I only agree with that to this extent: where there is no basis on which the physical observations by the police officer would permit him to say, “I disbelieve the accused”. All a judge needs to have before the court in order to reject the two-beer defence is a basis on which to say, “I do not accept that testimony”. If the judge can say, “I do not accept that this person only had this amount to drink, and I have no doubt they drank much more than tha—”. If they have a basis to say that, then there will be a conviction that will stand. That basis can come as a result of a contradiction between people testifying as to how much they drank. Or it may well be simply that the physical description is consistent with only one conclusion, and that is that they were falling down drunk.
What I think may have caught some judges by surprise—and we're speculating here—is those cases in which there is really nothing but a low reading, not much for observations at all, and very plain, matter-of-fact sworn evidence, under oath, where someone says, “This is all I drank. I'm under oath, I'm telling the truth, and this is what I drank.” Yes, in those cases there should be an acquittal, according to the Court of Appeal, and I agree. If the judge doesn't have a basis for saying why they're finding the accused to be a liar, they would be reversed. They need to be able to explain why they're convinced the accused is a liar.
We're talking about something where the person has to go on the witness stand and commit perjury. These people aren't all committing perjury. Maybe some are, but a lot may well not be.
One of the things that I think we do overlook—and I'll be very brief—is that this new bill makes a comment about videotape testimony at proposed subsection 254(2.1). Quite frankly, a lot of our concerns could be beneficially addressed if, rather than saying, “For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a)”, in drunk driving law there should be an adverse influence if everything isn't videotaped
Videotapes cost nothing now. They can be e-mailed to defence counsel at no cost after they've been collected. It would cost us nothing. It would be a very effective enforcement tool. I often now do get them in some cases. Quite frankly, I'm waiting for one right now. If my client has bad symptoms on the videotape, I'll be pleading him guilty. If not, he has a very obvious defence.
Thank you.