Her Majesty the Queen v. Cook [Indexed as: R. v. Cook]

74 O.R. (3d) 438

[2005] O.J. No. 442

Docket: C40362

Court of Appeal for Ontario,

Cronk, Armstrong and Blair JJ.A.

February 8, 2005

Criminal law -- Driving "over 80" -- Presumption of identity -- Evidence to the contrary -- Defence toxicologist estimating accused's blood alcohol concentration ("BAC") at time of offence between 0 and 95 mg/ml depending on accused's elimination rate -- No evidence about accused's elimination rate -- Following Criminal Code amendments accused must lead evidence showing BAC below legal limit not merely different from breathalyzer reading -- Evidence that BAC straddled both sides of legal limit not amounting to evidence to the contrary -- Appeal from summary conviction dimissing appeal from conviction for driving "over 80" dismissed.

The accused was charged with driving over 80. His blood alcohol readings were 229 and 235 milligrams of alcohol in 100 millilitres of blood. He testified that he had had nothing to drink on the day of the offence and that he had consumed a 26- ounce bottle of rum between 1:00 p.m. and 6:30 p.m. the previous day. He filed the report of a toxicologist who offered the opinion that, given the accused's height and weight and his stated alcohol consumption, his blood alcohol concentration ("BAC") at the time of the offence would have been from 0 to 95 milligrams per 100 millilitres of blood. The toxicologist reported that given the breathalyzer readings and the time frame of the accused's drinking, the accused would have had to consume a minimum of 37.2 fluid ounces of rum. The trial judge found that the accused had not rebutted the presumption contained in s. 258(1)(d.1) of the Criminal Code, R.S.C. 1985, c. C-46. The accused was convicted. The summary conviction appeal court affirmed the conv iction, holding that the toxicologist's evidence could result in a BAC which exceeded 80 milligrams and accordingly was "not probative in terms of the defence under s. 258(1)(d.1) of the Criminal Code" as it only exonerated "those who are not slow eliminators". The accused appealed.

Held, the appeal should be dismissed.

Following the St. Pierre decision, Parliament amended the Criminal Code provisions dealing with the presumption of identity (that the reading from the breathalyzer is the same as the accused's BAC at the time of the offence). Until [page439] the amendments, evidence that tended to show the accused's BAC was other than the reading from the breathalyzer amounted to "evidence to the contrary" rebutting the presumption of identity. It is now necessary for an accused to present evidence that his BAC at the time of the offence was lower than the legal limit or the presumption of identity will apply.

It was not good enough to lead evidence which put the accused's blood alcohol level in a range which straddled both sides of the 80 milligram line.

APPEAL from the order of Shaughnessy R.S.J. sitting as a summary conviction appeal court judge, reported at [2003] O.J. No. 2813, 41 M.V.R. (4th) 39 (S.C.J.), dismissing the appellant's appeal from his conviction for operating a motor vehicle, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to subsection 253(b) of the Criminal Code, R.S.C. 1985, c. C-46.

R. v. Heideman, 2002 5146 (ON CA), [2002] O.J. No. 3461, 168 C.C.C. (3d) 542, 34 M.V.R. (4th) 18 (C.A.), folld R. v. St. Pierre, 1995 135 (SCC), [1995] 1 S.C.R. 791, [1995] S.C.J. No. 23, 22 O.R. (3d) 127n, 122 D.L.R. (4th) 619, 178 N.R. 241, 29 C.R.R. (2d) 273, 96 C.C.C. (3d) 385, 36 C.R. (4th) 273, 9 M.V.R. (3d) 1, revg (1992), 1992 7533 (ON CA), 10 O.R. (3d) 215, [1992] O.J. No. 1856, 76 C.C.C. (3d) 249, 16 C.R. (4th) 220, 39 M.V.R. (2d) 157 (C.A.), consd Other cases referred to R. v. Déry, 2001 10638 (QC CA), [2001] J.Q. No. 3205 (C.A.); R. v. Gibson, [2004] N.S.J. No. 443, 227 N.S.R. (2d) 165, 720 A.P.R. 165, 2004 NSSC 228, 8 M.V.R. (5th) 275 (S.C.); R. v. Gibson, 1992 2750 (SK CA), [1992] S.J. No. 233, 72 C.C.C. (3d) 28, 13 C.R. (4th) 165, 36 M.V.R. (2d) 144 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 253 [as am.], 258 [as am.] Interpretation Act, R.S.C. 1985, c. I-21, s. 25

Robert B. McGee, Q.C., for appellant. Joan Barrett, for respondent.

The judgment of the court was delivered by

[1] ARMSTRONG J.A.:-- Mr. Cook was convicted by Justice W.G. Beatty of the Ontario Court of Justice of operating a motor vehicle, having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(b) of the Criminal Code, R.S.C. 1985, c. C-46. His summary conviction appeal was dismissed by Regional Senior Justice Shaughnessy of the Superior Court of Justice. Mr. Cook seeks leave to appeal to this court and, if leave be granted, appeals the order of Justice Shaughnessy. [page440]

Factual Background

[2] At midday on June 21, 2001, Mr. Cook was driving his pickup truck from his farm near Orillia to Huntsville to attend a real estate course. An off-duty O.P.P. officer from the Parry Sound detachment was travelling behind Mr. Cook at about 12:20 p.m. for about 10 to 15 kilometres. The policeman observed that Mr. Cook's truck was travelling at a speed of 80 to 90 kph in a 100 kilometre zone and that he increased and decreased his speed as he drove. His car travelled onto the shoulder and also straddled the centre line several times. The officer followed Mr. Cook's truck into Huntsville where it turned into a motel and lightly struck the stairs to the motel entrance.

[3] The off-duty officer telephoned the local detachment for an officer from that detachment, who attended at the motel. The officer smelled stale alcohol on Mr. Cook's breath. Upon questioning, Mr. Cook denied that he had consumed alcohol that day, but admitted that he had done so the day before. A roadside screening test was administered, which Mr. Cook failed. He was taken to the local detachment where he was administered two breathalyzer tests which registered readings of 229 and 235 milligrams of alcohol in 100 millilitres of blood. The breathalyzer technician noted that Mr. Cook swayed slightly while turning on the heel-to-toe test. The technician could not offer an opinion that Mr. Cook was impaired. He was surprised that his physical tests were so good given the blood alcohol concentrations.

[4] Mr. Cook testified that on the day previous to his arrest, he drank a 26-ounce bottle of rum between 1:00 p.m. and 6:30 p.m. while he was hauling wood from his back lot and cutting grass. He made five or six trips during the afternoon and after each trip, he would pour himself a drink of rum and cranberry juice.

[5] Mr. Cook's wife testified that she arrived home at about 6:45 p.m. to 7:00 p.m. She observed that her husband was having a drink of rum. From the time when she arrived home until they went to bed, Mr. Cook did not have another drink.

[6] Mr. Cook testified that he did not know the location of the Huntsville library where the real estate course was being held. While driving towards Huntsville, he was looking for an address of the library in his briefcase which was beside him in the front seat. This explained his manner of driving. He went into the motel to ask for directions.

[7] The trial judge accepted that Mr. Cook's explanation for his poor driving was plausible.

[8] Counsel for Mr. Cook filed a report of a toxicologist. The toxicologist offered the opinion that, given Mr. Cook's height and [page441] weight (six feet and 268 pounds) and his stated consumption of alcohol between 1:00 p.m. and 7:00 p.m. on June 20th, his blood alcohol concentration at 12:30 p.m. to 1:00 p.m. on June 21st would have been from 0 to 95 milligrams per 100 millilitres of blood.

[9] The toxicologist also reported that given the breathalyzer readings obtained by the O.P.P. and the time frame of Mr. Cook's drinking, he would have had to consume a minimum of 37.2 fluid ounces of rum.

[10] The toxicologist further reported that:

A review of the Breathalyzer Test Procedure and Record indicates that the Breathalyzer appeared to be in proper working order.

The Breathalyzer 900A provides a reliable measurement of the BAC [blood alcohol concentration] of a subject when it is in proper working order and operated by a qualified Breathalyzer technician following protocol.

[11] The question for the trial judge was whether Mr. Cook had rebutted the presumption contained in s. 258(1)(d.1) of the Criminal Code:

... evidence of the result of the analyses is, in the absence of evidence tending to show that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed did not exceed eighty milligrams of alcohol in one hundred millilitres of blood, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed exceeded eighty milligrams of alcohol in one hundred millilitres of blood;

[12] The trial judge cited R. v. St. Pierre, 1995 135 (SCC), [1995] 1 S.C.R. 791, [1995] S.C.J. No. 23 and concluded:

I find the reasoning in R. v. St. Pierre, 1995 135 (SCC), [1995] 1 S.C.R. 791, a decision of the Supreme Court of Canada, helpful in analyzing evidence to the contrary, although that was a certificate case. Evidence to the contrary may either rebut, number one, the presumption of identity; that is, the evidence which raises a reasonable doubt that the levels of blood alcohol at the time of driving and the time of the test were identical or; two, the presumption of accuracy, that is the results of the breathalyzer were not reliable for some reason.

The uncontroverted evidence of the toxicologist was that the testing procedure was proper, the instrument is reliable and the defendant would have to consume a minimum of 37.2 fluid ounces of Bacardi Rum to reach the test readings.

There is no evidence that would indicate that the blood alcohol level at the time of driving was any different than that at the time of the test and the accuracy of the test is unchallenged.

The only conclusion that can be drawn from this evidence is that the quantity of alcohol or the drinking pattern giving rise to such readings was different than that alleged by the defendant.

The impaired driving charge is dismissed. A conviction will be entered for the "Over 80" charge under s. 253(b). [page442]

Summary Conviction Appeal

[13] Mr. Cook appealed his conviction to the summary appeal court. In that court, counsel for Mr. Cook submitted that the trial judge erred in that:

(a) he failed to consider "evidence to the contrary" within the context of s. 258 of the Criminal Code;

(b) he failed to consider "evidence to the contrary" which favoured the appellant and, further, did not adequately assess that evidence which raised a reasonable doubt on the whole case against the appellant; and

(c) he failed to determine if the evidence adduced by the appellant was sufficient to support an inference of reasonable doubt.

[14] The summary appeal court judge found that the trial judge properly considered the law as detailed in R. v. St. Pierre in relation to s. 258 of the Criminal Code.

[15] He also concluded that the trial judge considered all the evidence led by the defence and gave appropriate effect to the correct burden of proof.

[16] The summary appeal court judge then turned his mind to this court's reasons in R. v. Heideman, 2002 5146 (ON CA), [2002] O.J. No. 3461, 168 C.C.C. (3d) 542 (C.A.). In Heideman, the appellant was stopped by the R.I.D.E. programme and failed a roadside screening test. He was arrested and produced identical readings of 100 milligrams of alcohol in 100 millilitres of blood on his breathalyzer test. The appellant testified that he had consumed six beers over a four and a half hour period. A toxicologist testified that an average person of the height and weight of Mr. Heideman, who consumed the stated amount of alcohol over four and a half hours, would have registered 71 milligrams of alcohol rather than 100. However, if the appellant was a slow or fast eliminator, the toxicologist testified that there could be a range of between 47 and 95 milligrams.

[17] The appellant argued that he should be acquitted because he was probably a fast eliminator, a category into which the majority of Canadians fall. The trial judge rejected the defence submission. The summary appeal court judge dismissed his appeal. In dismissing his appeal in this court, Carthy J.A. considered the meaning of the words in s. 258(1)(d.1) of the Criminal Code: "evidence ... tending to show ... did not exceed 80 milligrams". He then considered the application of these words to the facts of the case in Heideman at paras. 12-14: [page443]

To this contextual opening I would add some observations. Parliament must be taken to know that the body eliminates alcohol over time and that different persons eliminate at different rates. In applying the test levels to an offence time up to two hours earlier Parliament has built the elimination factor into the choice of 80 milligrams as a standard and, in doing so, has treated all drivers as one. In other words, Parliament may have inserted into the formula a slower than average elimination rate and, as a balance, a higher offence level than might otherwise have been imposed.

These contextual considerations lead me to conclude that "tending to show" does not mean evidence "bearing on the subject", or evidence that "could show". On the other hand, it need not be persuasive. The guilt or innocent stage has not been reached. However, the evidence must be probative of the issue before the court; that is, probative of the level of alcohol in this person's blood at the time of the offence. The opinion must offer a choice to acceptance of the certificate as indicating the blood level at the time of the offence, and must indicate that the level was below .08.

... The evidence in this case does not exonerate all persons -- only those who are not slow eliminators. It is therefore not probative of this appellant's blood level at the time of the offence.

[18] The summary conviction appeal court judge applied the reasoning of Carthy J.A. in Heideman to the case at bar and concluded that the evidence of the toxicologist could result in a blood alcohol level of Mr. Cook which exceeded 80 milligrams. On that basis, he reasoned that the toxicologist's evidence was "not probative in terms of the defence under s. 258(1)(d.1) of the Criminal Code" as it only exonerated "those who are not slow eliminators".

This Appeal

[19] In this appeal, counsel for Mr. Cook made submissions which were similar to those made to the summary appeal court. He argued that the trial judge erred in the application of reasonable doubt and in his assessment of "evidence to the contrary". Counsel further submitted that the trial judge misapprehended the whole of the evidence.

[20] Counsel for Mr. Cook also argued that the summary appeal court judge should not have relied upon the judgment of this court in Heideman as it was not before the trial judge. In the alternative, he submitted that if Heideman is applicable, there should be a new trial to allow the appellant to be tested in order to lead evidence in respect of his elimination rate. Counsel reasoned that since the judgment in Heideman was not available at trial, it was unfair for the summary appeal judge to rely on that case.

[21] The judgment in Heideman was released after the decision of the trial judge and counsel for Mr. Cook submitted that this court has now interpreted s. 258(1)(d.1) of the Code in such a way that [page444] requires an accused person to call evidence of specific elimination rates in order to rebut the presumption contained in that section. He further submitted that counsel, who are engaged in the defence of impaired driving cases, generally have not been required to call such evidence to rebut the presumption in the so-called "straddle cases" where a toxicologist offers an opinion that, depending upon the elimination rate, the blood alcohol level could be on either side of 80 milligrams.

Analysis

[22] Both the trial judge and the summary appeal court judge cited St. Pierre in addressing the issue whether the evidence of the defence was sufficient to rebut the presumption contained in s. 258(1)(d.1) of the Criminal Code. While St. Pierre is a useful starting point for the analysis, it is important to appreciate that Parliament amended the language of the presumption after the Supreme Court released that judgment.

[23] At the time of the offence in St. Pierre, the presumption was contained in s. 258(1)(c) of the Code and read:

258(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3),

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [not proclaimed]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses.

(Emphasis added) [page445]

[24] Arbour J.A. in R. v. St. Pierre (1992), 1992 7533 (ON CA), 10 O.R. (3d) 215, [1992] O.J. No. 1856 (C.A.), at p. 235, in her dissenting judgment in this court, described the presumption in s. 258(1) (c) as follows:

If the breath samples were taken in accordance with that section, it will be presumed, everything else being equal, that the reading at the time of the offence would have been the same as the reading at the time of the test.

Arbour J.A. referred to this presumption as "the presumption of identity". Iacobucci J., writing for the majority in the Supreme Court of Canada, referred to the presumption as "the temporal presumption".

[25] The issue in St. Pierre was whether the presumption could be rebutted by leading evidence to show that the blood alcohol level at the time of the test was different from the level at the time of the offence or whether it was necessary to lead evidence that the blood alcohol level was below 80 milligrams. Iacobucci J., in agreement with Arbour J.A., concluded at paras. 22 and 45:

Evidence to the contrary, as articulated in s. 258(1)(c) of the Criminal Code, means evidence sufficient to show that the temporal presumption, or as Arbour J.A. calls it the presumption of identity, should not operate to deem the blood alcohol level of the motorist at the time of breathalyzer testing to be the same as the blood alcohol level at the time of driving. The central issue of this appeal is the manner in which this presumption may be rebutted.

In the first place, the plain wording of the section supports the conclusion that "evidence to the contrary" means simply that the blood alcohol level at the time of the test was different from the time of the offence. It does not support the conclusion that the evidence must show that the accused's blood alcohol level was below 0.8.

(Emphasis in original)

[26] When Parliament amended the language of the presumption of identity after the Supreme Court of Canada's judgment in St. Pierre, it did so by focusing on the blood alcohol level at the time of the alleged offence rather than at the time of the test. In order to rebut the presumption, it is now necessary to lead "evidence tending to show that the concentration of alcohol in the blood of the accused at the time the offence was alleged to have been committed did not exceed 80 milligrams ...". It is no longer good enough to simply show that the blood alcohol level at the time of the test was different from the time of the offence.

[27] In the judgment of this court in Heideman, Carthy J.A. addressed the meaning of the words in s. 258(1)(d.1)"evidence ... tending to show ... did not exceed 80 milligrams".

[28] Carthy J.A. concluded that it is not good enough to lead evidence which puts the accused's blood alcohol level in a range which straddles both sides of the 80 milligram line. [page446]

[29] After oral argument in this case, counsel for the Crown sent us a recent judgment of the Nova Scotia Supreme Court, R. v. Gibson, 2004 NSSC 228, [2004] N.S.J. No. 443, 8 M.V.R. (5th) 275 (S.C.), which considered the presumption of identity in s. 258(1)(d.1) of the Code. Warner J. in that case declined to follow this court's judgment in Heideman. Warner J. referred to a number of other cases where expert evidence, accepted by the courts, established that the elimination rate of a person may vary from day to day. Warner J. concluded at para. 27:

If evidence given by toxicologists to rebut the presumption of identity, which includes the application of a range of absorptions/elimination rates of an average person, was not admissible to rebut the presumption, and because it appears impossible, for all practical purposes, to measure the exact absorption/elimination rate at the time of the offence, then the presumption of identity ceases to be a rebuttable presumption and becomes an irrebuttable fact. This could lead to the conviction of persons whose BAC at the time of the offence was below 80.

[30] The facts of this case are similar to those in Heideman and I am obliged to apply the principle of that case here. That said, it is apparent that there is a division in the courts as to the proper interpretation of s. 258(1)(d.1) of the Criminal Code. In addition to the decision of the Nova Scotia Supreme Court, see R. v. Gibson, 1992 2750 (SK CA), [1992] S.J. No. 233, 72 C.C.C. (3d) 28 (C.A.), which was considered but not followed in Heideman, and R. v. Déry, 2001 10638 (QC CA), [2001] J.Q. No. 3205 (C.A.). It may be that this issue will now have to be settled by the Supreme Court of Canada.

[31] In respect of the argument made by counsel for Mr. Cook that he should, at least, be entitled to a new trial in order to lead evidence of Mr. Cook's elimination rate, I do not agree. While the law has changed since St. Pierre, it is as a result of an amendment to the Code which Parliament obviously passed in order to close what it must have considered to be a loophole in s. 258(1)(c) of the Code. I see no unfairness in the circumstances that obtain here.

[32] In respect of the other issues raised by counsel for Mr. Cook, I do not agree that the trial judge misapplied the burden of proof, failed to consider the so-called "evidence to the contrary" (with one exception), or generally misapprehended the evidence. The trial judge found that there was "no evidence that would indicate that the blood alcohol level at the time of driving was any different than that at the time of the test and the accuracy of the test is unchallenged". That statement is only partially correct. Counsel for Mr. Cook did not challenge the accuracy of the test. However, he did lead evidence through the toxicologist that the blood alcohol level was considerably different at the time of driving from the time of the test. With respect, I think the trial judge may have confused [page447] the presumption of identity with the presumption of accuracy which operates by reason of s. 258(1)(g) of the Code and s. 25 of the Interpretation Act, R.S.C. 1985, c. I-21. In any event , I do not believe it makes any difference to the result.

[33] In the result, I would grant leave to appeal and, for the above reasons, I would dismiss the appeal.

Appeal dismissed.