R. v. Hall, 2007 ONCA 8

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

83 O.R. (3d) 641

Court of Appeal for Ontario,

Rosenberg, Goudge and LaForme JJ.A.

January 10, 2007

Criminal law -- Drinking and driving -- Bolus drinking -- Accused not testifying himself but relying on evidence of witness to establish that he engaged in bolus drinking -- Trial judge rejecting witness' evidence in its entirety -- No other evidence existing to undermine common sense inference of drinking at normal pace -- Trial judge being entitled to rely on that inference.

Criminal law -- Evidence -- Onus of proof -- Trial judge accepting accuracy of Crown expert's calculation of accused's blood alcohol concentration at time of driving without relying on any adverse inference drawn from accused's failure to testify and without shifting onus of proof from Crown -- Trial judge not erring in noting accused's silence as confirmatory of guilt given totality of evidence although preferable to avoid language that accused's silence permitted "adverse inference" to be drawn.

Criminal law -- Sentencing -- Driving offences -- Impaired driving causing death and dangerous driving causing death -- Total sentence of four years and ten months and ten year driving prohibition being affirmed on appeal -- Accused having prior related conviction and high moral blameworthiness.

The accused was convicted of impaired driving causing death, driving over 80 and dangerous driving causing death. His blood- alcohol readings more than two hours after the fatal accident were 133 and 129. The Crown's expert -- the only expert called at trial -- opined that the accused's blood- alcohol level at the time of the accident would have been between 129 and 165. The defence sought to invalidate the expert's opinion by demonstrating that the accused consumed a large quantity of alcohol five minutes before the accident. Because of this bolus drinking, it was argued, the alcohol may not have been absorbed into his bloodstream at the time of the accident, so that, although his blood-alcohol exceeded the legal limit later, it may not have been over 80 at the time of the accident. He relied on the testimony of two of the people who were with him that evening, but did not testifiy himself. The trial judge noted that the defence theory of bolus drinking depended on the evidence of one of those witnesses, P, that the accused drank half a glass of beer quickly within ten minutes of the accident. She found P's credibility to be dubious and his evidence unreliable, and concluded that the defence theory was not supported by the evidence. The accused was sentenced to a total of four years and ten months' imprisonment and a ten- year driving prohibition was imposed. The accused appealed the convictions and the sentence.

Held, the appeals should be allowed in part.

The Crown conceded that the conviction for driving over 80 should be conditionally stayed, and the concurrent sentence imposed for that charge vacated.

The trial judge did not err in her assessment of the bolus drinking evidence. She was aware that the onus was on the Crown to prove the lack of bolus drinking. She rejected P's evidence in its entirety. Having done so, there was no evidence whatsoever of bolus drinking, nor was there any other evidence to [page642] undermine the common sense inference of drinking at a normal pace, on which the trial judge was therefore entitled to rely. She was satisfied beyond a reasonable doubt that the accused's blood-alcohol level was well in excess of 80 at the time of the accident, and her conclusion was wholly supported by the evidence.

The trial judge noted that the evidence before her amounted to "an incriminating set of facts", stated that an explanation from the accused was called for, and concluded that she was entitled to draw an adverse inference from the accused's failure to testify. Where silence is mentioned by a trial judge as confirmatory of guilt given the totality of the evidence, but not as a "make-weight", there is no reversible error. That was the case here. It would have been preferable had the trial judge not used the term "adverse inference". However, it was clear that she was always aware of the burden of proof and where it lay. There was evidence, which she accepted, to prove the accuracy of the Crown expert's calculation of the accused's blood alcohol concentration at the time of driving. That conclusion was reached without any reliance on an adverse inference, and without in any way shifting the onus of proof from the prosecution.

There was no basis upon which to interfere with the four- year, ten month sentence imposed by the trial judge. The accused had a prior related conviction and his moral blameworthiness was high.

APPEAL by accused from the conviction entered on September 24, 2004 and the sentence imposed on November 25, 2004 by Molloy J., [2004] O.J. No. 4746 (S.C.J.).

Cases referred to R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785, [1996] O.J. No. 1840, 107 C.C.C. (3d) 97, 19 M.V.R. (3d) 197 (C.A.) [Leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 465]; R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, [1997] S.C.J. No. 40, 146 D.L.R. (4th) 385, 210 N.R. 321, [1997] 6 W.W.R. 1, 43 C.R.R. (2d) 233, 114 C.C.C. (3d) 385, 6 C.R. (5th) 1, consd Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 258(1)(c) [as am.]

Gregory Lafontaine and Vincenzo Rondinelli, for appellant. James V. Palangio, for respondent.

The judgment of the court was delivered by

Background

1LAFORME J.A.: -- At about 10:34 p.m. on June 20, 2002, near the intersection of Queen's Quay and Jarvis Street, a tragic accident occurred. Mark Simmons and three companions were walking across Queen's Quay to the south side. A tow truck driven by the appellant was travelling east on Queen's Quay when it struck and killed Mr. Simmons.

2The appellant worked for a tow truck company owned by his father, but had finished work at the time of this accident. In the truck with him were three others. They had all just come from a restaurant about five minutes away on Queen's Quay, where Mr. Hall had played pool and consumed chicken wings and beer. [page643]

3The appellant was arrested at the scene and charged with driving while impaired, driving with a blood-alcohol concentration of more than 80 mg of alcohol in 100 ml of blood, dangerous driving causing death and criminal negligence causing death. He was tried by a judge without a jury.

4On September 24, 2004, the appellant was convicted of impaired driving causing death, driving with blood alcohol over 80, and dangerous driving causing death. He was sentenced to a term of imprisonment for a total period of four years and ten months. A driving prohibition for ten years was also imposed.

5The appellant appeals both his convictions and the sentence.

The Issues

The Issues

6The appellant raised numerous grounds of appeal relating to his convictions. On the appeal, however, he abandoned several of them and relied principally on three. In this regard, the appellant submits that the trial judge erred:

(i) In her assessment of the "bolus drinking" evidence;

(ii) In drawing an adverse inference from the appellant's failure to testify to support the conviction for driving with a blood alcohol over 80; and

(iii) In her consideration of the evidence relating to the appellant's vehicle rate of speed.

7The court called upon the respondent to address the first two grounds only, as well as the sentence that was imposed. In our view the trial judge's findings regarding the speed of the appellant's vehicle are reasonable, and supported by the evidence. Her decision on this issue is entitled to appellate deference.

8In addition, the respondent fairly conceded that the conviction for driving with blood alcohol over 80 should be conditionally stayed, and the concurrent sentence imposed on that charge vacated. We agreed, and the judgment and sentence imposed for this offence ought to be varied accordingly.

9I will now address the remaining grounds of appeal in order as well as the appeal against sentence.

Analysis

(i) Did the trial judge err in her assessment of the "bolus drinking" evidence?

Analysis

10The appellant was arrested at the scene of this tragic accident. However, his breathalyzer tests were conducted more than [page644] two hours later. His blood-alcohol level on the first reading was 133. His second reading, 20 minutes later, was 129. The legal limit is 80. The Crown's expert, Dr. Buczek -- and the only expert evidence called at trial -- opined that the appellant's blood-alcohol level at the time of the accident would have been between 129 and 165.

11In R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785, [1996] O.J. No. 1840, 107 C.C.C. (3d) 97 (C.A.), this court held that the Crown was required to prove the lack of bolus drinking, and that there is no onus on an accused person to show that he had engaged in bolus drinking. In the end it is for the Crown to prove the facts that the expert's opinion is based upon, including bolus drinking.

12The appellant argues that there are aspects to the evidence that the trial judge failed to properly assess. They primarily consist of the submission that given the evidence at trial, the Crown failed to prove beyond a reasonable [doubt] that there was no consumption of greasy food by the appellant, accompanied by bolus drinking, which had the effect of delaying the absorption of alcohol into the appellant's blood. In other words, there was reasonable doubt that the appellant's absorption of alcohol at the time of the accident was over the legal limit.

13This is an important submission because, as the appellant says, the trial judge's finding on this issue underpins her findings in respect of all the offences the appellant was convicted of.

14Bolus drinking is generally described as the consumption of large quantities of alcohol immediately before driving: see Grosse, supra, at p. 788 O.R., p. 99 C.C.C. In our case it was defined by Dr. Buczek as "a large consumption of alcoholic beverage over a short period of time where there is no change in blood alcohol concentration". [See Note 1 below] The trial judge relied on the evidence of Dr. Buczek to find the appellant's blood-alcohol content at the time of the accident to be over 80.

15At trial the defence sought to invalidate Dr. Buczek's opinion by demonstrating that the appellant consumed a large quantity of alcohol five minutes before the accident. Thus, at the time of the accident, the alcohol the appellant had consumed five minutes earlier may not yet have been absorbed into his bloodstream. Therefore, although his blood-alcohol exceeded the legal limit later, it may not have been over 80 at the time of the accident.

16The defence relied on the testimony of two of the people who were with the appellant that evening, Jamie Perkins -- who was called as a witness by the Crown, and Jeffrey Portsmith -- a [page645] cousin of the appellant who was called by the defence. The appellant did not testify in his own defence.

17The trial judge held that the defence theory was not supported by the evidence. She was aware of, and recited completely and correctly, the theory that bolus drinking together with eating greasy food would slow down the absorption rate of alcohol such that it could have been below 80 at the time of the accident.

18The trial judge specifically noted that the defence theory of bolus drinking depended on the evidence of Mr. Portsmith that the appellant drank half a glass of beer quickly within ten minutes of the accident. The only one who testified to the bolus drinking was Mr. Portsmith who said that there was half a glass of beer left just before they left the restaurant, which the appellant drank quickly. The trial judge found Mr. Portsmith's credibility to be dubious and that his evidence was unreliable.

19The appellant argues that while the trial judge found Mr. Portsmith's evidence to be unreliable, she did not reject it entirely. Therefore, he submits that this evidence, when considered, and even though of little weight, must raise a reasonable doubt on the issue of bolus drinking. He also submits that even if the evidence of Mr. Portsmith was rejected, the burden remained with the Crown to affirmatively prove the absence of bolus drinking, and it failed to do so. I disagree.

20It is abundantly clear when one reads the reasons of the trial judge in their entirety that she places no weight whatsoever on the testimony of Mr. Portsmith. She found Mr. Portsmith's evidence not only unreliable, but she disbelieved him and found him to be a witness who lied and who was not credible. There can be no doubt that the trial judge rejected his evidence on this issue entirely. Having done so, there was no evidence whatsoever of bolus drinking, nor was there any other evidence to undermine the common-sense inference of drinking at a normal pace, on which the trial judge was therefore entitled to rely.

21The trial judge was fully aware of the Crown's onus of proving the correctness of the underlying assumptions of its expert. This included the requirement that the Crown prove beyond a reasonable doubt that the appellant did not engage in bolus drinking immediately before the accident. She was satisfied beyond a reasonable doubt, based on all of the evidence, that his blood-alcohol level was well in excess of 80 at the time. Her conclusions are wholly supported by the evidence and I would not interfere with her decision. [page646]

(ii) Did the trial judge err in drawing an adverse inference from the appellant's failure to testify?

Adverse Inference from Failure to Testify

22Under this ground of appeal, the appellant submits that the trial judge improperly relied on the appellant's failure to testify as independent piece of evidence to support the conviction of "over 80". He argues that in treating this evidence as she did, the trial judge effectively reversed the onus of proof and undermined the presumption of innocence. The impugned portions of the trial judge's decision are as follows [at paras. 24 and 25]:

The extent of Mr. Hall's drinking in the period immediately before he started driving is peculiarly within his own knowledge. In R. v. Grosse, supra, the Court of Appeal noted:

In view of the circumstantial evidence that tended to demonstrate that the respondent [the accused] had not engaged in bolus drinking and the respondent's unique position to offer an explanation, the trial judge was entitled to draw an adverse inference unfavourable to the respondent from his failure to testify to such an unusual drinking pattern.

Given the evidence before me and the theory of the defence, it is in my view telling that the accused did not testify. This is an incriminating set of facts. An explanation from the accused is called for, and would be the only way of rebutting the case presented. I am entitled to draw an adverse inference from the accused's failure to testify, and I do so. I also note that the accused lied to the police at the scene, stating that he had nothing at all to drink. This may be regarded as consciousness of guilt, which again is unexplained by the accused.

23In Grosse, as in the case before us, because tests for blood-alcohol were conducted more than two hours after the accident, the Crown was not entitled to rely on the presumption (i.e., s. 258(1)(c) of the Criminal Code) that the appellant's blood-alcohol level at the time of the accident was the same as at the time of the tests. Thus, the Crown relied upon expert evidence.

24This court concluded in Grosse that the trial judge could not rely on the expert's evidence because it was based on an assumption of no bolus drinking. Nevertheless, this court upheld the conviction primarily because there was enough circumstantial evidence to support the trial judge's decision, including "applying common sense as to how ordinarily people behave" (p. 792 O.R., p. 103 C.C.C.). This court then went on to articulate the paragraph relied upon and quoted by the trial judge set out above.

25Grosse has since been overtaken in some respects by R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, [1997] S.C.J. No. 40, 114 C.C.C. (3d) 385, which Sopinka J. writing for the majority, at para. 68, described as an appeal concerning the evidentiary significance of the failure of an accused to testify at trial. At para. 89 he sets out [page647] the basic principle that, "the silence of an accused person at trial is neither inculpatory nor exculpatory evidence". He then goes on to express some basic rules regarding the appropriateness of a trial judge adverting to the silence of an accused person:

(1) Where the trial judge is satisfied that the Crown has proven its case beyond a reasonable doubt, the silence of an accused may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt (para. 78).

(2) Where the level of the Crown's proof falls short of proof beyond a reasonable doubt, the silence of an accused may not be referred to as bridging any part of that burden (para. 81).

(3) Because the term "inference" can be taken to indicate that the trier of fact used silence to help establish the case for guilt beyond a reasonable doubt, courts should generally avoid using the term in discussing the silence of an accused (para. 90).

26He notes that where silence is mentioned by the trial judge as confirmatory of guilt given the totality of the evidence, but not as a "make-weight", there is no reversible error. That, in my view, is the case before us.

27It would, since Noble, have been preferable had the trial judge in the case before us not used the term "adverse inference", even though she fairly relied on this court's comments in Grosse to do so. However, as I have illustrated, those comments must be considered and assessed in light of Sopinka J.'s pronouncements in Noble.

28In considering the trial judge's reasons as a whole, it is clear to me that she was always aware of the burden of proof and where it lay. In sum, there was evidence, which she accepted, to prove the accuracy of Dr. Buczek's calculation of the appellant's blood alcohol concentration at the time of driving. That conclusion was reached without any reliance on an adverse inference, and without in any way shifting the onus of proof from the prosecution. If there was any error by the trial judge, it did not result in any substantial wrong or miscarriage of justice.

(iii) The sentence appeal

The Sentence Appeal

29The appellant essentially limits his argument on the sentence appeal to that of the sentence being excessive coupled with the submission that the trial judge identified the wrong range for this type of offence. It follows therefore that appellate interference may only be justified if the sentence is demonstrably unfit; [page648] that is, the sentence imposed is "clearly unreasonable" or a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes".

30In my view, there is no basis upon which to interfere with the four years and ten-month sentence imposed by the trial judge. She applied the proper principles, considered all submissions and authorities, and evaluated the mitigating and aggravating factors -- including the appellant's prior related conviction. She reviewed the appellant's pre-sentence report, and recognized that the appellant's moral blameworthiness was high.

31Even if the trial judge incorrectly considered the range of sentence for similar offences, she nevertheless rendered a fit and proper sentence in this case. The sentence was warranted for this offender and these offences.

32While I would grant leave to appeal the four years and ten-month total sentence the appellant received, I would dismiss the appeal, except as noted below.

Disposition

Disposition

33The appeal as to conviction should be allowed but only to the extent of quashing the conviction on the charge of over 80 and substituting a conditional stay. In addition, I would vacate the sentence of two years less a day imposed in respect of that offence that was to run concurrent. I would dismiss the balance of the appeal against convictions. Finally, I would allow leave to appeal the sentence, but I would dismiss the appeal, except in relation to the offence of over 80.