If judges find a certain defence to a drunk-driving charge credible, is it fair that Parliament should take the possibility of that defence away? The Supreme Court of Canada said unanimously this week that the Conservative government's 2008 removal of a common defence to an impaired-driving charge meets constitutional standards of fairness. It's a troubling ruling – though at least the court made sure it's still possible for accused people to have a realistic chance at poking holes in the readings of a breathalyzer machine.
This isn't to question the seriousness of impaired driving in Canada. It continues to be a major problem implicated in more than a thousand deaths a year. But the very seriousness of the crime, and of the consequences of being found guilty, underscore why accused people need a real chance to defend themselves.
The machines, and the people who work them, are fallible, according to the Canadian Society of Forensic Science, which has worked closely with the Canadian government since the late 1960s on standards for breathalyzers. And the Supreme Court agrees – the possibility "is not merely speculative, but very real."
The defence that the government abhorred – because it worked – was known as the "two-beer" defence: Accused people would claim to have had just two beers (or three, or one), and would obtain a toxicology report that at their height and weight, based on the amount they said they imbibed, the breathalyzer machine's reading could not have been accurate.
The Supreme Court said there was a scientific "disconnect"; the breathalyzer machines work when in proper repair and when a trained technician is in charge, studies show; so the defence should not have been as effective as it proved to be. It seems a reasonable point. But then ask – why, if judges find the defence credible enough in individual cases, and judges are deemed by Canadian justice to be the experts in sifting evidence and determining the facts, should the defence be taken away? Isn't that a disconnect, too?
The 2008 law that removed the "two-beer defence" would have made it almost impossible to defend against the machine's reading. Accused persons would also have had to show not only a failure of machine or technician but that the failure led to the reading over the legal limit; and finally, they would need the two-beer defence to show that they weren't over the limit. It verged on the impossible.
Instead, the court snipped out the parts it didn't like. It will now be enough to raise a reasonable doubt about the machine's functioning or of the technician who operated it. That will start a new era, according to Toronto lawyer Jonathan Rosenthal, of requests for disclosure of all manner of information about the machine and technician.
And at least we will not have machine justice.