PRESUMPTION OF BAC - "BOLUS DRINKING" EXAMINED (AGAIN)

A new trial was ordered by the Ontario Court of Appeal when they concluded that a trial judge did not properly consider evidence that Mr. Kahl drank a mickey after a collision. Mr. Kahl testified that he would always drink a mickey of whiskey just before turning himself in for his weekend intermittent sentence.  However on this particular trip he had a collision on the way to the correctional centre and testified that he "chugged"  7 - 10 ounces of whiskey after driving but before the police arrived at the scene (as he knew they would be taking him to jail). R. v. Kahl, 2015 ONCA 255

PRESUMPTION OF BAC - "BOLUS DRINKING" EXAMINED

There was an acquittal at trial when the court concluded that the Crown had failed to prove the expert's assumption of no bolus drinking beyond a reasonable doubt.  Mr. Saul's blood samples were taken more than two hours after the time of the single vehicle roll-over, which killed his passenger.  Therefore an expert had to be called to extrapolate the blood sample results, and that expert's opinion was based on an assumption that Mr. Saul had not consumed "alcohol within 30 minutes of the accident." The court defined "bolus drinking" as the consumption of a large amount of alcohol within 30 minutes of the alleged driving offence.  The Crown successfully appealed the acquittal and a new trial was ordered:

[The Supreme] Court stated that in the absence of any evidence on the issue, a court is entitled to apply a common sense inference that most individuals do not bolus drink. In this case, the trial judge's finding of a reasonable possibility the responded engaged in bolus drinking was based solely on conjecture or speculation. R. v. Saul, 2015 BCCA 149

AUTOMATIC ROADSIDE DRIVING PROHIBITION CASE IS ON SUPREME COURT OF CANADA'S SPRING DOCKET

A review of the court case of Sivia v. British Columbia, 2014 BCCA 79 appears in this week's issue of The Lawyers Weekly.  The article notes that the case deals with whether provinces can use their constitutional powers over property and civil rights to avoid Charter protections and issues that arise in criminal prosecutions for impaired driving by creating administrative prohibition regimes with automatic penalties and restricted reviews. The article states that the Supreme Court of Canada will be hearing arguments on the case this spring, and that the case has attracted the intervention of the Attorney General of Canada, as well as the attorneys general of Quebec, Ontario, Alberta, Saskatchewan and Manitoba. The Lawyers Weekly, April 10, 2015

THE HUMAN COST OF IMPAIRED DRIVING IN CANADA

The Federal Department of Justice has released the Victims of Crime Research Digest, Issue No. 7. Their research concluded, among other things, that incident counts of impaired driving causing death are high in the more populous provinces. However, there are a few examples of high counts of incidents and high rates in less populated provinces. In 2012, for example, Saskatchewan, Manitoba, and New Brunswick all report rates of impaired driving causing death higher than the national rate of .40, whereas Québec, Ontario, Alberta, and British Columbia have recorded rates lower than the national rate. The Human Cost of Impaired Driving in Canada

SENTENCE - 60 DAY INTERMITTENT JAIL SENTENCE FOR IMPAIRED CAUSING BODILY HARM UPHELD DUE, IN PART, TO GLADUE FACTORS

The trial judge sentenced Ms. Schinkel to 60 days jail followed by two years probation when she pleaded guilty to impaired causing bodily harm, dangerous causing bodily harm and refusal. The facts were described as "rather egregious":

She knew that she had drunk too much, and she had drunk quite a lot. She drove for quite a considerable period of time in a busy part of the Alaska Highway and Whitehorse. She was all over the road; driving with one flat tire; at high speeds, 130 to 140 kilometres per hour; in the wrong lane; going through stop signs; and hitting medians. When she was coming down the hill into Whitehorse, she hit another car and that car was pushed off the road and across the median and over a bank. The offences had a significant effect on the young victim, a 16-year-old woman, who suffered serious physical and emotional injuries, as well as property and income loss. With respect to the physical injuries, she sustained a severe head injury, which was a flap laceration that needed 15 stitches and a major concussion, whiplash and bruises. With regard to the emotional injuries, the victim suffered, amongst other things, shock, distress, fear, aggravation, anxiety, and depression. The Court of Appeal for Yukon upheld the sentence:

I consider the judge’s discussion of Gladue reflected he was alive to its principles. In particular, the judge recognized and gave significant weight to Ms. Schinkel’s healing and rehabilitation. He determined, on hearing from various speakers, including Ms. Schinkel herself, that she was rehabilitated. He identified the importance of her role in healing her family, which for generations had experienced systemic Aboriginal suffering. R. v. Schinkel, 2015 YKCA 2