Court File and Parties
Court File No.: Halton 10-3328 Date: 2013-02-06 Ontario Court of Justice
Between: Her Majesty the Queen — and — Casimir Derkowski
Before: Justice F.L. Forsyth
Heard on: December 19, 2011, August 8, 2012 and October 4, 2012
Reasons for Judgment released: February 6, 2013
Counsel:
- Michael Malleson and Agata Tasson for the Crown
- Peter Thorning for the accused Casimir Derkowski
Judgment
Summary of Evidence
1I summarized the evidence of the case for the Crown in my written reasons on my ruling pursuant to Mr. Derkowski's s. 8, 9, and 24(2) Charter application, which was conducted as a blended proceeding with the trial on consent of both Crown and defence counsel. Those reasons were distributed on August 8, 2012. On consent of both counsel, all of the evidence from that Charter application, which was summarized in my ruling, was applied to the body of evidence of the trial proper, which then continued on August 8, 2012, with Mr. Thorning calling Mr. Derkowski as his only witness in the case for the defence. The one exception to the application of the Charter ruling evidence to the trial proper was in the cross-examination of P.C. Tokat wherein he testified that when speaking with Mr. Derkowski at the scene, Mr. Derkowski had provided him with an explanation for why he was unable to stop at the stop sign at the intersection, which had been the focal point of this particular trial. He made use of that utterance in the formation of his RPG for his arrest of the accused. I will carefully bear that in mind when I am considering my judgment on the merits of this case.
I dismissed the Charter applications and provided reasons for doing so in the August 8, 2012, set of Reasons to which I have already referred. I will now set out the factual summary of that Charter ruling which will constitute my summary of the evidence in the case for the Crown on the trial proper.
2Mr. Derkowski was charged with one count pursuant to s. 253(1)(a) and one count pursuant to s. 253(1)(b) of the Criminal Code of Canada. The Crown proceeded summarily and Mr. Derkowski, having set a date for trial, was represented by Mr. Thorning. At the outset of the proceeding, Mr. Thorning proposed that the matter be dealt with as a blended Charter application and trial of the merits. Mr. Malleson agreed. Mr. Thorning had filed a Notice of Application alleging that Mr. Derkowski's s. 8 and 9 rights had been violated by the arresting officer in this case. As a result, Mr. Thorning seeks an order from this court pursuant to s. 24(2) of the Charter excluding the evidence of the results of the Intoxilyzer breath tests which were obtained from Mr. Derkowski after his arrest on these charges.
3On the consent of both counsel the Certificate of Analysis of the breath samples authored by the qualified technician, P.C. Caldwell, was introduced as Exhibit Number 1. The truncated breath sample readings of Mr. Derkowski were 110 and 100 mg. of alcohol in 100 ml. of blood respectively.
4Also on consent an affidavit and report of one Inger Bugyra a toxicologist employed by the Centre of Forensic Sciences (CFS) was introduced as Exhibit Number 2.
5The first witness called by the Crown was P.C. Dikran Tokat who testified in chief that he had been employed by the Halton Regional Police Service (HRPS) since 2007. His notes were qualified and he was permitted to refresh his memory from them when necessary. He testified that he was working on October 17, 2010 in the early morning hours and that he was dispatched at 2:38 a.m. to back up P.C. Steinmark who had requested an approved screening device (ASD) and was apparently at the location of Martha Street and James Street in the City of Burlington. P.C. Tokat then drove towards that location, taking the route southbound on Brant Street from where he had been located and making a left turn from Brant to proceed eastbound on James Street. He said that he was travelling at approximately 40 or 50 kilometres per hour and as he approached the intersection of James and John Streets he observed with his peripheral vision to his left, headlights from what he concluded was a motor vehicle and then suddenly the vehicle appeared right in front of him. He slammed on his brakes and they locked. As a result he collided with the rear right side portion of the motor vehicle, striking it with the front right bumper of his police cruiser. Before the collision he had attempted to swerve to the left to avoid the collision but was unable to totally avoid it. Therefore he did collide with the vehicle in that right rear portion of its body.
6He said that this vehicle had been travelling southbound on John Street and did not stop at the stop sign for southbound traffic on John Street. The Crown asked him if he had printed out a map of the area from the Google search engine and he said that he had done so. He produced it and, on consent, it was entered as Exhibit Number 3. This exhibit consists of two pages. The first page is a Google map of the street areas and page 2 is an overhead photograph of the area.
7The officer then referred to page 1 to assist him in his testimony and illustrated that he had been driving eastbound on James Street, approaching John Street. He said that on the northwest corner of the intersection of James and John a building is located. He said that that particular building blocked his vision in the sense of preventing him from being able to see an actual motor vehicle as it proceeded southbound on John Street towards the intersection. Therefore, he was only able to see the headlights out of the corner of his eye, approaching from his left and the next thing he knew, the motor vehicle was in front of him. He identified the vehicle as being an Audi motor vehicle and the vehicle of the accused, which is not in issue.
8He was asked which of the two vehicles had the right of way at that intersection and he testified that he did because there was no stop sign for eastbound traffic on James at John. Neither were there any controlled traffic lights at this intersection.
9He said that there is a stop sign for southbound traffic on John Street at James. He was asked if he had ever seen the accused's motor vehicle making any attempt to slow down. He said that he did not observe the accused's vehicle attempt to slow or swerve out of the way as it drove through the intersection in order to try to avoid the collision with his cruiser. He estimated that the accused's vehicle was travelling at approximately 15 to 20 kilometres per hour through the intersection.
10The officer testified that after the collision the accused's motor vehicle proceeded southbound on John and he therefore activated his emergency equipment and stopped the accused's vehicle on John Street, just north of Pine Street. After doing so, he approached the driver's side door of the vehicle and noted that Mr. Derkowski was the sole occupant of the vehicle, seated in the driver's seat. He asked for identification from Mr. Derkowski and he identified himself with a valid photograph style Ontario driver's licence. When he was speaking with the accused at his driver's door he immediately detected an odour of alcohol emanating from the breath of Mr. Derkowski who also told him that he had consumed one drink at Joe Dog's, which the court knows is a licensed establishment on Brant Street in Burlington. The officer also testified that Mr. Derkowski advised him that he was not from Burlington and that he had not seen the stop sign.
11P.C. Tokat then said that he confirmed with Mr. Derkowski that he had no injuries as a result of the collision and at that time he also observed his eyes to be red and watery rimmed. The Crown asked the officer if, in his opinion, the magnitude of the accident had been such that Mr. Derkowski should have been shaken up by the accident. The officer said that it was a minor collision and although he could not be 100% certain about whether Mr. Derkowski would have been shaken up by the accident, he described the impact as being a low impact at fairly low speeds.
12The Crown asked the officer to testify about the visibility of the stop sign for southbound drivers on John Street from the officer's experience. P.C. Tokat said that he was very familiar with that intersection and the southbound direction of John Street towards James. He said that the stop sign would be visible just before the actual stop line going southbound on John and that the sign would be located to the right of the driver as the driver approached from the north. He said there is no obstruction to the view of a southbound driver on John Street with respect to whether or not that driver would be able to see the stop sign. The weather conditions at the time of this incident, he had noted, were approximately 14 degrees Celsius and the road conditions were dry. He also did not recall any rain, snow or fog.
13Asked to describe the degree of strength of the odour of alcohol on the accused's breath, he said that it was medium, not overly strong nor very, very faint.
14Asked if he had believed the accused's statement to him that he had one drink at Joe Dog's, he said, "Not particularly, no." He said that based on his previous experience as a police officer one drink would not put a person into a state where it would impair his or her judgment to the extent of not being able to obey a stop sign and neither should one drink produce the symptom of red and watery rimmed eyes. He also said that in his experience it was not uncommon for a person stopped by the police to lay claim to having had only one drink of an alcoholic beverage, thus indicating that he had some scepticism in general about such an answer.
15He was asked what decision he made next and he said that, "Considering the totality of the circumstances at 2:43 a.m. I formed the opinion that I had reasonable and probable grounds to believe that Mr. Derkowski had committed a criminal offence of operating a motor vehicle while being impaired by alcohol within – within the previous three hours."
16Given that there was no Charter application with respect to s. 10(b), Mr. Malleson led the officer through his evidence of the provision of the rights to counsel to Mr. Derkowski, the usual caution, and the wording of the breath demand that he had administered to the accused pursuant to s. 254(3) of the Criminal Code. He said that Mr. Derkowski seemed to understand everything that he had read to him and after the demand he called for a backup cruiser to attend the scene in order that he could remove Mr. Derkowski from the rear of his own cruiser, in which he had placed him after the arrest, because his cruiser would have to be towed to the station since it had been involved in a motor vehicle collision. Although he did not say so, I got the impression that this was a matter of policy.
17Another officer arrived and he said that at 3:07 a.m., he and the other officer were on route to the Burlington police station with Mr. Derkowski, arriving at 3:19 a.m. At 3:26 a.m., he called Mr. Derkowski's lawyer of choice, Mr. Peter Thorning, who represents him on this application and trial. Mr. Thorning did not return the call and by 3:45 a.m., P.C. Tokat decided to call duty counsel on behalf of the accused, who agreed to consult with him. That consultation was completed at 4:20 a.m. The accused never expressed any dissatisfaction with the advice that he received from duty counsel and as I earlier stated, there is no issue with respect to s. 10(b) of the Charter on this application.
18At 4:50 a.m., he turned Mr. Derkowski over to the qualified Intoxilyzer technician, P.C. Caldwell.
19Mr. Malleson then returned to the subject of the stop sign and its visibility for southbound drivers on John approaching the intersection with James. He asked the officer if there was anything that would cause difficulty to a southbound driver to be able to see that stop sign. The officer said that as far as he was aware there was no difficulty that would present itself because the stop sign is visible to southbound drivers. He was asked if he had been able to learn where Mr. Derkowski lived and he said from his driver's licence it would appear that it would be Mississauga. He then identified Mr. Derkowski in the courtroom and there was no issue taken by Mr. Thorning with his identification.
20The Crown then asked the officer to tell the court whether he had a chance to observe the accused's eyes from some vantage point in the courthouse and, in particular, from his vantage point in the witness stand looking at the accused, some 20 feet or so away from him. Mr. Thorning objected to the line of questioning and stated that it was unfair and that his client was not a statue to be observed by the compulsion of the state to produce evidence against him. I allowed the Crown to ask the question and the officer to answer it. P.C. Tokat said that from where he was seated in the witness stand, about 20 feet distant from the accused, Mr. Derkowski's eyes appeared not to be red and watery as he had observed them to be on the night in question. I will simply say that I will not place much, if any, weight upon that piece of testimony since the conditions of observation were totally different between a dark evening right up close to the accused's face at the window of his car, by comparison with a fluorescently illuminated courtroom at a distance of about 20 feet.
21In cross-examination by Mr. Thorning the officer agreed that he did not have any notation as to whether or not any of the street lights had been operational around that intersection at the time in question in the early morning hours of October 17th. He said that he couldn't honestly recall, either, whether or not they were activated at that time.
22The officer was asked to draw a map of sorts of the area of the intersection and he drew two diagrams and they were both introduced, on consent, as Exhibits Number 3A and 3B. He was then asked to circle the building on the northwest corner of James and John that he had earlier described as partially obscuring his own vision as he travelled eastbound on James towards John, of southbound traffic approaching the intersection on John. He then agreed with Mr. Thorning's suggestion that a driver proceeding southbound on John Street would also have his vision of eastbound traffic coming along James towards John obscured by the same building.
23Mr. Thorning then suggested to him that he didn't really know whether or not the accused had stopped his motor vehicle at the required stop sign for southbound traffic on John Street. The officer agreed by answering, "No. I didn't see but judging by the speed, he's – how could your client make a complete stop, ensure that it's safe to go when I'm travelling with no control, no stop sign, no traffic light to – to control east and westbound traffic and then proceed safely?" The officer then continued with his evidence and said that when he is on general patrol and driving southbound on John approaching that particular stop sign, he comes to a complete stop and then proceeds past the sign and then stops again to ensure that east and westbound traffic on James is clear for him to proceed safely through the intersection.
24He said that the speed limit on James is 50 km/hr and that he, himself, had been travelling at 40 or 50 km/hr. He denied Mr. Thorning's suggestion that he would have perhaps been travelling a little faster than the speed limit because of the fact that he was trying to deliver an ASD device to the other officer, which would be a matter of some urgency according to Mr. Thorning, and not particularly disagreed with by the officer. The officer denied that he would have exceeded 50 km/hr in the short distance that he would have between Brant Street and John Street on James going eastbound. He also said that he realized that his fellow officer was only a couple of blocks to the east of that intersection and even driving at the speed limit, he knew he could get the ASD to him in about a minute or so from the time of the dispatch. Therefore, he said there was no need for him to rush. When asked by Mr. Thorning, he said that the distance between Brant and John on James would only be about 30 or 40 metres.
25The officer agreed that the accused's vehicle appeared to have been travelling south on John Street in the intersection before the collision at a rate of speed less than the speed limit. Mr. Thorning then suggested that if that was the case, the likelihood would be that he had slowed down before entering the intersection. However, P.C. Tokat said that he had no way of knowing whether or not the accused had slowed down before going through the intersection because he had not observed his vehicle travelling up to the stop sign.
26In re-examination, the officer told the Crown that the street lights would not have to be activated in order for a southbound motorist on John Street to be able to see the stop sign because, presumably, that motorist would have his or her headlights activated and indeed, in this case, the officer had testified that he saw the headlights of what turned out to be the accused's vehicle as it approached southbound towards the stop sign on John. He said that, of course, the stop signs are of a reflective material, intended to be illuminated by headlights of vehicles.
27The next witness called by the Crown was P.C. Matthew Caldwell. He was the qualified Intoxilyzer technician on duty who dealt with Mr. Derkowski on the night in question. He was permitted by the court to refresh his memory from his notes and also from his Alcohol Influence Report. He was shown by the Crown Exhibit Number 1 and he identified it as a true copy of his certificate of a qualified technician with respect to Mr. Derkowski's breath tests. He said that he had reviewed it earlier in the day before testifying and recited the readings that had been obtained on the tests for the court. The first test obtained a BAC level of 114 milligrams of alcohol in 100 millilitres of blood, while the second test obtained a reading of 107 milligrams of alcohol in 100 millilitres of blood.
28He was asked if he had made any observations of Mr. Derkowski's eyes at the time that he dealt with him and he said that he had done so and that his eyes were bloodshot and the pupils were dilated. He was asked then by the Crown if he had had the opportunity of examining the accused's eyes on the day when he was testifying and he said that he had been able to get up to within three feet of the accused's face. P.C. Caldwell said that the accused's eyes did not appear to be bloodshot on December 19, 2011 in court and his pupils did not appear to be dilated.
29He also said that on the night in question there was an odour of an alcoholic beverage coming from the breath of the accused and his face was flushed. He was then asked by the Crown if he had an opportunity to observe the colour of the accused's face in court and he said he had and that he would not describe it as being flushed as it had been on December 19, 2011.
30In cross-examination by Mr. Thorning, P.C. Caldwell quickly agreed that, of course, he could not determine how much alcohol Mr. Derkowski had consumed simply from the odour on his breath or the flushed appearance of his face. As a matter of fact, he agreed that just because the face was flushed, he couldn't even conclude that that meant that alcohol had been consumed.
31He then agreed with Mr. Thorning that the only box he had ticked, with respect to observation of the accused's eyes at the time, was bloodshot. He did not tick the box for watery or red-rimmed. However, he had indicated on his form that the pupils were dilated. He agreed that he had no idea whether or not the accused had been wearing contact lenses at the time. Of course, the court has no idea either because there was no evidence with respect to the accused wearing contact lenses or not on this trial.
32He agreed with Mr. Thorning's suggestion that contact lenses could possibly cause eyes to become red if there was an irritation from them and that allergies sometimes can make a person's eyes appear to be red, as a possibility. Finally, he agreed with the general suggestion by Mr. Thorning that irritations of any kind could sometimes make eyes red. Once again, I point out that while that series of questions and answers might be somewhat interesting, in the absence of any evidence in this case that Mr. Derkowski's eyes suffered from irritations or allergies, it is not particularly helpful in my view. P.C. Caldwell agreed that Mr. Derkowski was cooperative and polite with him.
33When the cross-examination was concluded, Mr. Malleson had no re-examination for P.C. Caldwell. Mr. Malleson then indicated that he was concluding the case for the Crown on the merits of the trial on each of the two charges and that he had no further evidence to call in response to the Charter application.
34Mr. Thorning did call Mr. Derkowski on the Charter application and other than his material in support of this motion contained in his factum, Mr. Thorning did not call any additional viva voce evidence on the Charter motion.
35On August 8, 2012, Mr. Thorning elected to call a case for the defence and called the accused Casimir Derkowski as the only witness for the defence.
36The accused Casimir Derkowski testified in chief that on October 17, 2010, he had worked all day at his construction job and then attended a birthday party for his friend TJ at an establishment in Burlington on Brant Street known as Joe Dog's. He said that because he knew he had to go to work the next day he had no intention of drinking a great deal or of being very late getting home. Therefore, he volunteered himself as a designated driver and he drove some of the party-goers to the bar in his car.
37Upon arrival at the bar at approximately 11 p.m., or somewhere between 11 p.m. and 12 midnight, the accused said that he ordered two rum and coke drinks because it is a birthday custom to have one drink in each hand. He said that the two drinks contained two ounces of rum in total between the two of them and it was his intention to sip at these drinks for the entire period of time that he stayed at the bar. However, when he decided to leave just before last call, he also ordered two additional shots of tequila which his birthday friend TJ had purchased for him. He then consumed those shots as well. Therefore, he was testifying that he had a total of four ounces of liquor during the course of his evening. He said that he felt completely normal when he drove away from the bar and he pointed out that he has been drunk in the past and therefore he knows what he feels like when he is drunk. He also added that he is a health fanatic and therefore he does not tend to drink a lot of alcoholic beverages in any event. He said that he left the bar immediately after finishing the two shots of tequila.
38Mr. Derkowski then testified that he drove over to John Street and then drove southbound on John towards the Lakeshore, stopping at two separate stop signs at two separate intersections. After stopping at the second stop sign and proceeding into the intersection, he said that his car was struck by another vehicle that had no lights. He described it as a "cop car". By his testimony that this vehicle had no lights, I believe that he meant that since it turned out to be P.C. Tokat in a police vehicle that had struck him, he was simply telling the court that the police vehicle did not have any of its roof lights activated.
39He estimated that he had probably left Joe Dog's between 2:00 a.m. and 2:05 a.m. and it was only about two minutes later when the collision occurred on John Street.
40He was shown Exhibit 4A on this trial which depicts the location of Joe Dog's bar and he said it also shows his driving path down John Street southbound, which he drew on the Exhibit.
41He was then shown Exhibit 4B by Mr. Thorning which depicts John Street southbound and the accused pointed out the stop sign that is visible in 4B at which he said he had stopped in his progress down John Street.
42He was then shown Exhibit 4C which he identified as the James Street intersection with John and the stop sign for southbound traffic is clearly visible on the lamp pole in the Exhibit. Mr. Derkowski testified that he stopped also at that stop sign and he also mentioned that there is a building on the northwest corner of that intersection, which for southbound traffic would be on the right of the drivers. He testified that that building impedes the visibility of southbound drivers for any approaching eastbound traffic as they are stopped at the actual stop sign or stop line on John Street at the John and James intersection. Therefore he said that he edged his vehicle forward after stopping to try to see if there was any eastbound James traffic approaching and also to look for westbound traffic along James.
43He estimated that he drove into the intersection at approximately 30 kilometres per hour after he decided that there was no approaching traffic and then was struck by P.C. Tokat's vehicle in the middle of the intersection. He said that he had not been able to observe any oncoming eastbound James Street traffic before the collision and he simply heard his tires squeal as his car was struck on the right rear area and his vehicle was pushed across the road surface by the police vehicle. In his opinion, P.C. Tokat must have been travelling quite quickly because he said that his own vehicle was pushed entirely to the other side of the intersection.
44Mr. Thorning then showed the accused Exhibit 4D and the accused identified it as simply depicting the location where he had pulled his own vehicle over to the west side of John Street, south of the James Street intersection, after the collision in order to wait for P.C. Tokat.
45He was then shown six Exhibits, which were numbered 5A, B, C, D, E, and F, and entered on consent by the defence. These Exhibits are photographs of his own vehicle and each one shows a little bit different view of the damage that his vehicle sustained to the right rear and right rear bumper areas.
46In cross-examination by Ms. Tasson, who had now assumed carriage of this case for the Crown, he said that he was intending to take Lakeshore Road after leaving Joe Dog's because he was familiar with it. He explained that his grandmother lived at Walkers Line and Lakeshore and he also knew that Walkers Line would take him eventually north to the Queen Elizabeth Highway. He said that at that time he did not realize that Brant Street also led to the QEW.
47He also agreed with the Crown that he had stayed at the pub later than he had originally intended when he arrived. He maintained that despite his heavy work day on construction and the workout at the gym after that, he did not feel particularly tired during the evening because he was used to that type of day as a young, healthy, strapping fellow. When he was asked what he had meant by telling P.C. Tokat that he had "just had one" when the officer asked him if he had had a drink that evening, he explained that he meant by that statement that he had just recently had the tequila shots.
48At the conclusion of this cross-examination of the accused, Mr. Thorning closed the case for the defence and Ms. Tasson indicated that the Crown was not calling reply evidence.
49The court received oral submissions from both the defence and the Crown on August 8, 2012. However, during the course of these submissions, both counsel agreed to make additional written submissions with respect to one or two particular points which I will describe later. Therefore, I will initially summarize their oral submissions and then separately the written submissions which were received by the court at a later date.
Position of the Defence
Section 253(1)(a)
50Mr. Thorning submitted that the court should find that the cause of the collision between the accused's vehicle and P.C. Tokat's unmarked police car was, at the worst, neutral with respect to supporting a suggestion of a symptom of impairment by alcohol on the part of the accused while operating his vehicle. He drew the court's attention to the undisputed evidence that the building on the northwest corner of John and James does indeed to some extent at least impede the view or opportunity to observe eastbound traffic on James Street towards John by a southbound John Street driver.
51In addition, he drew the court's attention to P.C. Tokat's own evidence wherein he conceded in cross-examination that that particular building partially obscured his own vision as he was travelling eastbound on James towards John of southbound traffic that might be approaching the intersection at James and John. He had also agreed with Mr. Thorning that a driver proceeding southbound on John Street would have his vision of eastbound traffic coming along James towards John obscured to some extent by the same building. Mr. Thorning emphasized that evidence in his argument on this count.
52With respect to any other physical symptoms that might be relied upon by the Crown in an attempt to convince the court beyond a reasonable doubt that Mr. Derkowski's ability to operate his motor vehicle was impaired by alcohol on this occasion, Mr. Thorning referred the court to what he describes as woefully insufficient physical signs of impairment. By that he explained that the combined evidence of P.C. Tokat and P.C. Caldwell leaves the court with only the odour of alcohol on the breath of the accused, a somewhat flushed face, and bloodshot eyes, which was a description common to both officers. However, whereas P.C. Tokat had described the accused's eyes after the accident as being red and watery rimmed, P.C. Caldwell had described him in his alcohol influence report as bloodshot and with dilated pupils. Mr. Thorning also argued that in cross-examination P.C. Caldwell admitted that he had only ticked on his AIR bloodshot eyes, and he did not tick the box for watery or red-rimmed.
53In any event, Mr. Thorning strongly urges the court to find that if the court accepts the neutrality status of the collision at the very worst for the accused and is then left with such minimal physical symptoms of impairment by alcohol, there should be no difficulty in concluding that the evidence in this case cannot even meet the low threshold standard set by the Ontario Court of Appeal in R. v. Stellato, 1993 CanLII 3375 (ON CA), [1993] 78 C.C.C. (3d) 380 for proof beyond a reasonable doubt of the impairment by alcohol of the accused's ability to operate his motor vehicle and therefore that this count should be dismissed.
Section 253(1)(b)
54In his oral submission on August 8, 2012, Mr. Thorning argued that the court cannot consider, for the truth of its contents against the accused, any statement that he made to P.C. Tokat which enabled P.C. Tokat to form his reasonable and probable grounds to arrest him. Specifically, he argues that the court cannot consider his answer to P.C. Tokat's question of whether he had been drinking of: "I just had one".
55Next, Mr. Thorning reminds the court that the Intoxilyzer tests which were taken from Mr. Derkowski were outside the two hour period following the last known time of his driving. Therefore, the Crown cannot rely upon the s. 258(1)(c) presumption. That is why the Crown filed, on consent, the Exhibit Number 2 report from the CFS toxicologist Inger Bugyra. Therefore, argues Mr. Thorning, of course the Crown must prove beyond a reasonable doubt that the accused's blood alcohol concentration at the time of the motor vehicle accident between his vehicle and P.C. Tokat's vehicle was in excess of the legal limit of 80 milligrams of alcohol in 100 millilitres of blood.
56Mr. Thorning then made submissions with respect to the Exhibit Number 2 CFS expert report. He refers the court to the first paragraph wherein the toxicologist assumed that the collision had occurred at 2:40 a.m. precisely. However, Mr. Thorning reminds the court that the accused testified that it had occurred at approximately 2:05 a.m. and that he gave very detailed evidence as factual underpinning for his time estimate. Mr. Thorning argues that P.C. Tokat's evidence by comparison was very general and not very precise about the actual time of the accident. Mr. Thorning elaborated upon this particular issue in his subsequent written submissions and I will address this issue again when discussing those written submissions.
Mr. Thorning also referred the court to the portion of the Exhibit Number 2 toxicologist report wherein the term 'large quantities' was used to describe the assumption of alcohol consumed by Mr. Derkowski with no quantification of what that term means.
Position of the Crown
Section 253(1)(a)
57Ms. Tasson submitted that the accused admitted that he was tired by the time he left the bar at 2 a.m.
58On the question of just how precise the toxicologist needs to be with respect to drawing assumptions that there was no consumption of 'large quantities' of alcohol which in legal terms is sometimes referred to as bolus drinking by the accused just before being observed by the arresting officer, Ms. Tasson refers the court to the decision of R. v. Paszczenko which also includes the decision of R. v. Lima, 2010 ONCA 615 (CanLII), [2010] O.J. No. 3974. These cases were decisions of the Ontario Court of Appeal on September 23, 2010. Portions of this judgment that relate to the decision of R. v. Lima are actually the more relevant portions with respect to Ms. Tasson's submissions on the issue of the assumptions that were employed by the CFS toxicologist who prepared the Exhibit Number 2 report for this case. The Crown actually made most of her substantive arguments on this issue in her subsequent written submissions and I will, therefore, defer my summary of the Crown's position on this point until I summarize those written submissions.
59With respect to the time of the collision and the time that was relied upon by the toxicologist in her report, the Crown submits that the accused loses the contest with P.C. Tokat on this issue because there is no cross-examination of the officer by Mr. Thorning with respect to his evidence of his dispatch time of 2:28 a.m. or his arrest time which he stated was 2:43 a.m. Again, this issue is elaborated upon in the Crown's subsequent written submissions and I will deal with it in more detail when I summarize them.
60In general with respect to the issue of whether or not large quantities of alcohol were consumed by the accused immediately before entering his vehicle, while the Crown does refer the court to the case of R. v. Lima supra, Ms. Tasson also orally submitted on August 8 that the court should conclude from the accused's own evidence that he testified that he maintained his habit of not drinking heavily if intending to drive after drinking. The Crown submits that that was his own testimony. Therefore, the Crown submits that the testimony of the accused himself should detract from any argument that the court should infer that he may have engaged in bolus drinking before entering his vehicle.
61Finally, the Crown on August 8 submitted that the defence is required to demonstrated that the blood alcohol concentration of Mr. Derkowski was lower than the legal limit of 80 milligrams of alcohol in 100 millilitres of blood at the time of the collision and not simply establish that the opinion of the toxicologist in the Exhibit Number 2 report may be unreliable. However, I will just add at this point that Mr. Thorning argues that s. 258(1)(c)(d.1) of the Criminal Code only applies to cases where the Crown is entitled to avail themself of the presumption.
62Returning to the Crown's oral submissions with respect to the s. 253(1)(a) count, Ms. Tasson agreed that the circumstances surrounding the collision between the accused's vehicle and P.C. Tokat's vehicle should be considered to be an important factor in the s. 253(1)(a) analysis by the court. In furtherance of that submission, the Crown refers the court to Exhibit 4C and argues that it shows that the visibility is "pretty good" of traffic that would be approaching from the west driving eastbound on James towards John even with the building that indisputably does sit on the northwest corner as described by both the accused and P.C. Tokat. The Crown submits that the accused testified that he looked both ways and yet still was unable to see the officer's headlights approaching even after he crept forward from the stop line. The Crown submits that this failure on his part to be able to observe the approaching vehicle of P.C. Tokat must have been due to his impairment by alcohol.
63Finally, the Crown on August 8 referred the court to the decision of R. v. Phillips, 1988 CanLII 198 (ON CA), [1988] 42 C.C.C. (3d) 150. The Crown argues that that decision stands for the proposition that a toxicological opinion that any person's ability to operate a motor vehicle will be impaired by a certain level of blood alcohol concentration is capable of being relied upon by the Crown as proof beyond a reasonable doubt of any particular individual's ability to operate a motor vehicle. I will refer to the opinion of the toxicologist with respect to Mr. Derkowski's report in my analysis of the written submissions of the Crown.
64It was on August 8 at this point after oral submissions were completed that Mr. Thorning asked the court for the opportunity to provide written submissions on the appropriate use to be made of P.C. Tokat's evidence of the accused's utterances to him in assessing the accused's credibility in general and on the accused's evidence that he said he had just one drink. He also asked to be able to include submissions on the R. v. Phillips supra issue with respect to the opinion of the toxicologist provided in Exhibit Number 2. The Crown consented to that request and expressed the willingness to respond with written submissions to Mr. Thorning and on consent of both parties, the court selected October 4, 2012 as a remand date to provide for the opportunity of any supplementary oral submissions that either counsel might wish to make to the court after they provided each other with their written submissions. On October 4, neither counsel wished to make any supplementary oral submissions.
The Defence Written Submissions
65In his written submissions, Mr. Thorning argued three issues:
- the time of the accident;
- what use could be made of the roadside statements
- whether R. v. Carter and its progeny are applicable.
Time of the Accident
66Mr. Thorning submits that there is no question that the Crown must prove all of the essential facts upon which the expert relies for her report. In support of that proposition, Mr. Thorning referred the court to the decision of the Ontario Court of Appeal, previously cited, in R. v. Paszczenko supra, at paragraph 21:
There can be no dispute that the onus is on the Crown to prove the facts underlying the expert's report, including the assumptions upon which the expert relies. As Sopinka J. noted in R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 898: "before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist." See also R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785 at p. 790 (C.A.), leave to appeal refused, [1996] S.C.C.A. No. 465. As noted above, however, the issue here is not whether the Crown must prove the assumptions, but how it is required to do so.
67Mr. Thorning submits that the expert's opinion is based in part in this case on the first numbered paragraph in her report that includes the assumption that Mr. Derkowski was "involved in an incident at approximately 2:40 a.m.". He therefore submits that the Crown bears the onus of proving that the accident occurred at "approximately 2:40 a.m.". He refers the court to the Canadian Oxford Dictionary definition of "approximate" which is: 1) fairly correct or accurate; near to the actual (the approximate time of arrival: an approximate guess).
68Mr. Thorning submits that that definition suggests a fairly exacting standard and that the Crown's evidence led through P.C. Tokat did not meet the required standard because at no point did P.C. Tokat testify that the accident took place at 2:40 a.m. In support of that proposition Mr. Thorning refers the court to the evidence in chief of P.C. Tokat at page 3, line 15, of the December 19, 2011, transcript. The officer testified that he was dispatched at 2:38 a.m. to back up P.C. Steinmark who had requested an approved screening device be brought to the corner of Martha Street and James Street in Burlington. He said that while he was en route to that location he proceeded southbound on Brant and made a left turn to proceed eastbound on James. Mr. Thorning argues that the officer did not indicate his location at the time when he was dispatched, and so therefore the court cannot judge or assess his distance that he had to travel to the accident scene, nor estimate the likely time of the accident from this evidence alone.
69Mr. Thorning then refers the court to page 9, line 23, of the same transcript and the evidence in chief of P.C. Tokat wherein he had described his movements and activities after the accident occurred. He had described for the court five separate things that he did, culminating in the conduct of the "impaired investigation" after approaching the driver's side door and talking with Mr. Derkowski. At that point, the officer had testified that he placed Mr. Derkowski under arrest at 2:43 a.m. for impaired driving.
70Mr. Thorning submits that from that evidence, the court could not "fairly correctly" or "accurately" determine that the accident had occurred at 2:40 a.m. Mr. Thorning submits that it could be said that the officer could not possibly have completed all of the tasks that he testified that he did and actually arrest Mr. Derkowski at 2:43 a.m. if indeed the motor vehicle accident had occurred at 2:40 a.m. only three minutes earlier.
71For these reasons, Mr. Thorning commends to the court the evidence of the accused that the accident had occurred between 2:00 a.m. and 2:05 a.m. However, even if the court should reject Mr. Derkowski's evidence, Mr. Thorning submits that the court should conclude that the Crown did not call sufficient evidence to demonstrate that the accident did occur at 2:40 a.m. Although Mr. Thorning did not state in his paragraph 13 submission to which I have just referred that the Crown bears the onus of proving that the accident occurred at "approximately 2:40 a.m." as opposed to precisely 2:40 a.m., he did so state in paragraph four of his written submissions.
The Roadside Statements by the Accused to P.C. Tokat
72At paragraph 14 of his written submissions, Mr. Thorning submits that since Mr. Derkowski was compelled to participate in the roadside investigation by P.C. Tokat, his answers to the officer's questions cannot be used to incriminate him because they are only admissible to assist the officer in forming his reasonable and probable grounds for the arrest. He refers the court to the Supreme Court Canada decision of R. v. Orbanski; R. v. Elias [2005] S.C.C. 37 as the authority for his argument on this point.
The Effect of R. v. Carter
73At paragraph 15 of his written submissions, Mr. Thorning submits that the Mr. Derkowski does not have to demonstrate in evidence that his BAC was under the legal limit at the time of the accident because there is no statutory presumption that his blood was in excess of the legal limit because the first of his two breath samples was not taken within two hours of the accident. He then submits that what has become known as the Carter defence or whatever may be remaining of it after the amendments to s. 258(1)(c) of the Criminal Code is only applicable when the Crown complies with the statutory scheme in s. 258(1)[c] in order to avail itself of the presumption that the readings obtained on the Intoxilyzer with respect to an accused person will be deemed to be the same at the last known time of that person's operating a motor vehicle.
74Mr. Thorning concedes that the Crown, however, can prove the BAC at the relevant time if and only if however the assumptions upon which the CFS toxicologist relied for the preparation of her Exhibit 2 report have been substantiated by the evidence in this trial. If those assumptions have not been proven or if even one of them has not been sufficiently proven, Mr. Thorning submits that there is then no evidence upon which the court can rely beyond a reasonable doubt of Mr. Derkowski's BAC at the time of the accident which was his last known time of operating his motor vehicle.
75At paragraph 18 of his written submissions, Mr. Thorning submits:
In this case, for the reasons already stated, the defendant asserts that the time of incident (accident) has not been proven and that he engaged in bolus drinking. There is a reasonable doubt that he was over 80 at the time of the offence.
76Mr. Thorning then listed another heading in his written submissions which he called OTHER ISSUES.
77At paragraphs 19 and 20, Mr. Thorning submitted that it was his submission that the combined evidence of both Mr. Derkowski and P.C. Tokat should allow the court to conclude that Mr. Derkowski's vehicle was travelling more slowly at the time before the collision than had been the police vehicle. He references the December 19, 2011, transcript at page 6, line 10, and following for that submission. Therefore, he argues, it stands to reason that if Mr. Derkowski was moving more slowly after approaching and obeying the stop sign at John and James, then he must have stopped at the sign and was in the process of accelerating from the slower speed at which he would be taking off from the stop sign at the time of the collision.
78It is, therefore, the submission of Mr. Thorning on his combined oral submissions and written submissions that the Crown has failed to establish beyond a reasonable doubt that the expert toxicologist relied upon a valid assumption that has been established in the evidence on this trial that the collision occurred at approximately 2:40 a.m. In addition, he argues that the court should find that there is some evidence of bolus drinking on the part of the accused that the expert discounted. For these two reasons, he argues that the Exhibit 2 report cannot be relied upon by the court to establish the BAC of Mr. Derkowski at the time of his last operation of his motor vehicle when it was struck by P.C. Tokat. Therefore, he argues that the s. 253(1)(b) charge must fail.
79With respect to the 253(1)(a) count his arguments were made in his oral submissions on August 8, 2012, and I have already covered them. I simply note that although he told the court at the end of the day on August 8 that one of the things he wished to address in his written submissions was the fact that the Crown is asking the court to rely upon R. v. Phillips supra as authority to permit the court to conclude on the opinion of the toxicologist that anyone whose BAC was equivalent to the readings obtained from Mr. Derkowski of 114 milligrams and 107 milligrams respectively of alcohol in 100 millilitres of blood at the times shown on exhibit 1, and then factored back to the expert's assumption of the approximate time of the accident to be 105 to 150 mg. of alcohol in 100 ml of blood, would have his or her ability to operate a motor vehicle impaired by alcohol. However, I could find nothing in his written submissions that actually addressed that point.
80I am presuming that Mr. Thorning is content to rest his argument upon the reasoning which he has submitted to the court that the court should not accept the opinion of the expert toxicologist in Exhibit Number 2 about Mr. Derkowski's BAC readings at the time of the accident because of the fact that that accident time was not adequately proven by the Crown. To some extent the two arguments are obviously interrelated.
The Crown's Written Submissions
The Time of the Collision
81Ms. Tasson submits that there is ample reliable evidence to support the common sense inference that the collision occurred at approximately 2:40 a.m. She refers the court to P.C. Tokat's evidence that the collision occurred between 2:38 a.m. when he was dispatched and 2:43 a.m. when he formed his grounds after approaching the accused in his vehicle after the accident that Mr. Derkowski was impaired by alcohol and arrested him on the offence of operating his motor vehicle while his ability to do so was impaired by alcohol.
82The Crown submits that P.C. Tokat was not challenged in cross-examination on the accuracy of either the time of his dispatch or the time when he formed his grounds and arrested the accused. In addition, he was not challenged on any other aspect of his investigation that dealt with timing issues.
83Ms. Tasson takes issue with Mr. Thorning's submission at paragraph 9 of his written submissions that there is no evidence of where the officer was at the time when he was dispatched in order for the court to be able to assess the approximate distance he would have had to travel to reach the accident scene and thereby estimate the approximate time of the collision. She argues that Mr. Thorning did not make reference to a very relevant portion of the evidence of P.C. Tokat from the December 19 transcript. At paragraph 4 of her written submission, she sets out passages of that testimony from page 24, line 24, to page 25, line 17 of the cross-examination:
Q. So, you – you know, because you've been involved in these cases before, as you've indicted to us, that – that time is – is important in the sense that if you've got an officer who's got someone on the side of the road, you better get them the A.S.D. pretty quickly, right?
A. No, sir. I would – I would not rush to deliver an approved screening device to a colleague of mine, especially when I – like I testified, I was proceeding southbound on Brant Street and I made a left turn on to James Street to proceed eastbound.
So I was accelerating normally like I said traveling at about 40, 50 kilometers per hour. There's not much distance between Brant Street and John Street for me to be able to accelerate up to a high right [sic] of speed.
Also, my colleague who requested the approved screening device was not far at all. He was at – he was just farther – farther east of me there at Martha Street and James Street, just a couple – a couple of blocks over. So, I I traveling at, you know, a reasonable speed, 40, 50 kilometers per hour, it would take roughly a minute to get there, if that.
Q. Okay.
A. So, there was no reason for me to rush.
Q. All right. Ten kilometers might not seem like a lot but isn't it likely that you were traveling at the speed limit then?
A. I was. . .
84From this evidence, the Crown submits that the court can conclude reasonably that the collision must have happened within one minute of the officer's dispatched call.
85With respect to Mr. Thorning's submission that the officer could not possibly have completed all of the tasks that he claimed that he did and still managed to arrest the accused at 2:43 if indeed the accident happened at approximately 2:40, the Crown reminds the court that P.C. Tokat was not challenged about how much time any of these steps of his investigation consumed individually or cumulatively. In addition, she asks the court to apply its common sense and conclude that the steps that were described by the officer could easily have been done within three minutes.
86At paragraph 7 of her written submissions, she sets out those steps as given by P.C. Tokat on December 19, 2011, at page 6, line 15 to page 7, line 11:
a. Activated his emergency lights & stopped cruiser;
b. Approached accused's vehicle;
c. Obtained driver's licence from accused;
d. Had conversation with accused during which accused admitted that he consumed one drink at Joe Dogs and that he is not from Burlington and he did not see the stop sign;
e. Confirmed accused was not injured both through officer's observations and accused's response that he was not injured; and
f. Observed accused's eyes to be red, watery and rimmed.
87In conclusion on this point, the Crown asked the court to find that there is ample evidence for the court to conclude that the collision occurred between 2:38 a.m. and 2:43 a.m. and that a five minute "window" should meet the definition of "approximately" that is defined by the Canadian Oxford English Dictionary cited by Mr. Thorning.
Utterances of the Accused to P.C. Tokat Before His Arrest
88The Crown begins by reminding the court that the accused was not compelled to testify in his defence, but he did elect to do so. In his testimony, the Crown submits that the accused chose to include part of this roadside conversation with P.C. Tokat as part of his evidence in chief and, therefore, it is not open to Mr. Thorning to argue that the court should not be able to rely upon that evidence. Ms. Tasson agreed with Mr. Thorning's argument contained in paragraph 14 of his written submissions and his reliance upon R. v. Orbanski and Elias supra. She concedes that the Crown cannot lead evidence of roadside statements in impaired driving cases because the accused's s. 10(b) right to counsel is suspended at that point and the accused has not by that time had an opportunity to consult with counsel. As she points out, that that is exactly why she did not lead those statements as part of the trial proper.
89However, at paragraph 12 of her written submissions, Ms. Tasson states that the testimony of the accused allows the Crown to ask the court to rely upon that utterance because the logic and reasoning that underlies the decision of Orbanski and Elias do not apply to the accused's testimony at trial. She emphasizes that he testified after he had exercised his right to counsel. As she rather quaintly put it, Ms. Tasson argued that had the accused elected not to testify, the court would have no evidence of what he had said to the officer at the roadside in the body of trial evidence. However, since he chose to testify, he cannot subsequently "carve out unfavourable portions of his evidence such as his roadside conversation with the officer".
90In conclusion on this point, the Crown submits that the court can and should consider the accused's evidence that he told the officer, "Yeah, I just had one" and compare it to his evidence of what he actually had consumed according to his own testimony before he left Joe Dog's bar. The Crown, therefore, asks the court to find that the accused lied to the officer about how much alcohol he had actually consumed and that that lie should be taken into account by the court now in any assessment the court is conducting of the credibility and reliability of the accused's evidence.
Speed
91Ms. Tasson submits that there are many inferences available from the fact that both the accused and the officer estimated that the accused's vehicle was traveling more slowly than the officer's cruiser. She suggests an alternative one to that suggested by Mr. Thorning of the possible fact that the accused's vehicle was simply driving slower than the officer's cruiser, period. A second possible suggestion, she argues, is that the accused's vehicle had slowed down and rolled through the stop sign as opposed to stopping at it. For these reasons, Ms. Tasson submits that the court should not conclude that the accused must have stopped at the stop sign before he inched forward, as he has testified, and attempted to observe oncoming traffic on James Street before he proceeded into the intersection and the collision occurred.
92In conclusion then, Ms. Tasson, on a combination of oral submissions on August 8 and her subsequent written submissions, asks this court to find that the Crown has indeed proven both of these charges beyond a reasonable doubt, and in so doing, the court should find that it can rely and should rely upon the Exhibit 2 CFS toxicology report and the conclusions contained in it.
Analysis
The Section 253(1)(b) Count
93Whether or not I ultimately find that the collision occurred between 2:00 and 2:05 a.m. or at approximately 2:40 a.m. the Crown needs to rely upon the Exhibit 2 report by the CFS toxicologist in order to establish that Mr. Derkowski's BAC at the last known time of his driving was in excess of the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. The Crown cannot avail itself of the presumption of accuracy and identity provided by Parliament in s. 258(1)(c) of the Criminal Code in this case because the first breath sample taken from Mr. Derkowski was at 4:56 a.m. which would be greater than the two hour period provided for by s. 258(1)(c) in order for the presumption to apply regardless of whether the accident occurred at 2:40 a.m. or 2:05 a.m.
94The Exhibit 2 toxicology report was filed on consent of both the Crown and Mr. Thorning pursuant to s.657.3(1). After the accused testified on the trial proper, the Crown did not make an application to seek leave to have the toxicologist brought to court for purposes of viva voce examination with respect to her conclusions in light of the accused's evidence that was then part of the totality of the evidence in this trial.
95The factual underpinnings relied upon by Ms. Bugyra in her toxicology report were:
- that the accused had been involved in an incident at approximately 2:40 a.m.;
- Intoxilyzer 8000C results of 114 and 107 milligrams of alcohol in 100 millilitres of blood obtained at approximately 4:56 a.m. and 5:17 a.m. respectively.
96Ms. Bugyra then provided her opinion that the projected BAC of Mr. Derkowski at 2:40 a.m. would have been 105 to 150 milligrams of alcohol in 100 millilitres of blood. She also pointed out that "this projected range is independent of the gender, height, weight, and age of the individual, but is dependent on the following additional factors". She then listed those factors which are commonly referred to as the assumptions of a toxicologist in the preparation of such reports:
the rate of elimination of alcohol from the blood ranging from 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour (milligrams per 100 milliliters per hour);
allowance for a plateau of up to two hours;
no consumption of large quantities of alcoholic beverages shortly prior to the incident
no consumption of alcoholic beverages after the incident and before the breath tests.
97Both the Crown and the defence have relied upon the Ontario Court of Appeal decisions of R. v. Paszczenko and R. v. Lima supra. At paragraphs 1 and 2 of the decision, Mr. Justice Blair stated:
1 The appeals of Mr. Paszczenko and Mr. Lima were heard on the same day. The central issue in each concerns the manner in which the Crown must prove the facts underlying the four assumptions upon which expert toxicology reports filed in "over 80" cases where the breath test has not been administered within two hours of the driving incident are routinely based.
2 In the jargon of these cases, the four assumptions are commonly referred to as (i) no "bolus drinking", i.e., no rapid consumption of large amounts of alcohol shortly prior to the incident; (ii) no consumption of alcohol between the incident and the breath test; (iii) an "elimination rate" of 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour; and (iv) a two-hour "plateau" after drinking where the rate of elimination does not change.
98In a very detailed summary in paragraphs 21 through 23, Mr. Justice Blair considered the general considerations of proof with respect to the assumptions upon which an expert toxicologist relied in the preparation of a s. 657.3 report.
21 There can be no dispute that the onus is on the Crown to prove the facts underlying the expert's report, including the assumptions upon which the expert relies. As Sopinka J. noted in R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 at p. 898: "before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist." See also, R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785 at p. 790 (C.A.), leave to appeal refused, [1996] S.C.C.A. No. 465. As noted above, however, the issue here is not whether the Crown must approve the assumptions, but how it is required to do so.
22 In this respect – as the SCAJ in Paszczenko noted – the Ontario jurisprudence in the courts below falls into two categories. The first group of authorities requires that all four of the standard assumptions on which the toxicologist opinion is based be proved by case-specific evidence: see, for example, R. v. Castro-Mendoza (November 25, 2004), Toronto (Ont. C.J.); R. v. Hansraj, [2003] O.J. No. 3746 (C.J.); R. v. Lin, 2007 ONCJ 312; R. v. Virk, [1999] O.J. No. 5524 (C.J.); R. v. Nauss, [2003] O.J. No. 5943 (C.J.); and R. v. Thompson, [2007] O.J. No. 1204 (C.J.). The second group of authorities holds that the assumptions about elimination rates and the plateau differ from the assumptions regarding drinking before and after the incident in terms of the proof required, and that the elimination rate and plateau assumptions are matters of scientific knowledge on which the expert is entitled to rely without further proof by the Crown: see, R. v. Kim, 2007 ONCJ 488; R. v. Lima, [2009] O.J. No. 3805, 2009 CanLII, 49638 (Ont. S.C.); R. v. Calabretta, 2008 ONCJ 27, aff'd [2008] O.J. No. 4188 (S.C.); R. v. Rajeswaran, [2003] O.J. No. 2210 (C.J.); and R. v. Pucknell, [2000] O.J. No. 3512 (S.C.).
23 In my view, the latter line of jurisprudence represents the proper approach. It is consistent with that taken by the Supreme Court of Canada in Lavallee and in S.A.B., where the distinction is made between "evidence that an expert obtains and acts upon within the scope of his or her expertise" and "evidence that an expert obtains from a party to the litigation": S.A.B., at paras. 62-63. In the toxicology report context, this distinction has been described as the difference between "foundation facts" that must be proven in evidence (bolus drinking and post-incident drinking have been held to fall into this category), and information acted upon by an expert obtained as a result of his or her expertise (the elimination rate and plateau assumptions have been held to fall into this category). I agree with this distinction and accept as accurate the following statement by C. Brewer J. in Kim, at para. 12:
However, it is also well established that an expert is entitled to rely on information that is widely used and acknowledged as reliable within that field and that is employed as an accepted means of making decisions within that area of expertise: see R. v. Zundel, (1987), 1987 CanLII 121 (ON CA), 31 C.C.C. (3d) 97 (Ont. C.A.) at 146; R. v. Lavallee, supra, per Sopinka J., concurring, at 132; R. v. Terceira, (1997), 1998 CanLII 2174 (ON CA), 123 C.C.C. (3d) 1 (Ont. C.A.) at 37-39. This information may form a basis for the expert's opinion without any need to lead evidence to support it. [Emphasis added.]
The Time of the Accident
99The first factual foundation relied upon by the toxicologist in this case that is challenged by Mr. Thorning is her reliance upon the accident having occurred at approximately 2:40 a.m. Although the toxicologist seems to employ the noun 'incident' as opposed to accident, I am satisfied that the word incident and the word accident or synonymous on the facts of this case.
100I accept the Crown's argument set out in her written submissions that a careful examination of the evidence of P.C. Tokat from the December 19, 2011, transcript satisfies the court that he was dispatched at 2:38 a.m. to bring an ASD device to his fellow officer. It is undisputed that P.C. Tokat collided with Mr. Derkowski's motor vehicle at a point in time after that dispatch time of 2:38 a.m. I am satisfied from an examination of his evidence and also from the Crown's submissions that he must have had that accident within approximately one to two minutes of the dispatch call. I, therefore, find that the accused's estimate of the time of the accident in his own evidence of 2:00 to 2:05 a.m. is not accurate. I am, however, not prepared to find that he was being purposely untruthful to the court in his testimony on that point. I take it only as an estimate.
101I also accept the Crown's argument that in the absence of cross-examination of P.C. Tokat in a detailed fashion as to how much time it took him to conduct the five or six steps of his investigation immediately following the collision which he has stated he was able to accomplish in the three minute period between approximately 2:40 a.m. and the arrest at 2:43 a.m. I am not prepared to find that his evidence is so unreasonable from an objective common sense standpoint that I should be circumspect about its accuracy.
102Finally on this point, I also agree with the Crown's submission in response to Mr. Thorning's innovative submission about the meaning that should be placed upon the term approximately by resorting to the Canadian Oxford English Dictionary, that a four or five-minute interval of time during which an event is alleged to have happened would meet the definition of "approximately".
103For these reasons, I respectfully reject Mr. Thorning's submission that the reliance of the toxicologist upon the accident having occurred at 2:40 a.m. is fatal to the ultimate conclusions that she drew about Mr. Derkowski's BAC content at the time of his last known operation of his vehicle.
104Mr. Thorning also submitted that the third assumption relied upon, of the four stated by Ms. Bugyra, that there had been no consumption of large quantities of alcoholic beverages shortly prior to the incident is flawed in two ways. First, he argues that there is no quantification by the toxicologist of what she means by the term "large quantities of alcoholic beverages".
105Secondly, Mr. Thorning argues that there has been evidence given by Mr. Derkowski that he had consumed two shots of tequila just moments before he left the bar and entered his motor vehicle to begin driving down John Street. Although there is no evidence on this point in this trial, I do not believe there is any dispute taken by the Crown or by Mr. Thorning that tequila is a well-known liquor which is normally 40 per cent alcohol.
106Mr. Justice Blair in R. v. Lima supra, discussed this particular type of assumption by a toxicologist in a 657.3 report.
The "No Bolus Drinking" Assumption
27 "Bolus drinking" is generally meant to describe the consumption of large quantities of alcohol immediately or shortly before driving: see Grosse, at p. 788; R. v. Hall 2007 ONCA 8 (CanLII), (2007), 83 O.R. (3d) 641 (C.A.), at para. 14. See also Phillips at pp. 158-162, for a description of the "relatively rare" phenomenon, although not by the "no bolus drinking" name.
28 In establishing that an accused has not engaged in bolus drinking, the Crown is in the unenviable position of having to prove a negative. But how does it meet that onus in circumstances where – as is likely in many cases – it has no statement or evidence from the accused as to his or her drinking pattern at the relevant time and no other witnesses or evidence to shed any light on that issue? That is the dilemma posed, principally, by the Lima appeal.
29 At one level, the answer is straightforward: the toxicologist's report is premised – amongst other things – on there being no bolus drinking. In the absence of something on the record to suggest the contrary, on what basis could a trier of fact conclude there was bolus drinking? This Court has answered the question posed by concluding that triers of fact may resort to a common sense inference in such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving: see Grosse, Hall, and R. v. Bulman, 2007 ONCA 169 (CanLII). As noted above, bolus drinking has been said to be a "relatively rare" phenomenon: Phillips, at pp. 158-162. "No bolus drinking" is therefore largely a matter of common knowledge and common sense about how people behave.
30 In Grosse, at p. 792, the Court said:
The trial judge was also entitled to consider that it was inherently unlikely that the respondent, in the space of less than 30 minutes, before embarking on his trip home to Brampton would consume the equivalent of nine ounces of alcohol. This was not a matter of taking judicial notice of drinking patterns but merely applying common sense as to how ordinary people behave. [Emphasis added.]
32 I would frame the rationale for this approach as the imposition of a practical evidentiary burden on the accused, not to persuade or convince the trier of fact that there was bolus drinking involved, but to point to something in the evidence (either in the Crown's case, or in evidence led by the defence) that at least puts the possibility that the accused had engaged in bolus drinking in play. The imposition of a practical evidentiary burden to come forward with evidence is simply another way of explaining the invitation to draw a common sense inference which puts the accused in essentially the same spot if he or she cannot point to some evidence to overcome either hurdle.
33 Grosse was also a case involving proof of the bolus drinking assumption underlying a toxicologist's "over 80" opinion. In rejecting a Crown argument resting on the difficulty of proving a negative and urging that there should be an onus on the accused to show the consumption of large quantities of alcohol just prior to the incident – particularly since this information is private to the accused – the Court said at p. 790:
[Counsel for the Crown] argued that the amount of alcohol consumed is a matter peculiarly within the knowledge of the accused and it is fair that the accused have the burden of proof of this issue. We assume that [he] is suggesting that there be only an evidentiary burden on the accused, not a persuasive burden.
In our view this argument must also be rejected. In effect [the Crown] would have us create a common law presumption, in a case such as this, that in the absence of evidence to the contrary an accused against whom expert evidence of blood-alcohol level is tendered is deemed not to have consumed large quantities of alcohol immediately before providing a breath sample. There is no basis for creating such an extraordinary presumption. Parliament has by statute created a presumption to assist the Crown in proof of the blood-alcohol level at the time of the alleged offence. That presumption, however, is based on proof of a number of facts including proof that the tests were taken within two hours of the alleged offence.
It would not be appropriate for the courts to broaden the scope of the statutory presumption when the carefully created conditions in s. 258 cannot be met. Where the Crown cannot rely upon the presumption in s. 258(1)(c) it must prove its case in the ordinary way. [Emphasis added.]
34 The common law presumption advocated by the Crown and rejected by the Court in Grosse, is not the same as the practical evidentiary burden to come forward with some evidence that arises through the application of the common sense inference described above. In Grosse, the Court spoke of the accused having the burden of proof on the issue and of the potential creation of a presumption of law that would deem no bolus drinking to be proven in the absence of evidence to the contrary. This is the language of persuasion. Here, the effect of the evidentiary shift is not to require the accused to convince the trier of fact of anything, but simply to be able to point to some evidence on the basis of which it can be said the issue of bolus drinking is alive on the record.
107In disposing of the Lima appeal favourably to the Crown, the Ontario Court of Appeal stated at paragraphs, 38, 39 and 40:
38 As noted above, the Court in Grosse resolved the issue before it by resorting to the common sense inference that normal people do not ingest large amounts of alcohol shortly before getting into their car and driving. This Court has adopted that same technique in Hall and Bulman. That common sense inference was available to the trial judge and the SCAJ in Mr. Lima's case, and particularly so in view of the following factors:
a) Mr. Lima was stopped while driving his vehicle in an unusual fashion;
b) He exhibited signs of driving while intoxicated at the time (smell of alcohol on his breath; red, bloodshot and glassy eyes; flushed face);
c) The trial judge found by inference from the arresting officer's evidence that there was no alcohol in Mr. Lima's car, and that he had no access to alcohol from the time of his arrest to the time of the breathalyzer tests;
d) There was no evidence that Mr. Lima had just come from an establishment serving alcoholic beverages; and
e) The trial judge found that there was no change in the indicia of alcohol consumption during the period between his arrest and the administration of the breathalyzer tests, thus rejecting the defence argument that increased signs of intoxication were evidence of bolus drinking.
39 The fact that Mr. Lima was exhibiting signs of intoxication while driving and immediately after exiting the vehicle, while not conclusive, provides some circumstantial evidence of the absence of bolus drinking, in my view. The effect of bolus drinking is to create a situation where the accused driver's BAC may have been below 80 milligrams of alcohol in 100 millilitres of blood at the time of the incident, yet still register "over 80" in a read-back calculation done later because it was still rising at the time of the incident. If the BAC were less than 80 at the time of the incident, one would not expect to see such indicia of intoxication. This is circumstantial evidence tending to support the view that there was no bolus drinking in the circumstances.
40 Given these facts, together with the application of the common sense inference, the trial judge was entitled to conclude, as she did, that the Crown had proved the facts underlying the toxicologist's "no bolus drinking" assumption. The SCAJ correctly upheld the finding.
108In the case at bar, I find that there was evidence that Mr. Derkowski "put into play" that he had consumed a significant amount of alcohol just before leaving the bar and beginning to operate his motor vehicle. I see no reason for me to reject his evidence that he had those drinks just before or after the closing time of the bar which I do not believe is in dispute as being 2:00 a.m.
109The toxicologist report is dated November 8, 2010, which was some 21 months before Mr. Derkowski testified on August 8, 2012. After listening to the accused's testimony, the Crown did not make an application to bring the toxicologist to court for purposes of questioning her about the accused's testimony of what could be considered in my view to be bolus drinking before his arrest.
110Although Mr. Lima apparently had been stopped while driving his vehicle in an unusual fashion, I could find nothing in the factual synopsis of the Court of Appeal decision to assist me in what exactly that unusual fashion had been. In any event, in this case on the totality of the evidence of P.C. Tokat and Mr. Derkowski, I find that I cannot be satisfied, certainly not beyond a reasonable doubt, that Mr. Derkowski completely failed to stop at the stop sign and John and James or for that matter that he simply conducted, as the Crown characterized the possibility, a "rolling stop". I find that the combined effect of their evidence is to suggest that the building on the northwest corner of that intersection can to some extent at least impede the vision of drivers southbound on John with respect to approaching traffic coming from the west along James towards the intersection depending upon a number of factors of course. Therefore, I agree with Mr. Thorning's argument that the fact of the accident should not be found by this court to be a symptom of impairment whereas an unexplained accident might well be. Having drawn that conclusion, then I find that there is another distinction between the factors that were found to support the common sense inference against Mr. Lima having engaged in bolus drinking by comparison with this case at bar.
111Another factor emphasized by Mr. Justice Blair in Paszczenko supra, at paragraph 38 was the fact that there had been no evidence that Mr. Lima had just come from an establishment serving alcoholic beverages. Quite obviously that is not the case here. It has not been disputed that Mr. Derkowski was drinking at the licensed establishment Joe Dog's, and right up to the point when he left that establishment to enter his vehicle.
112Mr. Thorning is not challenging assumptions one, two and four in Ms. Bugyra's report and I agree with the crown that those assumptions are now considered to be routine. One authority for that proposition would be paragraph 42 of R. v. Lima supra.
113I, therefore, find that Mr. Derkowski did place some evidence that could be considered as bolus drinking on the record when he testified, and therefore, that evidence remains "alive" as stated by Mr. Justice Blair in paragraph 34 in Lima supra. In my view, when the Crown chooses to rely upon a 657.3 report of a toxicologist, it is axiomatic that all of the factual underpinnings and evidentiary underpinnings for the assumptions of the toxicologist must be proven. Again see paragraph 21, R. v. Lima supra. There is no room for ambiguity.
114In the result, I find that there is ambiguity between assumption number three in Ms. Bugyra's toxicology report and the evidence of the accused which placed on the table the possibility of bolus drinking by him shortly before the collision.
115I therefore find that the Exhibit 2 toxicology report cannot be relied upon by the Crown to establish proof beyond a reasonable doubt of the BAC level of Mr. Derkowski at the time of the collision with P.C. Tokat's cruiser which I am prepared to say was between 2:38 and 2:40 a.m. The s. 253(1)(b) count is therefore dismissed.
The Admissibility of the Accused's Utterances to P.C. Tokat Before His Arrest
116I agree with the Crown's argument that once the accused testified and chose to refer to the evidence of telling the officer that he had only had one drink at the pub, he is no longer protected by the rule of evidence prohibiting admissibility for the truth of the contents of utterances made which were relied upon the officer in the formation of his RPG for an arrest. I find the Crown's argument that the accused was probably lying to the officer when he made that comment to be attractive given the accused's subsequent testimony about the two shots of tequila that he had consumed just before leaving the bar. However, I am not prepared to reject all of his testimony in this trial simply because he may have engaged in an attempt to make the officer feel that he had not had an excessive amount to drink when he was first investigated. I find from a common sense analysis standpoint and my judicial experience that such underestimated or understated comments to police officers under similar circumstances are fairly common. Even P.C. Tokat said much the same thing. As I have already said, but I will repeat for purposes of this particular finding, some of the accused's evidence I find was supported by the evidence of P.C. Tokat and I refer again to the example of the circumstances surrounding the collision between their two vehicles.
The 253(1)(a) Count
Physical Symptoms of Impairment
117As I have already stated in my analysis of the 253(1)(b) count, I find that the circumstances that gave rise to the collision between Mr. Derkowski's vehicle and P.C. Tokat's vehicle do not support an inference of impairment by alcohol by themselves. This was not an unexplained accident and I find that the explanation offered by the accused in his testimony could reasonably be true. I say that at the risk of repetition, because of the combined evidence of P.C. Tokat and the accused on the subject of the visual obstruction, at least to some degree, to southbound John Street drivers of the building that is located on the northwest corner of the James/John intersection.
118I think that the Crown hit the nail on the head when she submitted that there are two or three inferences available to the court on the cause of the accident; namely that the accused did not stop at all at the sign; that the accused came to a rolling stop and proceeded somewhat carelessly into the intersection, and, thirdly, that he came to a full stop as he has testified, looked both ways and was unable to detect the oncoming vehicle of P.C. Tokat. His inability to do so could have been because he was impaired by alcohol or it also could have been because of the partial obstruction of the building or the distance P.C. Tokat's vehicle was from the intersection at that point. In other words, there is a multiple choice of inferences available to the court and I am not prepared to make the most adverse inference to the accused based on the totality of the evidence.
119With respect to the other physical symptoms of impairment that were described by P.C. Tokat and P.C. Caldwell, they were limited to an odour of alcohol on the breath of the accused and reddish eyes by P.C. Tokat and red and glassy eyes with a flushed face by P.C. Caldwell. Given the circumstances of the collision and the now well-established common law authorities that state that such limited evidence of impairment by alcohol is insufficient to sustain a finding of guilt beyond a reasonable doubt on a 253(1)(a) count even on the low threshold standard of R. v. Stellato 1993 CanLII 3375 (ON CA), [1993] 78 C.C.C. (3d) 380, I find that the Crown cannot satisfy me beyond a reasonable doubt that Mr. Derkowski's ability to operate his motor vehicle was impaired by alcohol on the basis of that body of evidence.
120What is left to the Crown then on this count is to rely upon the toxicology report, Exhibit Number 2, which I have already decided cannot be relied upon for the proof of Mr. Derkowski's BAC at the time of the accident. Therefore, although the toxicologist offers the opinion that anyone with a BAC of the level that was demonstrated by Mr. Derkowski on his Intoxilyzer tests would have his or her ability to operate a motor vehicle impaired by alcohol, I find that I cannot rely upon the toxicologist's opinion of the accused's BAC level and/or likely level at 2:40 a.m.
121For these reasons, I also find that the Crown has failed to satisfy me beyond a reasonable doubt that Mr. Derkowski's ability to operate his motor vehicle at 2:40 a.m. on the date in question was impaired by alcohol and that charge is also dismissed.
Released: February 6, 2013
Signed: "Justice F.L. Forsyth"