08. The expert introduced a range of possible blood-alcohol levels based upon population averages, without evidence of where the accused fit within that range. He appealed.

The Alberta Court of Queen's Bench, in a judgment reported at [2004] A.R. Uned. 583, dismissed the appeal on the basis that the "straddle evidence" was speculation or conjecture. The accused appealed.

The Alberta Court of Appeal, in a judgment reported (2006), 391 A.R. 140; 377 W.A.C. 140, dismissed the appeal, noting that the evidence failed to identify the accused's personal absorption and elimination rates at the material time. The expert's evidence was not probative on the concentration level of alcohol in the accused's blood when apprehended. The evidence did not constitute evidence to the contrary for the purpose of rebutting either the presumption of identity or the presumption of accuracy. Both Gibson and MacDonald appealed. The appeals were heard together.

The Supreme Court of Canada, Deschamps and Binnie, JJ., dissenting, dismissed the appeals.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - At issue was whether expert evidence (straddle evidence) that an accused's blood-alcohol level could have been over or under the legal limit at that time of driving, depending upon the actual rate of absorption and elimination, could rebut the presumption in s. 258(1)(d.1) of the Criminal Code, which presumed the blood-alcohol level at the time of testing to be the level at the time of driving, unless rebutted by "evidence tending to show" that the level did not exceed .08 at the time of driving - The Supreme Court of Canada, per Charron, J. (Bastarache, Abella and Rothstein, JJ., concurring), held that straddle evidence was an attack on the presumption itself and could never constitute "evidence tending to show" (i.e., range of hypothetical values had to be entirely under the legal limit) - "Evidence tending to show" required evidence that, based on the accused's level of consumption, his blood-alcohol level would not have exceeded the legal limit at the time of driving, regardless of how fast or slow he metabolized alcohol - LeBel, J. (McLachlin, C.J.C., and Fish, J., concurring) disagreed that straddle evidence could never constitute "evidence tending to show", stating that "both expert evidence of alcohol elimination rates in the general population and straddle evidence can be relevant and are therefore not inherently inadmissible for the purpose of rebutting the presumption in question. However, the probative value of such evidence will often be so low ... that it is not sufficient to rebut the presumption ... [I]n the absence of evidence tending to show that the blood-alcohol level of the accused at the time of the offence was below the legal limit, that evidence will rarely have sufficient probative value to rebut the presumptions." - LeBel, J., stated that "if an expert testifies that every person of the sex, age, height and weight of the accused would, on consuming the amount in question, have a blood-alcohol content below the legal limit, this is clearly relevant for the purpose of rebutting the presumption in s. 258(1)(d.1). ... If the expert testifies that most people would have been below the legal limit or even that some people would have been below the limit, the evidence does not become irrelevant but will, rather, be less probative." - Deschamps, J. (Binnie, J., concurring), rejected Charron, J.'s, Heideman approach and LeBel, J.'s, adoption of a narrow "prevailing direction approach" - Deschamps, J., adopted the traditional "prevailing direction approach", where evidence tending to show that a blood-alcohol level at the time of driving did not exceed the legal limit based on an elimination rate of 15 mg per hour (midpoint of general population's range of elimination), or on the actual elimination rate of the accused based on test results, raised a reasonable doubt - Deschamps, J., agreed with Charron, J., that post-offence testing was neither irrelevant or lacking in probative value.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - An accused was charged with driving a motor vehicle while having an excessive blood- alcohol content - The lower of his two breathalyzer readings was .10 - A defence toxicologist opined that based on the accused's stated level of consumption, his age, weight and height, and the average absorption/elimination rate of all persons, his blood-alcohol level at the time of driving would have been between .04 and .105 - Section 258(1)(d.1) of the Criminal Code presumed the blood-alcohol level at the time of testing to be the level at the time of driving, subject to rebuttal by "evidence tending to show" that the level did not exceed .08 at the time of driving - The trial judge found the accused not guilty - The toxicologist's evidence of a range of .04 to .105 constituted "evidence tending to show" that the accused's blood-alcohol level at the time of driving was below .08 - Section 258(1)(d.1) required "credible evidence which tends to show that the blood-alcohol level could have been under the legal limit" - The summary conviction appeal court affirmed the acquittal, finding that expert evidence as to the elimination rate of the average person could be probative (and relevant) as part of the "evidence tending to show" - The Nova Scotia Court of Appeal allowed the Crown's appeal, stating that "an expert opinion, based only on average tendencies of the population instead of the accused's rate of alcohol absorption or elimination, is without foundation" and could not constitute "evidence tending to show" - The Supreme Court of Canada affirmed the decision, agreeing that the "straddle evidence" adduced, based only on average population tendencies, failed to rebut the presumption.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was charged with operating a motor vehicle while having a blood-alcohol level that exceeded the legal limit - At trial, he led the expert evidence of Dr. Malicky for the purpose both of tending to show that his blood-alcohol level was under the legal limit at the time of driving and that the breathalyzer tests were inaccurate - The Alberta Court of Appeal noted that Malicky's evidence failed to identify the accused's personal absorption and elimination rates at the material time - Therefore, the court held that he could not opine on the concentration level of alcohol in the accused's blood when apprehended - His evidence was not probative on this point and, at most, threw the accused into the general mix by suggesting that he should be treated as an average person who might have absorbed and eliminated alcohol within the range expected of the population as a whole - Expert evidence of this nature did not constitute evidence to the contrary for the purpose of rebutting either the presumption of identity or the presumption of accuracy - The Supreme Court of Canada affirmed the decision, agreeing that the "straddle evidence" adduced, based only on average population tendencies, failed to rebut the presumption.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was charged with operating a motor vehicle while having a blood-alcohol level that exceeded the legal limit (.08) - At trial, he led the expert evidence of Dr. Malicky for the purpose both of tending to show that his blood-alcohol level was under the legal limit at the time of driving and that the breathalyzer tests were inaccurate - The Alberta Court of Appeal held that Malicky's evidence did not tend to show that the accused's blood-alcohol level was actually under .08 - Malicky introduced a range of possible blood-alcohol levels based upon population averages, without evidence of where the accused fit within that range - That led to speculation - Malicky acknowledged that impairment might commence at different levels in individuals - The accused was not tested for his alcohol tolerance and no evidence was adduced in that regard - The Supreme Court of Canada affirmed the decision, agreeing that the "straddle evidence" adduced failed to rebut the presumption.

Criminal Law - Topic 1376

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Proof of blood- alcohol content - [See all Criminal Law - Topic 1374 ].

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The Supreme Court of Canada, per LeBel, J. (McLachlin, C.J.C., and Fish, J., concurring), stated that "to be admissible, expert evidence must: (a) be necessary, in that it provides information outside the experience of the trier of fact; (b) be relevant, both in terms of logical relevance and in the sense that its prejudicial effects are outweighed by its probative value; (c) be given by a properly qualified expert; and (d) not be subject to any exclusionary rules." - See paragraph 56.

Evidence - Topic 7012

Opinion evidence - Expert evidence - General - Basis for opinion - The Supreme Court of Canada, per LeBel, J. (McLachlin, C.J.C., and Fish, J., concurring), stated that expert evidence was admissible if, inter alia, it was relevant and that "relevance was distinct from foundation. Even admissible expert evidence cannot be given any weight without a proper factual foundation ... The purpose of the factual foundation requirement is to ensure that expert evidence is reliable." - See paragraph 58.

Cases Noticed:

R. v. Gibson (1992), 100 Sask.R. 88; 18 W.A.C. 88; 72 C.C.C.(3d) 28 (C.A.), refd to. [paras. 13, 60, 89].

R. v. St. Pierre (G.R.), [1995] 1 S.C.R. 791; 178 N.R. 241; 79 O.A.C. 321, refd to. [paras. 14, 48].

R. v. Boucher (E.), [2005] 3 S.C.R. 499; 342 N.R. 42; 2005 SCC 72, refd to. [paras. 14, 39].

R. v. Proudlock, [1979] 1 S.C.R. 525; 24 N.R. 199, refd to. [paras. 17, 53].

R. v. Moreau, [1979] 1 S.C.R. 261; 23 N.R. 541, refd to. [para. 19].

R. v. Heideman (H.) (2002), 162 O.A.C. 270; 168 C.C.C.(3d) 542 (C.A.), refd to. [paras. 24, 53, 83].

R. v. Noros-Adams (L.A.) (2003), 175 Man.R.(2d) 68 (Q.B.), refd to. [para. 25].

R. v. Gaynor (D.C.) (2000), 272 A.R. 108 (Prov. Ct.), refd to. [para. 27].

R. v. Déry, [2001] Q.J. No. 3205 (C.A.), refd to. [paras. 30, 60, 89].

R. v. Phillips (1988), 27 O.A.C. 380; 42 C.C.C.(3d) 150 (C.A.), refd to. [para. 48].

R. v. Dubois (C.) (1990), 37 Q.A.C. 75; 62 C.C.C.(3d) 90 (C.A.), refd to. [paras. 51, 86].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 56].

R. v. A.K. and N.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641 (C.A.), refd to. [para. 57].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [paras. 58, 85].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 58].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 64].

R. v. Latour (P.) (1997), 101 O.A.C. 108; 116 C.C.C.(3d) 279 (C.A.), refd to. [para. 66].

R. v. Moen (T.), [2007] B.C.T.C. 376; 45 C.R.(6th) 361; 2007 BCSC 376, refd to. [para. 69].

R. v. Noros-Adams (L.A.) (2003), 190 Man.R.(2d) 161; 335 W.A.C. 16; 2003 MBCA 103, refd to. [para. 70].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 86].

R. v. Bellemare, [2001] Q.J. No. 3304 (C.A.), refd to. [para. 89].

R. v. Nault, [2001] Q.J. No. 3201 (C.A.), refd to. [para. 89].

R. v. Thiffeault, [2001] Q.J. No. 3198 (C.A.), refd to. [para. 89].

R. v. Milne (J.M.), [2006] A.R. Uned. 842; 43 M.V.R.(5th) 167; 2006 ABPC 331, refd to. [para. 97].

R. v. Hughes (G.J.) (2007), 420 A.R. 348; 2007 ABPC 180, refd to. [para. 97].

Authors and Works Noticed:

Solomon, Robert, and Chamberlain, Erika, Calculating BACs for Dummies: The Real-World Significance of Canada's 0.08% Criminal BAC Limit for Driving (2004), 8 Can. Crim. L.R. 219, pp. 223, 230 [para. 96]; 232 [para. 88]; 233 [para. 96].

Counsel:

Joshua M. Arnold, Michael S. Taylor and Stanley W. MacDonald, for the appellant, Robert Albert Gibson;

Alan D. Gold, for the appellant, Martin Foster MacDonald;

William D. Delaney and Frank Hoskins, Q.C., for the respondent, Her Majesty The Queen (31546);

Eric J. Tolppanen and David C. Marriott, for the respondent, Her Majesty The Queen (31613);

Philip Perlmutter and James V. Palangio, for the intervenor, the Attorney General of Ontario.

Solicitors of Record:

Arnold, Pizzo, McKiggan, Halifax, N.S.; Pressé & Mason, Bedford, N.S.; Garson, Pink, Halifax, N.S., for the appellant, Robert Albert Gibson;

Alan D. Gold Professional Corporation, Toronto, Ontario, for the appellant, Martin Foster MacDonald;

Public Prosecution Service of Nova Scotia, Halifax, N.S., for the respondent, Her Majesty The Queen (31546);

Attorney General of Alberta, Calgary, Alberta, for the respondent, Her Majesty The Queen (31613);

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario.

These appeals were heard on October 15, 2007, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On April 17, 2008, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Charron, J. (Bastarache, Abella and Rothstein, JJ., concurring) - see paragraphs 1 to 33;

LeBel, J. (McLachlin, C.J.C., and Fish, J., concurring) - see paragraphs 34 to 82;

Deschamps, J. (Binnie, J., concurring), dissenting - see paragraphs 83 to 99.