Acquittals For Drunk Driving In Alberta

Have you been charged with drunk driving in Alberta? An impaired driving charge is a serious offence that carries the impact of a criminal record. It is important that if you are facing DUI charge that you contact a criminal defence lawyer that understands the new drinking and driving laws in Alberta. The following document outlines the case of The Crown vs Bradley Thomas Bennett in a case of drunk driving where the accused received an acquittal for the charges. If you are in similar circumstances, contact our law office today for the advice and guidance needed for these matters.

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In the Court of Appeal of Alberta
Citation: R. v. Bennett, 2004 ABCA 116

Date: 20040329
Docket: 0301-0312
Registry: Calgary


Her Majesty the Queen


- and -

Bradley Thomas Bennett



Memorandum of Decision of
The Honourable Mr. Justice O’Leary (in Chambers)

Application for Leave to Appeal from the
Summary Conviction Appeal from the Decision of
The Honourable Madam Justice E.A. Hughes
dated the 3rd day of October, 2003


Memorandum of Decision of
The Honourable Mr. Justice O’Leary

[1] This is an application for leave to appeal the decision of a summary conviction appeal court affirming a conviction under s. 123(b) of the Criminal Code. The applicant contends the conviction should be ser aside as it is inconsistent with his acquittal on a related charge.

[2] The applicant was charged in the same information with two driving offences under the Criminal Code arising from the same events: (i) operating a motor vehicle while having a blood/alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood in violation of s. 123(b) (“over .08″), and (ii) operating a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 123(a) (“impaired driving”). The applicant pleaded not guilty to both counts. The trial judge excluded the Certificate of Analysis with readings of .260 and .270, and the applicant was acquitted on the over .08 charge. The Crown called no other evidence with respect to the impaired driving count and an acquittal was also entered on that charge.

[3] The Crown appealed both acquittals but later abandoned its appeal of the impaired driving acquittal. The summary conviction appeal court allowed the appeal and ordered a new trial on the over .08 charge. R. v. Bennett 2002 ABQB 612 (CanLII), (2002), 321 A.R. 129, 2002 ABQB 612.

[4] The Certificate of Analysis was admitted in evidence at the second trial. The applicant did not testify but called expert opinion evidence on the effect of various blood/alcohol levels on ability to operate a motor vehicle:

Q: … at what – at what level does – do people’s ability to operate a motor vehicle become impaired by alcohol?

A: It depends upon his tolerance to the effects of alcohol. Generally below .05 one is not impaired. When I say 05 I’m talking about 50 milligrams of alcohol per 100 millilitres of blood one is not impaired. However, a small segment of the population would probably be impaired even below .05. Between 50 and 100 milligram per cent one may be impaired by alcohol and at levels in excess of 100 milligrams per cent everybody’s ability to drive an automobile would be impaired by alcohol.

With respect to the applicant’s blood/alcohol level, the witness testified:

Q: So, in this particular case if the – the breathalyzer certificate is correct and Mr. Bennett’s readings are 260 and 270, is there any doubt that his ability to operate a motor vehicle would be impaired by alcohol?

A: If that was his blood alcohol concentration at the time of driving, then his ability to drive an automobile would no doubt have been impaired by alcohol. [pp. 66/20 - 77/5]

[5] The Crown did not challenge the admission or substance of the expert evidence.

[6] The applicant’s argument that conviction on the .08 charge would be inconsistent with his acquittal of impaired driving was rejected by the trial judge. The summary conviction appeal court also declined to accept the argument: R. v. Bennett, 2003 ABQB 812 (CanLII), [2003] A.J. No. 1237 (QL), 2003 ABQB 812.

[7] The applicant maintains: (i) the acquittal of impaired driving amounted to a finding of fact that his ability to operate a motor vehicle was not impaired at the relevant time:R. v. Grant 1991 CanLII 38 (SCC), (1991), 67 C.C.C. (3d) 268 at 279 (S.C.C.); (ii) his certified blood/alcohol levels and the expert evidence leave no doubt his ability was impaired at that time; and therefore (iii) his conviction of over .08 was inconsistent with his acquittal of impaired driving and offended the rule against inconsistent verdicts.

[8] The applicant submits the failure of the summary conviction appeal court judge to find the conviction of over .08 was a verdict inconsistent with his acquittal of impaired driving was an error of law justifying an order granting leave to appeal.

Test for Leave
[9] The test for leave to appeal a summary conviction is two-fold. First, the appeal must raise an issue of law alone: Criminal Code, R.S.C. 1985, c. C-46, s. 839; R. v. Cyr [1996], A.J. No. 1101 (C.A.) (QL). Second, the issue must be of public importance; a mere error of law is not, by itself, sufficient: R. v. Chaluk (K.W.) (1998), 237 A.R. 366 (C.A.). The question of law must be of sufficient public importance to merit an appeal. As stated by Russell J.A. in Chaluk, supra, at para. 7:

[t]his public aspect underscores both the insufficiency of mere error, as well as the need to demonstrate the potential for significant impact on the administration of justice. Well settled principles of law do not present that sort of further potential. But it is also of public importance that injustices flowing from clear errors of law not be condoned.

[10] Among the factors relevant to the determination of whether a proposed appeal raises an issue of law of public importance is whether it has arguable merit: R. v. Ehli reflex, (2000), 277 A.R. 170 at para. 9 (C.A.). Other courts have considered, in this context, whether, if leave were granted, the appeal would have a viable chance of success: R. v. Zamfirov 1996 CanLII 683 (ON CA), (1996), 92 O.A.C. 317, 1996 CarswellOnt 3039 at para. 6; R. v. Brunner, [1996] B.C.W.L.D. 1075, 1996 CarswellBC 629 at para. 3 (C.A.).

In my view, the issue raised here is one of law alone. The applicant has satisfied the first branch of the test. Consideration of the issue would not require an examination and evaluation of the underlying facts. Rather, it would involve the application of the established principle of inconsistent verdicts to the undisputed circumstances of this case.

[11] I have concluded that the application for leave must fail on the question of arguable merit.

[12] The test for determining whether verdicts are inconsistent is stated in R. v. McShannock reflex, (1980), 55 C.C.C. (2d) 53 (Ont. C.A.) at 56:

[t]he onus is on the appellant to show that the verdicts are so at odds that no reasonable jury who understood the evidence could have properly arrived at that verdict…. Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise.

[13] Impairment is not an essential element of an offence under s. 123(b): R. v. Pilling, 1972 CanLII 218 (AB QB), [1972] 4 W.W.R. 334 (Alta. Dist. Ct), R. v. Casson, reflex, [1976] 4 W.W.R. 561 (Alta. C.A.). In Pilling the Court held there was no inconsistency in an acquittal of impaired driving and a conviction of over .08 where the charges stemmed from the same transaction. The Court held that impairment is not an essential element of an over .08 offence. A conviction for over .08 was upheld notwithstanding a previous acquittal of impaired driving. This Court later came to the same conclusion in Casson. Similarly, an acquittal of over .08 may not be inconsistent with a conviction of impaired driving.

[14] The verdicts in the case at bar are not legally inconsistent. Since impaired ability to drive is not an essential element of the offence of over .08, the applicant’s conviction of that offence was not inconsistent with his earlier acquittal of impaired driving.

[15] The applicant contends this case is distinguishable from Pilling and Casson as, here, there was evidence the applicant’s blood/alcohol level necessarily impaired his ability to drive. His acquittal of impaired driving was conclusive that he was not impaired, whereas the evidence at his trial on the over .08 charge left no doubt his ability to drive was impaired. He submits that “on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis.” He points to a statement in Casson which, he argues, supports his position and indicates the result in that case may have been different had there been such evidence. The Court said at 512:

The issue of whether or not the accused was impaired was not in issue in the trial of the second count [over .08]. The verdict on the first count [impaired driving] could not be construed as being based on a finding that the accused had consumed no liquor. Further, there was no evidence to support the conclusion that everyone’s ability to drive is necessarily impaired if their blood alcohol exceeds .08. It follows that the verdict of not guilty on count 1 is not inconsistent with the verdict of guilty on count 2. [emphasis added]

[16] The highlighted passage does not say that the presence of such evidence in the trial of an over .08 offence must render a verdict of guilty inconsistent with an acquittal of impaired driving. Impairment was not an issue in the over .08 trial and evidence of the applicant’s acquittal of impaired driving and the expert evidence of impairment were irrelevant. The applicant could not, by gratuitously leading evidence that he was necessarily impaired at the material time, put the question of impairment in issue and raise that issue to the status of an essential element of the over .08 offence. It is not, therefore, irrational or illogical to convict of one and acquit of the other. The verdicts are not rationally or logically inconsistent.

[17] The applicant’s appeal has no arguable merit. Leave to appeal is denied.

Application heard on March 9, 2004

Memorandum filed at Calgary, Alberta
this 29th day of March, 2004

O’Leary J.A.

Contact Our DUI Lawyers In Calgary Today

If you are facing serious DUI charges, don’t hesitate to call our criminal law office and speak with an experienced impaired driving lawyer who can help you with this matter. Impaired driving charges do carry a criminal record so it is extremely important that they are handled by a legal team that has a strong understanding of Alberta’s new drunk driving laws. Call our lawyers in Calgary and let us help you get back your license.

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Posted on January 30th, 2013