Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Michael Pyrek
Before: Justice Paul F. Monahan
Heard on: April 27, 28, 30 and May 12, 2015
Reasons for Judgment
Released on: June 15, 2015
Counsel
Mr. C. Presswood — for the Crown
Mr. H. Bassi — for the defendant Michael Pyrek
MONAHAN J.:
INTRODUCTION
1Michael Pyrek is charged with dangerous operation of a motor vehicle on or about September 23, 2012 causing bodily harm to Carlee Kather contrary to s.249(3) of the Criminal Code of Canada (the "Code"). He is further charged with having operated a motor vehicle while impaired by alcohol or a drug and thereby caused bodily harm to Carlee Kather contrary to s. 255(2) of the Code. Finally, he is charged with having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 mL of blood and did while operating a motor vehicle cause an accident resulting in bodily harm to Carlee Kather contrary to s. 255(2.1) of the Code. These are all straight indictable offences and Mr. Pyrek has elected to be tried in the Ontario Court of Justice.
2The trial was heard on April 27, 28, 30 and May 12, 2015. Mr. Pyrek brought an application at trial pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the "Charter") to exclude certain blood samples obtained pursuant to a search warrant issued October 22, 2012. It is Mr. Pyrek's position that the blood samples were obtained contrary to s. 8 of the Charter.
3I heard the trial and the Charter application on a blended basis and on consent of the parties. It was also agreed that my decision on the Charter application would be deferred until the time of my decision on the trial proper.
4Mr. Pyrek was at a small gathering of four friends on September 22, 2012. In the early morning hours of September 23, 2012, Mr. Pyrek and Ms. Kather left the party to go and get food at McDonalds. Mr. Pyrek was driving. They never made it to McDonalds. Mr. Pyrek lost control of his vehicle on Edenwood Drive in the City of Mississauga. Both he and Ms. Kather were injured.
5Mr. Pyrek provided one breath sample but due to apparent internal bleeding he was unable to provide a further breath sample. Blood taken for medical purposes was analyzed for blood-alcohol content by the Center for Forensic Sciences ("CFS").
6The trial took place over four days. The crown called 11 witnesses as follows:
(i) Ms. Carlee Kather testified as to her recollection of the accident and the events leading up to it;
(ii) Messrs. Taseer Muhammad and Bruce Lytle, two witnesses from the neighbourhood where the accident occurred testified as to their observations shortly after the accident and as to driving conditions in area;
(iii) two police officers, Constables Garvin and Baillargeon, who attended at the accident scene and at the hospital, testified;
(iv) Constable Faulkner, the breath technician who was involved in taking the breath sample and the obtaining of the blood sample gave evidence;
(v) four hospital witnesses namely Dr. Rhonda Taylor and three medical technologists, Ms. Sadaf Khan, Ms. Regina Edmunds and Ms. Amanjot Tathgur gave evidence as to events at Credit Valley Hospital where Mr. Pyrek and Ms. Kather were taken after the accident; and
(vi) Ms. Inger Bugyra gave expert toxicology evidence.
7On the trial proper, the defence called a friend of Mr. Pyrek's who was present at the party, Mr. Alex Abramov. The defence called no other evidence on the Charter voir dire or the trial proper.
FACTS
8Most of the facts of this case were not contested. The facts flow from the evidence of the witnesses whose testimony I accepted. The only witness whose credibility I had some concerns about was Mr. Abramov in the sense that he appeared to give answers which he thought would be most favourable to his friend, Mr. Pyrek. Having said that, I accept much of what he said and I will be clear when it comes time to review his evidence as to which parts of it I accept and which parts I do not. In other cases, witnesses were credible but not all evidence they gave was reliable. To the extent that there are conflicts in some of the evidence, reliability issues or disputed facts, I will identify and determine those matters as set out below. Let me be clear as well that I am not necessarily setting out all of the evidence of each witness. An overview of the evidence is set out below.
Taseer Muhammad
9Mr. Mohammad is a project manager who works at OLG. He lives at 6572 Edenwood Drive. He testified that he was sleeping on September 23, 2012 when he was awoken by a loud bang at what he thought was about 3 AM. He looked through his bathroom window in the front of the house and saw there was a motor vehicle accident in front of his house. There was a car wrapped around a tree. The accident had occurred on the east side of Edenwood Drive.
10Mr. Mohammad called 911 right away. The 911 operator told him to stay away from the vehicle as it might be dangerous. He could hear a female voice screaming coming out of the vehicle. He and his neighbours were communicating with the female person in the car. She was in the front passenger seat. He learned that there was also another person (Mr. Pyrek) in the car which he found hard to believe given the condition of the car. He did not see that other person.
11Emergency personnel arrived soon and were cutting into the car from the top of it to try to get the occupants out. He testified that the firefighters arrived about 10 minutes after the accident. The police arrived a few minutes after that.
12Edenwood Drive runs north-south parallel to Winston Churchill Boulevard. At the south end of Edenwood Drive is Tours Road where there is a stop sign. At the north end of this section of Edenwood Drive is Battleford Road where there is a traffic light. There are no stop signs or traffic lights on this section of Edenwood Drive between Tours Road and Battleford Road. Tours Road is about 500 m to the south of where the accident occurred on Edenwood Drive.
13The weather that night was warm and clear at the time of the accident in the early morning hours of September 23, 2012.
14Mr. Muhammad testified that he thought the speed limit in the area was 30 km/h. However under cross-examination it was suggested to him that it was 50 km/h and he seemed to acknowledge that it could be 50 km/h. He was also aware of two other accidents in this general vicinity on Edenwood Drive. There was one accident after this one and he thought one had occurred before. One of the accidents involved a car hitting the fence on the east side near the tree involved in the September 23, 2012 accident. Another accident involved hitting a tree on the west side to the north of where the September 23, 2012 accident occurred. There was no evidence as to the cause of these accidents or any further information about them.
15Subsequent to this accident, to the south of where the accident occurred, a solar sign was installed which tells drivers to slow down if they are driving too fast. Also subsequent to the accident, a sign was erected to the south warning drivers of a curve in the road and the speed limit was changed from 50 km/h to 40 km/h in this area. For reasons which will be set out below under Issue 6, I find that the speed limit at the time of the accident was 50 km/h.
Bruce Lytle
16Mr. Lytle has lived at 6612 Edenwood Drive for 30 years. He was awakened by a loud bang on September 23, 2012. He got out of bed and went outside. He told his wife to call 911. When he first went out of the house and came to about within 300 feet of the accident where he could see a car wrapped around a pole or a tree. He had never seen car wrapped around a tree or a pole like that.
17He said the lighting in the area was adequate. He thought the speed limit in the area at the time of the accident was 40 km an hour. He testified to there being many accidents in the area. He described the curve in the road to the south of the accident as "slight".
Carlee Kather
18Ms. Kather was the passenger in the vehicle driven by Mr. Pyrek. She was 18 years old at the time. She was 20 years old at the time of her testimony at trial.
19She met Mr. Pyrek through a friend of hers who she had worked with, Alex Abramov.
20On September 22, 2012, she was with her friend Sierra at Sierra's house for about three hours before Mr. Pyrek picked them up. She thought that he picked them up about 11 or 11:30 PM on September 22. After they were picked up, they went right to Alex's house on Saracen Court. In cross-examination she acknowledged in that it could have been 12:30 AM when Mr. Pyrek picked them up. She had a bottle of wine with her. She testified that she was not drinking when she was at Sierra's house and that she was sober when she arrived at Alex's house. I do accept Ms. Kather's point that she was sober when she arrived. Mr. Abramov said otherwise but I do not believe that his recollection is accurate on this point.
21It was suggested to her in cross-examination that it was closer to 1 AM when they arrived at Alex's house and she said she thought it was earlier. She said it was possible that Michael had some beer with him when they arrived.
22At Alex's house, she was drinking vodka and Michael was drinking beer and, at some point, a mixed drink of some sort.
23They played a drinking game called "beer pong" at Alex's house. She and Michael were on one team and Sierra and Alex were on the other. The game is played as follows: there are 6 cups per side with beer in them and each team tries to get a ping-pong ball into one of the cups of the other team. When a team gets a ball in the other team's cup, the team that has the ball in their cup drinks. A team loses when they have has no alcohol left in their cup. She says that there was vodka was at Alex's house and that they brought wine with them. She testified that they did not play many games of beer pong, maybe two or three games. When they ran out of beer they used wine in the cups and both teams won at least one game meaning both teams had to drink all of the alcohol in the losing team's six cups at least once. Vodka was not used in the game. At the end of the game both sides drink anyway regardless of which team wins or loses. She agreed that she drank too much that night and that she was drunk. She does not remember who won the last game.
24She thought they stopped playing around 145 or 2 AM. She didn't check the time. It was late. Once the game over, she and Mr. Pyrek left to go to McDonalds. She said that there was nothing to do after the game so they went to McDonalds.
25For reasons explained under Issue 3, I have concluded that Ms. Kather is wrong on the 1:45 to 2 AM point above. I have concluded that the last beer pong game ended at approximately 3:15 AM and that Ms. Kather and Mr. Pyrek departed for McDonalds right away. The accident occurred about two minutes after they left at approximately 3:20 AM to 3:30 AM.
26Ms. Kather agrees that she was drunk when they left. She did not have a driver's licence but if she did she said she could not have driven. She thought Michael was more sober. He had no difficulty walking and no slurred speech or any difficulty getting into the car.
27Mr. Pyrek was driving. They were planning to go to McDonalds at the Meadowvale Town Center which is off of Winston Churchill Boulevard north of Battleford Road. She had gone to high school in the area and so she knew the area including Edenwood Drive. Immediately, after they left Mr. Abramov's house, there is a stop sign at Saracen Court where it meets Edenwood Drive and there was no issue or problem with Mr. Pyrek's driving up until that point. The same was true from that point until the stop sign at Edenwood Drive and Tours Road.
28As they drove up Edenwood Drive north of Tours Road towards Battleford Road they were speeding. She thought it was a 40 km zone. He was going fast the whole time. She thought they were going 80 to 100 km an hour and she said she "freaked out". She yelled at Mr. Pyrek twice to slow down. He responded "don't worry". They hit a turn in the road and he lost control of the vehicle and hit a tree. She thought that they were in the car a total of about two minutes before the accident.
29In cross-examination, it was suggested to her that the car could have been going 60 km/h and she agreed it could have been. When asked if it could have been 50 km/h she said she did not know. She also agreed that it could have been a 50 km/h limit rather than 40 km/h which she had testified to in chief. In re-examination, she was asked if it felt that the car was going faster than 50 km/h and she said yes it felt a lot faster. With respect to the speed, she did not look at the speedometer but she said that it felt fast. Other than the speeding she testified that there was nothing abnormal about Mr. Pyrek's driving.
30The last thing she remembered was turning the corner before the accident. She doesn't remember the actual collision. She said she blacked out. She saw the firefighters breaking the windows. After the accident, while they were still in the car, Mr. Pyrek said to her that he had "fucked up".
31She acknowledged that she would not want to get in a vehicle with someone who was drunk driving the vehicle. She was asked why she would get in a vehicle with a driver who had been drinking. She said she did not see Mr. Pyrek with a drink for a while before they got in the car and he looked fine to her.
32She remembers being in the ambulance and being at the hospital. She woke up to a police officer questioning her. She broke her wrist; hurt her knee/leg and had whiplash. She was released from the hospital about noon on September 23, 2012. She was aware that Mr. Pyrek had been taken to Sunnybrook Hospital. Since the date of the accident she has only seen Mr. Pyrek at court attendances.
Constable Andrew Garvin
33Constable Garvin has been with Peel Regional Police for just over 10 years. He was on general patrol in uniform on September 23, 2012. He shifted started at 6 PM or 7 PM on September 22. His shift is for 12 hours.
34At 3:32 AM on September 23, 2012 he received a call over the police radio to attend at 6572 Edenwood Drive in Mississauga. He was told there had been a single motor vehicle collision and that there were two parties in the car. It took him eight minutes to get to the scene of the accident arriving at 3:40 AM. He arrived at about the same time as Constable Baillargeon. The fire department was already on the scene.
35A black vehicle had hit a tree. There was very serious damage. There were two people still in the vehicle. The fire department was busy trying to get them out. There was some debris on the road. The vehicle was completely destroyed. It was wrapped around a tree. Of all the accidents he has seen in his career, this was the worst one he had seen in terms of damage.
36The weather that day was dry. The lighting in the area was comprised of typical residential streetlights. It was dark and there were a number of trees. There is a curve to the south of where the accident happened.
37Constable Baillegon stayed with the female passenger (later identified as Ms. Kather) and he went with the male passenger (later identified as Mr. Pyrek) and followed him in the ambulance.
38Mr. Pyrek was taken out of the car at about 4:35 AM. He was on a stretcher. He did not get very close to him. He followed the ambulance to the Credit Valley Hospital. It left the scene at 4:40 AM and arrived at Credit Valley Hospital at 4:46 AM.
39He has worked the Edenwood Drive area before. It is a residential area which sees a lot of traffic. Some people use it as an alternative to Winston Churchill Boulevard. He does not think the speed limit is marked there which would mean it is 50 km/h. There are no speed bumps.
40There was no accident reconstruction done nor were any pictures taken of the scene.
41Mr. Pyrek was brought into the resuscitation room at Credit Valley Hospital. Constable Garvin waited while Mr. Pyrek received medical attention. It was not a big room. He said that there were two beds in it. There was no other officer in the resuscitation room. There was medical personnel.
42He said he did not give any instructions or requests to any medical personnel to take blood.
43He testified that blood was taken from Mr. Pyrek in the resuscitation room at 5 AM. He says he was there when it taken. He said the nurse who took it was Ms. Susan St. Ours. He says that he got her name from her. He said he saw her take the blood. He did not know how many vials of blood were taken nor did he follow where the blood went. He also could not comment on any labeling of the blood.
44He spoke to Mr. Pyrek at 5:13 AM. Mr. Pyrek was lying down. He was conscious but in some discomfort. He appeared to know what was going on. He was fairly alert. He was lying on a table in the resuscitation room. Constable Garvin spoke to him at Mr. Pyrek's head. His eyes were red and watery and Constable Garvin smelled alcohol on his breath. He said there was a sweet smell of alcohol which was recognizable to him. His speech was a little slurred. He formed the opinion that Mr. Pyrek was impaired by alcohol and had been operating a motor vehicle. He arrested him at 5:15 AM. At this point in time he was only charged with impaired operation and Mr. Pyrek responded that he understood. He read him his rights to counsel and a caution. The right to counsel was given at 5:16 AM. Mr. Pyrek said that he did not wish to call a lawyer right then. At 5:17 AM Constable Garvin made a breath demand which Mr. Pyrek seemed to understand.
45Constable Garvin waited for the breath technician, Constable Faulkner, to arrive. After Constable Faulkner arrived he told him of the details of the incident and the investigation. Constable Garvin was at the hospital until 7:21 AM on September 23, 2012.
46He acknowledged that the red eyes which Mr. Pyrek had could have been from an airbag deploying. He was asked if there could have been other sources of the smell of alcohol but he said it appeared that the alcohol was coming from his breath. As to the slurring of words, he thinks that was when Mr. Pyrek told him that he had been at a party. It was very brief conversation. He doesn't know how Mr. Pyrek normally speaks. He did think Mr. Pyrek was somebody who was under the influence of alcohol and that that was the cause of the slurring.
47It was suggested to Constable Garvin that he had not actually seen the drawing of the blood at 5 AM. He denied this and said that he had seen it and that he had got the name of the nurse directly from her. He was examined and cross-examined at some length on this point including on his notes. He had a note that said 4:40 AM "following ambulance". He then had a note that said 4:46 AM-"10 -7 at the hospital", meaning they arrived at the hospital. He then had a note that said 5 AM blood drawn. He then had some detailed narrative notes afterwards. He testified that the first two notes namely the reference to 4:40 AM and 4:46 AM were made while he was at the hospital by referring to his police computer. He said that the 5 AM note referring to blood being drawn was made at the time at the hospital. The other narrative notes were made when he returned to the station after 7:21 AM.
48He said he knew about the importance of blood and that was why he made the notes that he did.
49For reasons set out below under Issue 1, I have determined that Constable Garvin did witness the drawing of the blood from Mr. Pyrek at approximately 5 AM.
50He liaised with Constable Faulkner in the days after the accident to talk about the need to obtain a warrant for the blood. He left it to Constable Faulkner to get the warrant for the blood. It was his understanding that that was the responsibility of the breath technician.
51He said he tried to contact Nurse St. Ours. He served a subpoena on her prior to the last trial date scheduled for November 2014. She told him that she was leaving for England and was not returning. He told the Crown Attorney about this.
Constable Michael Baillargeon
52Constable Baillargeon has been a member of the Peel Regional Police since 2008. He was on duty on September 23, 2012. He was working a 12 hour shift starting at 7 PM on September 22, 2012.
53At 3:33 AM on September 23, 2012, he received a radio call requiring that he attend at 6572 Edenwood Drive in Mississauga. He was advised there had been a motor vehicle accident. He arrived at the scene of the accident at 3:40 AM. He arrived on the scene about the same time as Constable Garvin. The fire and ambulance arrived soon after. He saw a Honda Civic which was dark in colour wrapped around a tree. His perspective on the collision was that he thought there may well be a fatal injury as a result of the accident. He could hear a male and a female voice. There were cries for help. The fire Department was needed to extricate them.
54The car was wrapped around the tree. The front was almost touching the back of the car. At 3:55 AM, the female passenger was extracted from the vehicle. She was placed on a stretcher. Constable Baillargeon was able to speak to her briefly and she identified herself as Ms. Carlee Kather. He asked her if she remembered the accident and she told him that she did not.
55Constable Baillargeon knows Edenwood Drive but he doesn't drive it regularly. He said he thought it was a 50 km zone. He had not been involved with any other accidents on that road. He believed there was a curve to the south of where the accident happened.
56Constable Baillargeon had no interaction with Mr. Pyrek either at the scene of the accident or at the hospital.
57At 4:03 AM, he followed the ambulance which had Ms. Kather in it. It arrived at Credit Valley hospital at 4:08 AM. When they arrived at the hospital, Ms. Kather was brought to a resuscitation room. He learned that she had a broken wrist.
58He did not recall Ms. Kather's level of intoxication or smelling alcohol coming from the vehicle.
The Hospital Witnesses
59Mr. Pyrek was brought to Credit Valley Hospital on September 23, 2012. Credit Valley Hospital is now known as Trillium Health Partners. I will simply refer to the hospital as Credit Valley Hospital. Blood was drawn from Mr. Pyrek while he was at Credit Valley Hospital. One doctor and three witnesses who work as medical lab technologists at Credit Valley Hospital testified at trial.
(i) Dr. Rhonda Taylor
60Dr. Rhonda Taylor has been a doctor for 14 years during which time she has always worked at Credit Valley Hospital. She was working on September 23, 2012. She has reviewed the chart for Mr. Pyrek from that day. She did not remember Mr. Pyrek but when she read the chart it refreshed her memory. In particular, she noted from the chart she reviewed that she had put a cast on Mr. Pyrek's leg before doing an x-ray and that was not a common thing to do. However, Mr. Pyrek was in a lot of pain and that was why she did it.
61Her records indicate that she first attended on Mr. Pyrek at 4:56 AM on September 23, 2012. Her notes indicate that Mr. Pyrek was alert and normal. He was in a lot of pain and she ordered morphine for him right away.
62Mr. Pyrek was in resuscitation room number 1. It is 12 to 15 feet. There is one bed only in that room. The passenger from the car (Ms. Kather) could not have been in the same room unless she was able to stand up. There are five resuscitation rooms. Resuscitation room number 2 is right beside resuscitation room number 1 but they are divided by a concrete wall. She could not recall if she was involved in the treatment of Ms. Kather but she was shown medical records which confirm that she was. She was the only doctor on duty until 7 AM.
63She ordered blood in this case as part of her standard practice. She was not ordered or asked to take blood by the police. She said the practice was for her to make the request by filling out a form and that the unit clerk then enters the request into the computer and prints out labels with a barcode relating to each patient. The nurse then draws the blood. Once the lab analyzes the blood, the results go into the Meditech computer system and Dr. Taylor can look at the results by looking into that computer system.
64Dr. Taylor was asked if in her experience there had ever been any issues at Credit Valley Hospital with the mixing up of patient blood and she said she had never heard of such a thing happening. She said it could happen but it had not happened in her experience. She said that sometimes there could be errors with other bodily fluids like urine where it is left to the patient to provide the sample and label the container but that was not the case with blood.
65Dr. Taylor testified that when blood is drawn it is labeled as a matter of practice and then put into the tube delivery system. She does not know how many vials of blood there were in this case. She wanted the blood tested for the presence of alcohol as that could affect her medical treatment. It was standard for her to seek that sort of the test.
66She does not draw blood herself. There is a nurse assigned to the room and she draws the blood she does not know which nurse was involved nor did she see the blood being drawn. She was asked if it would be unusual for the police officer to be in the room while blood was being drawn and she said it would not be unusual. The police might be present when the blood was drawn. Privacy is important to Dr. Taylor but she doesn't know what the nurses might have done when they were drawing blood.
67She said she dealt with police officers from time to time over her 14 years of medical practice. She does not have the police present when she is treating a patient. Ordinarily the police wait outside.
68She doesn't remember any conversations with the police that day. She doesn't remember being asked about whether Mr. Pyrek could give a breath sample. She said it would be important to note that and there was no note of it but she seemed to allow for the possibility that there might not be a note of it. She hoped there would be.
69She returned to see Mr. Pyrek at 8:40 AM. A nurse had asked that Mr. Pyrek be reassessed as his abdomen was distending. There was a concern about a possible abdominal injury and this led to him being transferred to Sunnybrook.
(ii) Ms. Sadaf Khan
70Ms. Khan was the first of three medical technologists who dealt with Mr. Pyrek's blood to testify. I note that neither party sought to tender any evidence of the results of any hospital blood testing done at Credit Valley Hospital on Mr. Pyrek's blood. The relevance of the medical technologists' evidence appeared to be limited largely to questions of continuity with respect to Mr. Pyrek's blood.
71Ms. Khan testified that she had been a medical lab technologist at Credit Valley Hospital for total of 12 years. She is involved in conducting tests on bodily fluids including serum, blood and urine. Samples are collected at the bedside and placed in a bag and sent through a pneumatic tube system at the hospital. The files are labeled at the time of collection. They receive a time when they are received by the medical lab.
72She was provided with a vial of blood labeled with Mr. Pyrek's name. She did not receive the vial directly from the pneumatic tube system. The medical lab receiving room staff gave it to her in a rack. She placed a sample in a centrifuge and analyze it for alcohol content.
73Once they get the results they put it into the Meditech computer system. She thinks that the sample she received with respect to Michael Pyrek was a stat sample meaning it was to be given priority and analyzed within an hour.
74She was asked if she recalled whether there were any issues of problems with the labeling concerning Mr. Pyrek's blood samples and she said she did not remember any. If there had been any problems she would have made a note of it and he would need to be reported to "risk" which is another department within the hospital. She has heard of mislabeling at Credit Valley Hospital but she said she would have heard of it if blood had been mislabeled in this case.
75A blood vial is labeled with a patient's first name, last name and birthdate as well as a barcode. She did not remember if there were multiple vials for Mr. Pyrek. She had one vial. She did not know the barcode on the vial.
76She did not remember any dealings with the police while at the hospital. She did deal with them later in connection with the giving of a statement. She gave a statement to police on December 5, 2012. It was based on her recollection of what had happened.
77After she uses a vial, it is filed away. Blood samples are normally kept for three days unless police ask for it.
(iii) Regina Edmunds
78She has been a medical technologist since 2005 and has worked in that capacity at Credit Valley Hospital since 2007. She does the hematology part of blood analysis.
79She received some blood labeled with Mr. Pyrek's name on September 23, 2012. She followed procedure in connection with that blood. She did not analyze it for alcohol content. That is done by the chemistry section of the medical technology group.
80She said that the receipt of the blood samples was normal with respect to Mr. Pyrek. There were no red flags with respect to Mr. Pyrek's blood.
81As a matter of general practice blood vials are labeled with a barcode which is a unique identifier as well as the first and last name of the person.
82Once the blood sample is used they put it in a rack and the sample is kept for five days.
83She has heard of getting the wrong person's blood. There was nothing to suggest that that happened in this case.
84She did not talk to police on September 23, 2012. She gave a statement but she never spoke to police about the statement.
(iv) Amanjot Tathgur
85Ms. Amanjot Tathgur was the third medical technologist to testify. She has worked as a medical technologist for 15 years with the last seven years at Credit Valley Hospital. She works at the receiving desk in the medical lab at the hospital. She is the first person to receive blood samples through the pneumatic tube system. Blood can also be delivered to the lab by hand by other hospital staff and she is also the first to receive that blood. As a matter of practice she says that when the blood is received by the lab, the vials are never opened by her. She testified that she was the first person in the lab to receive Mr. Pyrek's blood. She had no recollection of any dealings with police on September 23, 2012 concerning Mr. Pyrek's blood or otherwise.
86Shortly after giving the above testimony and while still giving her evidence during her examination in chief, it became apparent that Ms. Tathgur had no independent recollection of receiving Mr. Pyrek's blood or of any of the events concerning it. She testified that in December 2012 she was asked by police to give a statement which she did by reviewing medical records which she had access to which are not otherwise in evidence. She testified that at the time she prepared her statement in December 2012 she had no independent recollection of the events concerning Mr. Pyrek's blood at that time either. There are simply too many blood transactions with which she has been involved to remember this one.
87She prepared a statement looking at other records. By looking at those records she said she is confident that she received the blood in this case.
88She has heard of issues with wrong labels. If there was an error they would need to report that to the risk system. There were no red flags with Mr. Pyrek's blood.
89The Crown sought to introduce her statement to police in December 2012 as evidence. The statement covered other issues including who drew the blood and what time it was received by the lab. The defence cross-examined her on this issue. Her statement was marked for identification only and was to be the subject of my ruling as to admissibility at the end of the trial. I do not consider that the statement is admissible in evidence and my reasons for this conclusion are set out below in my analysis of issue 1. As I will explain further below, I do not consider that the absence of her statement affects the issue of continuity in any event.
90She does not remember the police officer speaking to her about this case on September 23. She does not remember the police coming to her and putting a seal on the blood. She says it does not happen often. She says that if they asked to put a seal on she would consider that she had no choice but to do it and that she would have done it herself.
91The blood samples would have been destroyed after five days if police had not asked for them.
Constable Kevin Faulkner
92Constable Faulkner has been with Peel Regional Police in September 2003. September 23, 2012 was his last shift working with the regional breath unit. The shift he worked that day was 6 AM to 4 PM. He was contacted at 5:43 AM on September 23, before his shift began, indicating that a breath technician was needed at Credit Valley Hospital. He arrived at Credit Valley Hospital at 6:25 AM.
93At 6:27 AM, he attended at the resuscitation room in the emergency room department area. Mr. Pyrek was in the resuscitation room. At 6:30 AM, he spoke to the officer in charge. Constable Garvin spoke to him and told him of his reasonable and probable grounds. He was informed by Constable Garvin that a nurse had attended at 5 AM and that blood had been taken. The blood had been sent to the lab in a vacuum container system.
94When he first saw Constable Garvin at the hospital he was either just outside the resuscitation room or just inside the door. Constable Garvin was only about 5 to 10 feet from Mr. Pyrek.
95At 6:39 AM, Constable Faulkner entered the resuscitation room and spoke to Mr. Pyrek. He was lying on the stretcher with a neck brace. He walked right up to him. There was no one else with him and no one to ask permission from. He spoke to Mr. Pyrek at 6:41 AM. He detected the odour of alcohol on his breath. His eyes were bloodshot. Mr. Pyrek thought his leg was broken. He was in quite a bit of pain. Constable Faulkner was standing quite close to him. He was standing right next to Mr. Pyrek's head.
96He did not detect any slurred speech from Mr. Pyrek. As concerns the bloodshot eyes, he acknowledged that it could have come from allergies.
97He told Mr. Pyrek that he would be charged with impaired operation of a motor vehicle. It is his standard practice in circumstances like these to read rights to counsel and a caution and he did that in this case and Mr Pyrek understood both. A breath demand was made at 6:46 AM.
98He said it is his standard practice to attempt to seal one vial of blood if blood is taken. He said he simply thinks it is prudent to get the blood if it is available. He believes that blood samples are the best evidence.
99At 6:55 AM, knowing that blood had been taken, he attended at the hospital lab. He spoke to one of the lab technicians, Ms. Amanjot Tathgur. She confirmed to him that she had 6 vials of blood. He asked and received permission to place a CFS seal on one of the vials of the blood which he did. The seal had the number 2L58160 on it. He said he always explains, and he did in this case, that if they need to break the seal to use the blood for medical purposes they can do so. He said that they will have to explain what test they did if the blood is needed.
100In this case he placed the seal on a vial himself. He said it was not possible that the medical technologist had placed the seal on the vial. The vial had Mr. Pyrek name on it. He put the seal over the top of the vial. He said it is not possible to take blood out of the vial without breaking the seal. Once the seal is on the blood vial it cannot be touched without it being detected.
101He said that years ago in other cases he used to try to explain to medical technologists about the possibility of him obtaining a warrant for the blood but he doesn't "bother" anymore because whenever he tried to explain it was not well understood so he does not get into the issue of discussing a warrant anymore.
102At 7:10 AM, he returned to just outside the resuscitation room. He said that he was aware that the passenger in the vehicle (Ms. Kather) was on the other side of the divider in the room. He spoke to her to see what had happened in the accident. He learned that she likely had a broken wrist. After speaking to her he went and advised Pyrek that he would be charged with dangerous operation of a motor vehicle causing bodily harm. He then read him his rights to counsel again at 7:27 AM.
103He had based his advice to Mr. Pyrek that he would be charged with dangerous operation of a motor vehicle causing bodily harm on his conversation with Ms. Kather. The factors that led him to tell Mr. Pyrek that he would be charged with this offence were the fact of the accident (including losing control on the curve in a residential area), the speeding, the fact that Ms. Kather had told him to slow down and the consumption of alcohol by Mr. Pyrek. He considered that Ms. Kather showed obvious signs of intoxication. In cross-examination, he acknowledged that he was essentially taking a statement from "a drunk". Having said that, he thought her statement made sense and he felt that she was being very candid with him about her own intoxication.
104At 7:29 AM, he then set up the Intoxilyzer 8000 C and ran the usual tests to ensure that it was in good working order which it was. At 8:22 AM, Mr. Pyrek gave a breath sample which registered 51 mg of alcohol in 100 mL of blood.
105At 8:39 AM, while he was waiting to take the second breath sample, a nurse and Dr. Taylor entered the room to check on Mr. Pyrek. Constable Faulkner was informed that as a result of the deterioration in the condition of Mr. Pyrek, a decision was made to transport him to Sunnybrook Hospital. As a result, no second breath sample was sought or obtained. He told Mr. Pyrek before he was transported to Sunnybrook that he would be facing charges.
106He had a discussion later with Constable Garvin and a decision was made to prepare a warrant to obtain the blood vial that had been sealed. He had done similar warrant applications before so the responsibility fell to him to prepare the warrant. In the two weeks following September 23, 2012 Constable Faulkner was on training as he was switching positions within the police force. Also, some notes from Constable Garvin got lost in transit to Constable Faulkner for a period of time. These two factors were given as his reasons for the delay in seeking to obtain the warrant with respect to the blood.
107On October 21, 2012, Constable Garvin spoke to Maninder Singh at Credit Valley Hospital. As a result, Constable Faulkner was able to confirm that the vial with seal number 2L58160 was still at the medical laboratory at Credit Valley Hospital. On October 22, 2012, he completed the materials necessary to seek to obtain a search warrant for Mr. Pyrek's blood and he took the warrant application to a Justice of the Peace office where it was signed by a Justice of the Peace.
108He seized the blood pursuant to the warrant on October 22, 2012. The seal was fully intact. He said it is not possible to break the seal without it being detected. His main purpose of doing the seal was for continuity. He took the blood sample in a biohazard bag within another bag to the CFS and he gave it to Ms. Melanie Parchment at the CFS. He does not know who handled it after he gave it to the CFS. He does not know how it was stored at CFS.
Toxicology Evidence: Expert Witness Ms. Inger Bugyra
109The Crown called Ms. Inger Bugyra who testified at trial as an expert witness. Ms. Bugyra is a toxicologist and has been with the CFS since November 1998. The majority of her work at CFS is with respect to writing reports as a toxicologist.
110It was agreed by the Crown and the defence that Ms. Bugyra was qualified to give expert testimony in the following areas (i) the ingestion, absorption, and elimination of alcohol in the human body; (ii) calculations in relation to blood alcohol concentration in the human body; (iii) the Intoxilyzer 8000 C; and (iv) the effects of alcohol on the human body when the person is operating a motor vehicle. I note that the defence initially objected to Ms. Bugyra being qualified as an expert in the "effects of alcohol on the human body" area but later agreed to it. The Court accepted that Ms. Bugyra was qualified to give expert testimony in the foregoing four areas.
111Ms. Bugyra prepared three reports in this matter each of which was marked as an exhibit at trial. She gave oral evidence with respect to those three reports. The three reports were dated November 1, 2012; November 15, 2012; and November 8, 2013.
The November 1, 2012 Report
112The report of November 1, 2012 found a serum ethanol concentration in the blood sample relating to Mr. Pyrek of 124 mg in 100 mL of the blood. This needs to be converted to a blood alcohol concentration using a factor of 1.16. If one divides 124 mg of ethanol in 100 mL of blood by 1.16, one obtains a blood-alcohol reading of 107 mg of alcohol in 100 mL of blood.
The November 15, 2012 Report
113The report of November 15, 2012 provided a read back opinion using the blood-alcohol concentration from the blood sample testing reflected in the November 1, 2012 report. Ms. Bugyra projected a blood-alcohol concentration in Mr. Pyrek's blood between 3:25 AM and 3:32 AM on September 23, 2012 of 107 to 137 mg of alcohol in 100 mL of blood. If the operative time is changed to a range from 3:00 AM to 3:32 AM, then the blood-alcohol concentration would range from 107 to 147 mg of alcohol in 100 mL of blood. This includes the four assumptions discussed further below plus an assumption that the blood was drawn at approximately 5 AM. She acknowledged in cross-examination that if the time of drawing the blood changes then that has an effect on the read back. The read back cannot be done without knowing when the blood was taken.
114Ms. Bugyra testified that there is a margin of error with respect to measuring ethanol in blood reflected in November 1, 2012 report. The reading with respect to Mr. Pyrek's blood of 124 mg of alcohol in 100 mL of blood in the November 1, 2012 report could be as low as 118 or as high as 130. This would change the read back range in the November 15, 2012 report to 102 mg to 144 mg of alcohol in 100 mL of blood during the 3:25 AM to 3:32 AM timeframe.
The November 8, 2013 Report
115The report dated November 8, 2013 provides an opinion with respect to the projected blood alcohol concentration in Mr. Pyrek's blood between 3:25 AM and 3:32 AM and it is based on the single breath sample obtained using the Intoxilyzer 8000 C in this case. The reading from the Intoxilyzer 8000 C was 51 mg of alcohol in 100 mL of blood at 8:22 AM on September 23, 2012. Ms. Bugyra's opinion was that Mr. Pyrek's blood alcohol concentration was between 75 and 150 mg of alcohol in 100 mL of blood between approximately 3:25 AM and 3:32 AM on September 23, 2012.
116To arrive at this opinion she used the proposed time of the incident; the Intoxilyzer 8000C test record card; and a brief Crown synopsis. Her opinion is independent of the height, weight and age of the individual.
117She testified that this was the third time during her career that she given an opinion based on a single breath sample. She has done more than 1000 toxicology reports in her career.
118She indicated that if the operative time was from 2:45 AM to 3:32 AM then her opinion would be that the blood alcohol range would be 75 to 160 mg of alcohol in 100 mL of blood. If the accident happened at 3:40 AM, it would not change anything.
119She acknowledged in cross-examination that there can be some variability with the accuracy of the Intoxilyzer 8000 C. She said it would not overestimate the blood alcohol content by more than 10%. It can underestimate it by more than that. Therefore the 51 mg of alcohol per 100 milliliters of blood could be as low as 46 mg of alcohol in 100 mL of blood. This would lead to a read back value at the operative time of 70 mg of alcohol in 100 mL of blood at the lower end.
120She was asked why in relation to the Intoxilyzer 8000 C two breath samples are normally taken. She indicated that if you can reproduce the measurement by taking it twice then you have better confidence in the result. Further, by delaying the second test for 15 minutes you can rule out the possibility of mouth alcohol effect. She explained that if you only had one breath sample you can still rely on it provided the proper calibration tests are done with respect to the machine and it is operated correctly which appeared to be the case here.
The Expert's Assumptions
121The reports of November 15, 2012 and November 8, 2013 both relied on the same four assumptions which are stated in her report as follows: (i) a rate of elimination of alcohol from the blood ranging from 10 to 20 mg of alcohol in 100 mL of blood per hour; (ii) allowance for a plateau of up to two hours; (iii) no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the accident; and (iv) no consumption of alcoholic beverages after the incident and before the breath test.
122Ms. Bugyra was examined and cross-examined on these four assumptions and in particular on the assumption that there was no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the accident. She extended that to 20 minutes during her oral evidence for cases where there is a large quantity of alcohol consumed resulting in the fact that it takes longer for the alcohol to be absorbed into the bloodstream and to reach the peak blood alcohol level. She indicated that by no large quantities, she meant one standard drink which would be one 12 ounce beer containing 5% alcohol; one 5 ounce glass of wine contain 12% alcohol; or 1.5 ounces of liquor containing 40% alcohol. The same assumption applies whether you are using the breath reading or the blood reading.
123In re-examination she was asked by the Crown if there was a way to do the read back calculation assuming the person did have one standard drink within the 15 minutes prior to the operative time in the read back. She said that calculations could be done to accommodate for that but to do so she would need the weight of the individual. There was no weight of Mr. Pyrek in evidence. No further questions were asked on this issue.
124Ms. Bugyra was asked in cross-examination about continuity with respect to the blood. As concerns the CFS, it was received by CFS on October 22, 2012 by Melanie Parchment. It was processed October 24, 2012 and she received it in her hands October 26, 2012. The protocol at CFS is to put a barcode on the blood and each time it is handled it shows up. All blood at CFS is kept in the refrigerator.
Opinion on Impairment
125As indicated above, the parties agreed and the Court accepted that Ms. Bugyra was qualified to give an opinion on the effects of alcohol on the human body when the person is operating a motor vehicle. Her reports of November 15, 2012 and November 8, 2013 both contained a paragraph which read as follows:
The operation of a motor vehicle requires the integrity of a variety of sensory, motor and intellectual faculties including divided attention, choice reaction time, judgment of speed and distance, risk assessment, vigilance and vision. The degree of impairment produced by alcohol is dependent upon BAC. Under controlled experimental conditions, impairment of divided attention tasks has been reported at BACs as low as 15 mg/100 mL. Nevertheless, based on a critical review of the relevant scientific literature (laboratory, closed course driving, crash risk assessment) it is my opinion that impairment with respect to driving becomes significant at a BAC of 50 mg/100 mL and increases from then onward. Whether impairment is apparent depends upon the complexity of the driving task. For example, the impairing effect of alcohol is marked in driving situations that are unpredictable and that require a rapid and appropriate response. Impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance.
126It was Ms. Bugyra's opinion that someone with a blood-alcohol concentration of 107 to 137 mg of alcohol in 100 mL of blood would be impaired to operate a motor vehicle. Further, as is evident from the passage above, it is her opinion that someone with a blood-alcohol concentration of 50 mg or more of alcohol in 100 mL of blood would be impaired in their ability to operate a motor vehicle. Her opinion is that regardless of a person's tolerance for alcohol, there would be impairment at the levels she has indicated.
127Ms. Bugyra has taken a number of courses in driving and impairment. She has also taken pharmacology courses at the University of Toronto. Her opinion concerning impairment is based on her academic studies and the scientific work that she has read.
128Ms. Bugyra acknowledged in cross-examination that the opinion contained in her written report was part of a standard form template apparently used by all toxicologists at the CFS. All of the toxicologists at the CFS, including Ms. Bugyra, had input into the paragraph and had to agree with it before using it in their reports. Ms. Bugyra apparently uses it in all of her reports.
129She acknowledged that not all toxicologists would agree with her opinion regarding impairment and driving.
130By reason of the conclusion explained below under Issue 3 as to the failure of the Crown to prove all of the assumptions in the toxicologist's reports, is not necessary for me to determine whether Ms. Bugyra is correct when she says that all persons with a blood-alcohol concentration of 50 mg or more of alcohol in 100 mL of blood would necessarily be impaired to operate a motor vehicle. I make no judgment about the correctness of this evidence one way or the other.
Alex Abramov
131Mr. Abramov is currently 27 years old. He was friends with Mr. Pyrek both before and after the accident. He had known him for one and a half to two years as of the time of the accident. Prior to the accident, they had been on a spring break trip together which Mr. Abramov said was an indication of their close friendship. They would see each other a couple of times a month.
132Mr. Abramov indicated that the get together on September 22, 2012 was at his house. He said that he had looked at text messages (which were not before the Court) to help him reconstruct the evening. He said that Mr. Pyrek, Ms. Kather and Sierra came over around 12:50 to 12:55 AM. He thought that both Ms. Cather and Sierra were intoxicated and he thought that Ms. Cather was more intoxicated.
133My overall assessment of Mr. Abramov is that he gave his evidence in a manner that he thought would be helpful to Mr. Pyrek rather than in a manner that reflected what he actually remembered. For example, he was asked in chief if he had been drinking before they arrived to which she said no except perhaps he may have been "sipping a beer". Then he was asked why he did not go and pick them up Ms. Kather and Sierra instead of Mr. Pyrek doing the driving and he said that he had in fact been "sipping a beer". It is a minor point but it and other points like it occurred throughout his evidence. To give another example, he gave evidence about the type of beer which Mr. Pyrek showed up with. Clearly he did not remember but he attempted to suggest that he did. Overall, I had the very clear impression that his testimony was based on an amalgamation of things he thought would be helpful to Mr. Pyrek, things he had discussed with others including Ms. Kather and Sierra, things he had seen in text messages which were not before the court and his general perspective on what he thinks would have happened. Having said that, I do not think that Mr. Abramov was dishonest witness. I simply consider that at times he was attempting to reconstruct what had occurred rather than give his actual memory and the reconstruction tended to be skewed in favour of what he thought would assist Mr. Pyrek.
134Where Mr. Abramov's evidence differs from Ms. Kather's evidence as concerns the events at the party, I prefer Ms. Kather's evidence. She was very candid in her approach to her evidence including with respect to her own intoxication. I thought she was fair and careful in her evidence. Having said that, while I thought she was credible not everything in her evidence was necessarily reliable due to the passage of time and her intoxication although I believe her recollection of events is largely accurate.
135I think that it is clear that a number of important points do flow from Mr. Abramov's evidence. There is no doubt that the game of beer pong was played. Mr. Abramov thought they played 3 games. Ms. Kather thought it was 2 to 3 games and I don't consider that it matters one way or the other whether they played 2 or 3 games.
136Mr. Abramov seemed to be more of an authority on the beer pong game and I accept that he was. He had a special cloth to cover his dining room table where the game was played indicating to me that he played the game often and was "good" at it.
137Mr. Abramov explained that there are 6 cups per side. Each cup is filled up about a third full. You need enough liquid in the cup to keep it from falling over but you don't want too much in each cup. They used one beer for three cups meaning each cup has about 4 ounces in it. Each game lasts about 15 to 20 minutes. When one team sinks the ball in the other team's cup, the team that has the ball in their cup drinks everything in that cup and they do so very quickly. Each person on the team takes turn drinking so that each member of a losing team would drink at least approximately 3 cups. He said the losing team is supposed to drink any alcohol left in the winning team's cups. They started the game with beer but ran out of beer and switched to wine. Each person on a team takes turns drinking so a member of a losing team would drink 3 cups each of the beer or wine.
138While I largely accept Mr. Abramov's description of the game I don't necessarily accept that Mr. Pyrek's team lost the last game which Mr. Abramov said they did. They may have. I don't think either Ms. Kather or Mr. Abramov could say for sure. I also don't accept that the losing team always drinks all of their own cups plus the other team's cups. Clearly the losing team has to drink all of their own cups but as Ms. Kather indicated at the end of the game everyone just drinks whatever is remaining and I think this is a fair characterization of how the game is played.
139I also accept Mr. Abramov's evidence that he and Sierra were probably the better team given Mr. Abramov's history of playing the game at his house. It is a reasonable inference based on this fact as well as the fact that Ms. Kather was intoxicated by her own admission that Mr. Pyrek and Ms. Kather were called upon to drink more during the beer pong game than Mr. Abramov and Sierra. Regardless of who won the last game or whether the rules of the game were followed precisely, there is no doubt that Mr. Pyrek was drinking in the 15 to 20 minutes prior to his departure for McDonalds and that he likely consumed at least the equivalent of one beer or one glass of wine during that time and that is probably an underestimation.
140I also accept the evidence of Mr. Abramov, which was consistent with the evidence of Ms. Kather, that Mr. Pyrek and Ms. Kather left to go to McDonalds almost immediately after the last game. Ms. Kather testified that once the last game was over, they went to McDonalds. She also testified that she did not see a drink in Mr. Pyrek's hand in the while before they left. I don't accept this last point from Ms. Kather. Clearly they were playing beer pong right up until they left.
141Mr. Abramov gave evidence about the roadway on Edenwood Drive and said that it was "insane" that there was a 50 km limit. It was clearly Mr. Abramov' s view that the limit should have been less than 50 km/hr as a 50 km/hr limit was simply asking for trouble. I don't accept that it was "insane" to have a 50 km/hr limit on Edenwood Drive.
142I do accept Mr. Abramov's evidence that he and Mr. Pyrek had driven that same section of Edenwood Drive dozens of times including with Mr. Pyrek having driven it himself before many times. It was the main route they took when coming or going to Mr. Abramov's house. They took it to avoid that "stupid light" at Tours Road and Winston Churchill Boulevard.
ISSUES
143The following issues arise for decision in this case:
Issue 1 - Has the Crown proved that Mr. Pyrek's blood was taken at 5 AM and has the Crown proved continuity/chain of custody with respect to the blood?
Issue 2 – Assuming the answer to Issue 1 is in the affirmative, was there a s. 8 Charter violation in respect of the blood samples? If so, should the evidence associated with the blood samples be excluded under s. 24(2) of the Charter?
Issue 3 – Has the Crown proved the underlying assumptions in the Toxicologist's reports?
Issue 4– Considering the answers to the above questions, has the Crown proved beyond a reasonable doubt that Mr. Pyrek did operate a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code?
Issue 5 - Has the Crown proved beyond a reasonable doubt that Mr. Pyrek did operate a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(a) of the Code?
Issue 6 - Has the Crown proved beyond a reasonable doubt that Mr. Pyrek did operate a motor vehicle on a street or road or highway or public place in a manner that was dangerous to the public contrary to section 249(1)(a) of the Code?
144I will analyze each issue in turn.
Issue 1 - Has the Crown proved that Mr. Pyrek's blood was taken at 5 AM and has the Crown proved continuity/chain of custody with respect to the blood?
145As indicated in the recitation of the facts above, the expert witness Ms. Bugyra testified that she prepared a report dated November 1, 2012 which analyzed Mr. Pyrek's blood. She found that it contained a blood-alcohol concentration of 107 mg of alcohol in 100 mL of blood at the time of the sample collection. The continuity issue seeks to undermine the reliability of this opinion. If there is a continuity problem with Mr. Pyrek's blood then there must, by necessity, be a problem with the opinion of Bugyra in her November 15, 2012 report that Mr. Pyrek's blood alcohol concentration was 107 to 137 mg of alcohol in 100 mL of blood between 3:25 AM and 3:32 AM on September 23, 2012.
146It is the defence's submission that "continuity" of the blood allegedly taken from Mr. Pyrek has not been established. By "continuity" the defence means that it has not been established that the blood drawn from Mr. Pyrek allegedly at 5 AM is the same blood that was tested by the CFS. Further, the defence submits that the Crown has not proved that the blood was not mislabeled or tampered with or contaminated with in some fashion. Finally, the defence submits as part of the continuity argument that it has not been established that the blood was drawn at approximately 5 AM which was one of the assumptions made by the toxicologist.
147I am satisfied that it has been established on the evidence that the blood was taken from Mr. Pyrek at approximately 5 AM and that continuity with respect to that blood has been established. My reasons for these two conclusions are set out below.
148The defence's position is that Constable Garvin, contrary to his testimony, did not actually see the drawing of the blood and they point out that the nurse who took the blood did not testify. Further, the defence submits that, even if Constable Garvin did see the drawing of the blood at 5 AM, the continuity of that blood has not been established particularly between the time that the blood was drawn and the time that Constable Faulkner placed the seal on it at 6:55 AM. Included in this point is the submission that the medical technologist Amanjot Tathgur, who allegedly received the blood in the lab, had no recollection of it and that her statement which was marked for identification is not admissible in evidence. Even if her statement is accepted as evidence, the defence submission is the same namely that we don't know what happened between the time the blood was drawn at 5 AM and the time the seal was placed on the vial by Constable Faulkner at approximately 6:55 AM on September 23, 2012.
149First, let me deal with the question of Constable Garvin and whether he saw the blood being drawn at 5 AM. He testified that he was in the room when the blood was drawn. I accept his evidence. Dr. Taylor said it would not be unusual for police to be present when the blood was drawn. She acknowledged that there might be privacy issues associated with this but she was nevertheless candid in indicating that it would not be unusual for it to happen. Constable Garvin had a note of the time that the blood was drawn at 5 AM and the name of the nurse (Susan St. Ours) and he indicated that his notes refreshed his memory and that he actually recalled seeing it happen. We know as well that he told Constable Faulkner of the blood being drawn and this was at 6:30 AM before it was determined that there was going to be a problem with the breath samples. More importantly, Constable Garvin was one of the first responders at the time of the accident and he followed the ambulance with Mr. Pyrek in it to the hospital. It makes perfect sense that he would be watching Mr. Pyrek while he was at the hospital. That was the role he was playing, amongst other things. Dr. Taylor first attended on Mr. Pyrek at 4:56 AM and she ordered the taking of blood although there was no specific evidence indicating the precise time she ordered the taking of the blood. It makes logical sense that she would do so right away as she was attempting to assess the situation with Mr. Pyrek. While it is not known how long it takes to draw blood once it is ordered, the 5 AM time for the drawing of blood makes sense in the overall chronology. I note as well that Constable Garvin spoke to Mr. Pyrek at 5:13 AM and arrested him at 5:15 AM. The point here is that Constable Garvin was in very close proximity to Mr. Pyrek while he was at the hospital and his evidence that he witnessed the drawing of the blood at 5 AM makes sense and is accepted by this Court.
150The next issue is the question of continuity. We know that the blood was drawn at 5 AM and that Constable Faulkner placed a CFS seal on one of the vials of blood at 6:55 AM. He testified that once the seal is on the vial it cannot be broken without being detected. He ultimately retrieved the vial with the seal on it on October 22, 2013 pursuant to a warrant. The seal was not broken and he took it to CFS for testing. There can be no serious question with respect to continuity from the time the seal was placed on the blood at 6:55 AM on September 23 to the time that the blood was tested at CFS. The expert toxicologist, Ms. Bugyra, testified to the fact that it was received by the CFS on October 22, 2012 and processed on October 24, 2012. She explained that the CFS puts a barcode on all blood received and all blood is kept in the refrigerator and notations are made whenever it is handled. Her report of November 1, 2012 which was marked as Exhibit 11 refers to the concept of continuity and indicates that all item transfers occurring within CFS are recorded in the laboratory information management system. It indicates that "a full continuity report from this system is available on request". I don't know if the defence ever obtained this report but there is simply no reason to doubt the continuity of the sample once it reached CFS.
151Dr. Taylor testified to the fact that she requested that blood be taken in this case and she did so for medical purposes. She said her practice and hospital practice is to make the request by filling out a form and that the unit clerk then enters the request into the computer and prints out labels with a barcode relating to each patient. The nurse then draws the blood. The fact that Constable Garvin saw the blood being drawn at 5 AM by Nurse St. Ours fits within this framework.
152Dr. Taylor testified that when blood is drawn it is labeled and then put into a pneumatic tube system and sent to the lab in the hospital. The lab conducts tests and inputs the results on the computer system which Dr. Taylor can review by simply logging into the computer system.
153Dr. Taylor testified that in her 14 years of practice at the hospital she had never been aware of any mixups with respect to patient blood. She was aware of mixups with respect to urine but indicated that that was likely due to the fact that urine is patient labeled.
154Three medical technologists employed at the hospital testified as indicated in my review of the evidence above. Ms. Sadaf Khan testified that she received a blood vial with Mr. Pyrek's name on it on September 23, 2012. She ran certain tests on one vial of blood and after it is used the vial is filed away. She received the vial of blood she used from the medical lab reception personnel. She says that all blood is labeled with the first and last name of the patient, a bar code and birthdate. Ms. Regina Edmunds also testified that she received blood labeled with Mr. Pyrek's name on September 23, 2012 and she performed different tests on it. She said that the receipt of the blood samples was normal with respect to Mr. Pyrek.
155Both Ms. Khan and Ms. Edmunds were aware of mislabeling problems involving blood in other cases but said they were not aware of any problem in the case of Mr. Pyrek's blood. Ms. Khan specifically said that if there had been a problem with the labelling of the blood, she would have been advised of it and there was no record of any such problem.
156Ms. Amanjot Tathgur was the third medical technologist to testify. She works at the receiving desk in the medical lab at the hospital. She is the first person to receive blood samples through the pneumatic tube system. Blood can also be delivered to the lab by hand by other hospital staff and she is also the first to receive that blood. As a matter of practice she says that when the blood is received by the lab, the vials are never opened by her. She testified that she was the first person in the lab to receive Mr. Pyrek's blood. She had no recollection of any dealings with police on September 23, 2012 concerning Mr. Pyrek's blood or otherwise.
157Shortly after giving the above testimony and while still giving her evidence during her examination in chief, it became apparent that Ms. Tathgur had no independent recollection of receiving Mr. Pyrek's blood or of any of the events concerning it. She testified that in December 2012 she was asked by the police for a statement which she prepared by reviewing medical records which are not otherwise in evidence. She testified that at the time she prepared her statement in December 2012 she had no independent recollection of the events concerning Mr. Pyrek's blood at that time either. She said that there are simply too many blood transactions with which she has been involved to remember this one.
158The Crown sought to have her statement which she provided to police dated December 9, 2012 introduced as evidence. That was opposed by the defence. The statement itself was marked for identification and to be subject to my ruling at the end of the trial. In my view, her statement cannot be introduced into evidence. It is nothing more than a statement prepared by Ms. Tathgur based on her review of medical records which medical records themselves could very likely have been introduced into evidence as business records but were not. Her statement from December 2012 could be introduced in evidence if the requirements for past recollection recorded were satisfied. Those requirements are as follows:
Reliable record: The past recollection must have been recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available.
Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness's mind to be vivid and likely accurate.
Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.
Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded. (quoting directly from R v. Richardson, 174 O.A.C. 390 (C.A.) at para. 24)
159While the criteria in points 1, 3 and 4 may be met in this case, it seems clear to me that the requirement of point number 2 is not met in that Ms. Tathgur had no memory of the events at the time she prepared her statement in December 2012. Her statement to police in December 2012 cannot be admitted into evidence under the past recollection recorded doctrine and no other basis for admitting the statement into evidence was proposed by the Crown.
160Ms. Tathgur's evidence that she was the one to receive Mr. Pyrek's blood is also suspect given that it was apparently based on her statement which did not serve to refresh her memory and, as indicated, cannot be used for purposes of past recollection recorded. Having said that, her evidence regarding the practices at the hospital taken together with the evidence of Constable Faulkner's that he met Ms. Tathgur and put a seal on one of the vials containing Mr. Pyrek's blood in her presence all support the proposition that Ms. Tathgur was working in the medical lab reception area on September 23, 2012 and did receive Mr. Pyrek's blood vials even if Ms. Tathgur does not recall it herself.
161While it is my view that Ms. Tathgur statement is not admissible, I am still satisfied that, based on all of the admissible evidence, that the continuity of Mr. Pyrek's blood is established. In R. v. Porretta, [1995] O.J. No.2466 (Gen. Div.) leave to appeal denied [1997] O.J.No.1093 (C.A.), an argument was made that there could have been a mix up at a hospital with a patient wristband resulting in blood from some other person being tested instead of the accused's blood. Justice Eberhard dismissed the argument as follows at para. 4:
It must certainly be recognized that mix-ups do occur in a hospital setting. That the wristband for Paul Porretta could be placed on the arm of the wrong individual is possible. However, in the medical milieux, where the life and health of the individual is at stake, reliance is placed upon the identification of patients by armband. Absent some evidence that error has occurred, it is pure flight of fantasy and speculation to suggest that the individual from whom blood was drawn at the same time and place as the accused was located and wearing his hospital armband identification, is other than he.
162Further, I note that continuity with respect to a blood sample was proven in somewhat similar circumstances in R. v. Phan, [2015] O.J. No. 1627 (Sup.Ct.). In that case, an officer saw blood drawn at 3:11 AM but did not follow it to the lab. Ten minutes later, he went to the lab and sealed one of the vials. Justice Trotter found that continuity was established (see paras. 34 and 60).
163In my view, a similar sentiment to the view expressed by Justice Eberhard in Porretta applies to the defence argument on continuity in this case. The evidence establishes that Mr. Pyrek's blood was drawn at 5 AM and sent to the medical lab either through the pneumatic tube system or by hand and it arrived at the lab sometime before 6:55 AM. The blood should have been followed by police more closely between 5 AM and 6:55 AM but I am still satisfied that continuity is established in this case. The vials were not opened when initially received by the lab. Constable Faulkner placed the seal on one of the vials of Mr. Pyrek's blood at 6:55 AM. Credit Valley Hospital is a hospital employing trained physicians, nurses and staff who are "in the business" of providing medical care including by taking blood and properly maintaining the integrity of it. The health and welfare of the lives of the patients of Credit Valley Hospital depend upon the integrity of medical procedures undertaken by the healthcare professionals at Credit Valley including the taking of blood. Of course mix-ups are possible in any organization but it is clear from the testimony of the four hospital witnesses that a blood mix up is highly unlikely and there is no reason to believe that any such mix-up occurred in this case or that the blood was tampered with between the time it was taken and the time Constable Faulkner placed the seal on it.
Issue 2 – Assuming the answer to Issue 1 is in the affirmative, was there a s. 8 Charter violation in respect of the blood samples? If so, should the evidence associated with the blood samples be excluded under s. 24(2) of the Charter?
164The defence acknowledges that the blood was taken by the healthcare workers for healthcare purposes. The defence does not suggest that the placing of the seal by Constable Faulkner on one of the vials of blood constituted a violation of s. 8 of the Charter. Nor does the defence object to the content of the application for the warrant or the granting of the warrant in this case. However, the defence points out that the practice of the hospital was to keep blood samples for no longer than five days and that it took the police approximately 30 days to obtain a search warrant in this case. It is the defence's position that, in the approximately 25 day period after which the hospital would have otherwise disposed of the blood through to the time of the granting of the warrant, the hospital was acting as an agent of the police and that this was an unreasonable seizure contrary to s. 8 of the Charter. The defence further submits that Mr. Pyrek could reasonably expect that his blood samples would be dealt with as per hospital policy or practice (i.e. disposed of) and that the blood sample evidence should be excluded pursuant to s. 24 (2) of the Charter.
165Let me be clear that I accept Constable Faulkner's evidence that when he placed the seal on the vial of blood he told Ms. Tathgur that the hospital could continue to use the blood for medical purposes. He also told her that if they did use it, they would have to tell the police what they used it for. Constable Faulkner was wrong when he told her that they would have to somehow account to the police for the use of the blood. There would be no obligation for the hospital to do that. Having said that, the hospital was free to use that blood for medical purposes if it so chose to do so.
166Ms. Tathgur did not remember anything associated with the placing of the seal on the vial except that she said that if it did happen she would have put the seal on it. I disagree with her supposition and find that Constable Faulkner put the seal on the vial in accordance with his usual practice. I am not certain that Ms. Tathgur understood the legal implications of the seal on the vial in the sense that the hospital was free to use the blood for medical purposes but Constable Faulkner did make this clear to her and if she did not understand it, she should have asked for clarification and, in any event, her superiors should have or would have understood the implication of the seal and could have spoken to Constable Faulkner or the police about it if they needed clarification. There was no obligation on Constable Faulkner to explain any further to Ms. Tathgur that the hospital was free to use the blood notwithstanding the seal.
167The Ontario Court of Appeal has dealt with the question of blood samples and their relationship to s. 8 of the Charter on a number of occasions. In R. v. Gittins, 181 C.C.C. (3d) 304 (Ont. C.A.), the Ontario Court of Appeal considered a case in which blood was taken for medical purposes; a CFS seal was placed by the police on one of the vials of blood and a warrant was subsequently obtained. It was submitted at trial and on appeal in Gittins that there was a violation of s. 8 the Charter. Justice Weiler, for the Court of Appeal, was prepared to accept in that case that the placing by police of a seal on a vial of blood constituted a seizure. However, she pointed out that s. 8 of the Charter only protects against unreasonable search or seizure. The Court stated that it did not constitute an unreasonable seizure for the reasons which Justice Weiler summarized as follows (at para. 20):
The sealing of the vials of blood did not amount to an unreasonable search or seizure of the appellant because it did not interfere with the appellant's spatial interests, dignity, physical integrity or his interest in controlling the release of information about himself.
168In R. v. LaChappelle, 2007 ONCA 655, 226 C.C.C. (3d) 518 (Ont. C.A.), the Court of Appeal dealt with another case in which blood was taken for medical purposes and a seal was placed on one of the vials by the police. The evidence in that case was somewhat similar to the case at bar and was to the effect that blood not used for medical purposes would otherwise be destroyed before the police could obtain the evidence through a search warrant (see para. 41). The Court of Appeal in LaChappelle referred to the decision in Gittins as standing for the proposition that (at para. 41):
sealing vials of blood until a search warrant could be obtained, where, as here, the vials remained under the control of the hospital in the event they were needed for medical purposes, was not an unreasonable seizure. (emphasis added)
(see also R v. Tessier, 58 C.C.C. (3d) 255 (Ont. C.A.))
169Accordingly, it is my view that it is clear that the sealing of the vials by police and the keeping of them by the medical professionals past the time that they would otherwise be disposed of, does not constitute an unreasonable seizure contrary section 8 of the Charter. However, this case is different than the LaChappelle case as in the case at bar no warrant was obtained until 25 days past the time that the blood otherwise would have been disposed of. In the case of LaChappelle, it appears that the warrant was obtained two days after the vial was sealed but still after the blood would have otherwise have been destroyed. The explanation for the 25 day delay in this case, as indicated, was essentially that the police were busy with other things unrelated to the investigation and certain notes of one of the officers were misplaced or lost in transit for a period of time. It was also the evidence that someone else other than Constable Faulkner could have done the warrant application.
170In my view, a seizure which is not unreasonable two days after a vial is sealed (and would otherwise have been destroyed as in LaChappelle) does not become unreasonable after 25 or 30 days absent some evidence of material prejudice to Mr. Pyrek. If I am wrong and there may be said to be a violation of s. 8 of the Charter because of the delay in obtaining the warrant, I consider it to be a minor breach at best and the evidence should not be excluded under s. 24(2) of the Charter. The s. 24(2) R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 analysis requires an evaluation of three issues: (i) the seriousness of the Charter infringing state conduct; (ii) the impact on the Charter protected interests of the accused; and (iii) society's interest in adjudication on the merits.
171Assuming a s.8 Charter breach, the seriousness of the Charter infringing state conduct was minor. The evidence of the blood sample existed independently of any police investigation. Had Constable Faulkner moved more quickly to obtain the warrant there would have been no violation of s. 8 of the Charter. Constable Faulkner should have moved more quickly but his failure to do so did not interfere with the dignity of Mr. Pyrek or his privacy interests. At all times prior to the issuance of the warrant, the blood remained under the control of the hospital and could have been used for medical purposes. Mr. Pyrek had no commitment from the hospital that his blood would be destroyed after 5 days. There is no evidence that Mr. Pyrek had any actual expectation in this regard. Similar points can be made regarding the impact on the Charter protected rights of Mr. Pyrek. The impact on his Charter rights was negligible in my view.
172Society's interest in adjudication on the merits favours the admission of the blood evidence in this case and most of the cases support the admissibility of blood sample evidence in similar circumstances: see R. v. Gittens at para. 21; see also R. v. Colbourne, 1998, 19 M.V.R. (4th) 1 at para. at 109 (per Durno J.).
173Accordingly, Ms, Bugyra's report dated November 1, 2012 in which she found that Mr. Pyrek's blood had a blood alcohol concentration of 107 mg of alcohol in 100 mL of blood at the time of the sample collection is admissible in evidence against Mr. Pyrek.
Issue 3 – Has the Crown proved the underlying assumptions in the Toxicologist's reports?
174As previously indicated, the expert witness toxicologist Ms. Bugyra testified that she prepared a report dated November 1, 2012 which analyzed Mr. Pyrek's blood. She found that it contained a blood alcohol concentration of 107 mg of alcohol in 100 mL of blood at the time of the sample collection. Based on this report, Ms. Bugyra did a further report dated November 15, 2012 in which she gave the opinion that Mr. Pyrek's blood alcohol concentration was 107 to 137 mg of alcohol in 100 mL of blood between 3:25 and 3:32 AM on September 23, 2012.
175Ms. Bugyra also prepared a further report based on the single breath sample obtained from Mr. Pyrek. That report was dated November 8, 2013. In that report she provides an opinion that Mr. Pyrek's blood alcohol concentration was between 75 and 150 mg of alcohol in 100 mL of blood between 3:25 AM and 3:32 AM on September 23, 2012.
176There was an assumption in the November 15, 2012 report that the blood sample was taken at approximately 5 AM and I have already found as a fact that the blood was taken at approximately 5 AM so that assumption is established.
177In addition, as indicated in my review of the evidence, both the November 15, 2012 and November 8, 2013 reports were based on four assumptions which are stated in Ms. Bugyra reports as follows: (i) a rate of elimination of alcohol from the blood ranging from 10 to 20 mg of alcohol in 100 mL of blood per hour; (ii) allowance for a plateau of up to two hours; (iii) no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the accident; and (iv) no consumption of alcoholic beverages after the incident and before the breath test or blood test.
178Where a party calls an expert, the party calling the expert bears the onus of proving the assumptions underlying an expert's opinion and absent proof of those assumptions, no weight can be given to the expert's opinion. The leading case on the issue of proof of the assumptions in an expert toxicologist's report in a drinking and driving case is the decision of the Ontario Court of Appeal R v. Paszeczenko; R v. Lima, 2010 ONCA 615, 103 O.R. (3d) 424 (C.A.) at para. 21 (the "Lima" case).
179Our Court of Appeal has indicated that the first and second assumptions are matters that the court can take judicial notice of: see the Lima case at para. 22. There were no issues taken with the first and second assumptions in this case and given the court's ability to take judicial notice of these two assumptions, they are proved in this case. There is no evidence of post-accident drinking so the fourth assumption is proved as well.
180The issue in this case is the third assumption namely that there was "no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the accident". This assumption, or one similar to it, is a common assumption in the expert evidence given by toxicologists in drinking and driving cases and is sometimes referred to as the "no bolus drinking" assumption.
181The Court of Appeal in Lima explained the nature of the bolus drinking defence as follows at para. 39:
…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 than later because it was still rising at the time of the incident.
182In Lima, the Court of Appeal noted further that as concerns the no bolus drinking assumption the Crown is in the "unenviable position of having to prove a negative" (at para. 28). The Court of Appeal stated that bolus drinking is a "relatively rare" phenomenon and that the "no bolus drinking" assumption is largely a matter of common knowledge and common sense as to how people behave (at para. 29). The Court of Appeal stated that the trial court can draw a "common sense inference of drinking at a normal pace" and that "people do not normally ingest large amounts of alcohol just prior to or while driving": Lima at paras. 31-32 referring to R. v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641 at para. 20. The Court of Appeal in Lima stated that there is "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 that at least puts the possibility that the accused had engaged in bolus drinking in play." The Court of Appeal stated that absent something to put bolus drinking in play, the so-called common sense inference of no bolus drinking may, but not must, be drawn: see Lima at paras. 31-32 and 37.
183In some cases, courts have characterized the amount of alcohol that would have to be consumed to support a bolus drinking defence as ranging from "unusual" to "preposterous": see R v. Grosse, 29 O.R. (3d) 785 (C.A.) at paras. 14 and 15. The Court of Appeal in Lima explained the concept of bolus drinking by reference to cases which involved a wide range of different volumes of the rapid consumption of alcohol with one case referring to the unlikely possibility of 9 ounces of alcohol being consumed in 30 minutes and another case referring to a half a glass of beer allegedly being consumed quickly before leaving a restaurant. See Lima at paras. 30 and 31 referring to Grosse at para. 15 and R. v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641 at para. 20.
184In this case, it is important to note that Ms. Bugyra indicated that by "no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the accident" she meant one standard drink namely one 12 ounce beer containing 5% alcohol; one 5 ounce glass of wine contain 12% alcohol; and 1.5 ounces of liquor containing 40% alcohol. The same assumption applies to the read back opinion based on the breath sample and the blood sample.
185The thought that someone might drink a single beer or a glass of wine in 15 minutes does not strike me as preposterous or all that unusual.
186In some cases where the defence raises the issue of bolus drinking, the defence will be faced with weak or no evidence of bolus drinking. See for example R. v. Hall at para. 20 where the Court of Appeal said there was "no evidence whatsoever of bolus drinking" or the Lima case at para. 39 where the Court of Appeal stated that there was "circumstantial evidence tending to support the view that there was no bolus drinking in the circumstances". In both those cases the Court of Appeal upheld the finding by the trial judges in those cases that the no bolus drinking assumptions in the relevant expert's reports were proved.
187I also consider that the Crown does not have to prove the no bolus drinking assumption beyond a reasonable doubt. This assumption is not an essential element any of the offences with which Mr. Pyrek is charged. As indicated in Lima, the Court will often draw a common sense inference that there has been no bolus drinking. When such an inference is not drawn, then all that the Crown must do is to show that there is sufficient evidence to prove the no bolus drinking assumption: see R. v. Saul, [2015] B.C.J. 672 (B.C.C.A.) at para. 37.
188The case at bar is very different than the usual case in which the no bolus drinking assumption is proved. In this case, the evidence is clear that the parties were engaged in a drinking game which involved the rapid consumption of alcohol.
189As explained in my review of the facts, there is no doubt that Mr. Pyrek was drinking in the 15 to 20 minutes prior to his departure for McDonalds and that he likely consumed at least the equivalent of one beer or one glass of wine during that time and that is probably an underestimation. On my view of all of the evidence, the accident happened sometime between approximately 3:20 AM and 3:30 AM on September 23, 2012. The evidence from Ms. Kather that they played the beer pong game until about 1:45 AM to 2 AM and then left for McDonalds is clearly incorrect on the timing. She is right when she says that they went to McDonalds right after the last game but she is wrong on the 1:45 AM to 2 AM time estimate. It was much later than that. Ms. Kather said that the accident happened within two or three minutes after they left and I accept this point. This must be right as they had only travelled just over 500 metres.
190I note both Ms. Kather and Mr. Abramov were clear that Ms. Kather and Mr. Pyrek departed for McDonalds right after the last beer pong game. The last beer pong game must have ended it around 3:15 AM after which they departed for McDonald's. The accident happened within two minutes after they left.
191The bottom line is this: Mr. Pyrek (as well as Ms. Kather, Mr. Abramov and Sierra) were not engaged in "drinking at a normal pace" as that point is made in Lima. An accused does not have to prove that they were engaged in bolus drinking in order to avoid the application of the common sense inference of no bolus drinking. All an accused person has to do is put "the possibility that the accused… [has] engaged in bolus drinking in play": see Lima at para. 32.
192In my view, the accused has done more than simply raise the possibility of bolus drinking having occurred in the 15 or 20 minutes prior to the accident. There is no basis in this case for the Court to draw the common sense inference that no bolus drinking occurred. Just the opposite, the evidence establishes that bolus drinking did occur. On the evidence in this case, the Crown has not proved the third assumption in Ms. Bugyra's report.
193Accordingly, the third assumption in Ms. Bugyra's reports is not proved. In the circumstances, no weight can be given to the opinions in the November 15, 2012 the November 8, 2013 reports.
Issue 4– Considering the answers to the above questions, has the Crown proved beyond a reasonable doubt that Mr. Pyrek did operate a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code?
194The third assumption contained in Ms. Bugyra's reports of November 15, 2012 report or the November 8, 2013 is not proven. It is these reports which provide the only evidence that Mr. Pyrek's blood-alcohol concentration exceeded 80 mg of alcohol in 100 mL of blood at the time of the accident.
195As a separate point, I note that the November 8, 2013 report of Ms. Bugyra based on the single breath sample provided an opinion that the blood alcohol range would be 75 to 160 mg of alcohol in 100 mL of blood anywhere from 2:45 AM to 3:40 AM. She acknowledged that there is a margin of error and the lower end could be as low as 70 mg of alcohol in 100 mL of blood. Even if the third assumption in this opinion had been proved, an opinion such as this one which straddles the over 80 offence, with nothing more by way explanation or clarification, would not be capable of proving the case beyond a reasonable doubt as there is no way of knowing whether Mr. Pyrek's blood-alcohol concentration was above or below 80 mg of alcohol in 100 mL of blood given the range contained in the opinion.
Issue 5 - Has the Crown proved beyond a reasonable doubt that Mr. Pyrek did operate a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(a) of the Code?
196The following test for proof of impaired care or control of a motor vehicle was stated by Labrosse J.A. for the Ontario Court of Appeal in R. v. Stellato, 78 C.C.C. (3d) 380 (Ont.C.A.) at 384 affirmed , [1994] 2 S.C.R. 478:
In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (emphasis added)
197It was Ms. Bugyra's opinion that anyone who had a blood-alcohol concentration of more than 50 mg of alcohol in 100 mL of blood at the time of driving would be significantly impaired in their ability to operate a motor vehicle.
198Given that the no bolus drinking assumption has not been proved, I cannot attach any weight to Ms. Bugyra's opinion as the Court doesn't know what Mr. Pyrek's blood-alcohol concentration was at the time of driving. I will have more to say about Mr. Pyrek's driving under my consideration of the dangerous driving issue. There is no doubt that Mr. Pyrek's driving was not what it should have been but I cannot say that the manner in which he drove his vehicle that night was due to impairment caused by alcohol. The observations made of him by the police witnesses were made well after the driving had occurred so little weight be given to them. A consideration of the evidence as a whole does not prove the impaired charge beyond a reasonable doubt.
Issue 6 - Has the Crown proved beyond a reasonable doubt that Mr. Pyrek did operate a motor vehicle on a street or road or highway or public place in a manner that was dangerous to the public causing bodily harm to Carlee Kather contrary to section 249(3) of the Code?
199The first question to be determined on this issue is whether Mr. Pyrek operated a motor vehicle in a manner that was dangerous to the public. If he did, then the question of causation of bodily harm arises. If he did not, then he must be acquitted of the dangerous driving causing bodily harm charge. Section 249(1) and (3) of the Code provide as follows:
s. 249 (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years.
200The Supreme Court of Canada has given guidance to trial courts on what is required to make out the offence of dangerous driving. The actus reus will be made out where the "trier of fact [is] satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is what might reasonably be expected to be at the place": see R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 at para. 43. When determining whether the actus reus is made out the Court must examine the manner in which the motor vehicle was operating not the consequences of the driving. Accordingly, where death or injury occurs for example, that has no bearing on the question of whether dangerous driving has occurred. The consequences of the driving may inform an assessment of the risk involved but it does not answer the question of whether or not the vehicle was operated in a manner dangerous to the public (see Beatty at para. 46).
201The mens rea component of dangerous driving requires that the trier of fact be satisfied beyond a reasonable doubt on the basis of all of the evidence, including the evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances: see Beatty at para. 43). The care exhibited by the accused is to be assessed against the standard of care expected of a reasonably prudent driver in the circumstances which is the civil standard. Only a marked departure from the norm will give rise to criminal liability justifying criminal punishment. The lack of care must be serious enough to merit punishment (see Beatty at para. 48 and R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60 at para. 28).
202The Supreme Court of Canada has made it clear that the mens rea of the dangerous driving requires "a significant fault" element in order to distinguish between negligence for the purpose of imposing civil liability and that required for a criminal finding and punishment: see Roy, 2012 SCC 26, [2012] 2 S.C.R. 60 at para. 32. The Supreme Court has suggested that courts consider two questions when assessing whether the mens rea for a dangerous driving offence has been made out. First, the court should consider whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances: see Roy at para. 36.
203Conduct occurring in only a few seconds can constitute a marked departure from the standard of reasonable person although conduct that occurs in such a brief period of time is more indicative of a breach of only the civil standard rather than the criminal one: see Beatty at para. 48 referring with approval to the comments of Justice Doherty in R. v. Willock, 210 C.C.C. (3d) 60 (Ont. C.A.) at para. 3, a case involving the offence of criminal negligence which is higher on the negligent driving continuum than dangerous driving.
204The Supreme Court of Canada has stated that the existence of the required objective mens rea may generally be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where there is driving which is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference from the manner of driving: Roy at para. 40. Notwithstanding this point, simple stating that the driving, viewed objectively, was dangerous and then inferring a marked departure with respect to the fault element is incorrect and would be an error. Only driving that constitutes a marked departure from the norm will reasonably support the inference: Roy at para 44. The key question is whether "a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity": see Beatty at para. 37 and Roy at para. 40 (emphasis added).
205It is instructive to examine how higher courts have applied the marked departure test to particular fact situations. In Beatty, Supreme Court examined a case in which the accused's conduct involved suddenly crossing the centerline in the roadway killing all three occupants in an oncoming vehicle. There was no evidence of speeding and drugs or alcohol were not a factor in the accident. After the accident, the accused stated that he was not sure what had happened and that he must have fallen asleep. There was evidence to the effect that the crossing of the centerline and collision with the oncoming vehicle would have taken less one second to occur. The Supreme Court of Canada stated that the actus reus of the offence was made out in that the failure of the accused to confine his vehicle to his lane was dangerous to others using the highway. The Supreme Court indicated that the more difficult question was the issue of whether the required mens rea had been established. The Court found that the "momentary lapse of attention" which had occurred in the case was not sufficient to support a finding of a marked departure from the standard of care of a prudent driver (see Beatty paras. 51-52).
206Similarly, in Roy the Supreme Court of Canada considered a case where a driver was approaching a highway from another road. He had stopped his vehicle before entering the highway. He then entered the highway directly into the path of a tractor-trailer. A passenger in his vehicle was killed. The driver survived but was left with no memory of the accident. The driving, viewed objectively, was dangerous but there was no evidence with respect to the driving leading up to the collision with tractor-trailer indicating that driving was anything other than normal and prudent. The Court viewed the evidence as constituting nothing more than "a single and momentary error in judgment with tragic consequences" (Roy at para. 55). The evidence in that case did not support a finding of a marked departure from the standard of care expected of a reasonable person so as to justify a conviction for dangerous driving.
207In R. v. Hundal, [1993] 1 S.C.R. 867 the Supreme Court of Canada considered a case in which the accused was driving an overloaded truck in downtown Vancouver. As the accused approached a city intersection, the light turned yellow. The accused was unable to stop in time so he honked his horn and continued through the intersection. There was evidence that he had entered the intersection when the light was red. He collided with another vehicle which had entered the intersection on a green light thereby killing the driver of that other vehicle. The Supreme Court upheld the finding by the trial judge that the accused was guilty of dangerous driving. The Supreme Court stated that the accused's manner of driving "represented a gross departure from the standard of a reasonably prudent driver" (Hundal at paras. 14 and 45). I note that in making this observation Supreme Court equated the marked departure standard to that of a "gross departure".
208The Ontario Court of Appeal in R. v. Richards, 174 C.C.C. (3d) 154 (Ont. C.A.) considered a case in which the accused person was traveling at a minimum of 119 km/h in a 100 km zone. He lost control of his vehicle and entered onto the grass median and hit a pillar resulting in the death of two of the passengers in his vehicle. The trial judge found that the only evidence of dangerous driving was the excessive speed and held that excessive speed alone could not constitute dangerous driving and thereby misinterpreted an earlier ruling of the Ontario Court of Appeal. The Ontario Court of Appeal in Richards made it clear that excessive speed in itself, depending upon the circumstances and context in which it occurs, can constitute dangerous driving: Richards at para. 11. There was evidence to the effect the drivers regularly drove at 130 km/h in the area where the accident occurred. The Court of Appeal ordered a new trial. The important point here is that while excessive speed can constitute dangerous driving, it will not always do so and the particular circumstances must be considered.
209The Ontario Court of Appeal has distinguished the momentary lapse of attention cases like Beatty and Roy from those cases where there is an overall dangerous pattern of driving which may include a momentary lack of attention. Where there is an overall pattern of dangerous driving, the dangerous driving offence is made out assuming the mental element is present: see R v. Needham, 2008) 159 (Ont. C.A.) affirming 2005 CarswellOnt 10361 (Ont. Sup. Ct.)
210Turning to the case at bar, the evidence on the dangerous driving offence includes the following:
(a) the distance of the questionable driving on Edenwood Drive from Tours Road heading north to the site of the accident was approximately 500 metres. Drivers often use that section of Edenwood Drive between Tours Road and Battleford Road as an alternative to Winston Churchill Boulevard. There are no stop signs or traffic lights on that section of Edenwood Drive;
(b) Mr. Pyrek had driven that section of Edenwood Drive between Tours Road and Battleford Road dozens of times. He knew the road well;
(c) Edenwood Drive is a typical residential street in Mississauga. The lighting was typical of a residential street and I accept Mr. Lytle's evidence that the lighting in the area was adequate. It was a warm, clear and dry night;
(d) A map of the area introduced into evidence shows a curve in the road to the south of where the accident happened. Mr. Lytle referred to it a "slight" curve;
(e) There were various estimates from the civilian witnesses that the speed limit on Edenwood Drive where the accident occurred was 30, 40 or 50 km/h. Both Constables Garvin and Baillargeon testified that they thought the speed limit was 50 km/h. It is part of Constables Garvin and Baillargeon's jobs to know such matters and they were both on the same page on this issue and I accept their evidence that the speed limit was 50 km/h at the time the accident. I accept that a solar sign telling drivers to slow down if they exceed the speed limit and a sign warning of the curve have now been installed south of where the accident occurred for drivers headed north. I also accept that the speed limit is now 40 km/h. There was no evidence connecting these changes to the circumstances of the accident involving Mr. Pyrek and Ms. Kather;
(f) Ms. Kather is the only eyewitness to the events who testified. A number of important points arise out of her evidence. Her evidence was that there was no problem with Mr. Pyrek's driving until after they had left the Tours Road stop sign at Edenwood Drive and were heading north on Edenwood Drive towards Battleford. She said that was nothing abnormal about Mr. Pyrek's driving other than the speeding. She testified that she thought they were going 80 to 100 km/h but under cross-examination she acknowledged that they could have been going 60 km/h. When asked if they could've been going 50 km/h she said she did not know. In re-examination she indicated that she felt the car was going a lot faster than 50 km/h;
(g) Ms. Kather testified that she twice yelled at Mr. Pyrek to slow down and he looked over at her and said don't worry. He lost control of the vehicle as they hit a curve in the road. After the accident, as they sat in the wreckage, he said to her that he had "fucked up";
(h) Ms. Kather acknowledged that at the time of the accident she was drunk. She also acknowledged that alcohol could affect her perception of the speed. Her own description of her state of intoxication is consistent with the evidence of Constable Faulkner who, several hours later, indicated that she showed obvious signs of intoxication. Nevertheless Constable Faulkner thought at the time that her information was reliable;
(i) Experienced police officers (Garvin and Baillargeon) observed that the damage to the vehicle was very bad. Constable Garvin said it was the worst he had seen and at that time he was seven years as a police officer. Constable Baillargeon testified that the car was literally "wrapped around the tree". The front of the car was almost touching the back of the car. Given the condition of the vehicle and the circumstances he observed, he thought there may well be a fatal injury associated with the accident.
(j) One of the neighborhood witnesses, Mr. Mohammad, came very close to the vehicle and heard the communications from his neighbours with the female person in the car which was obviously Ms. Kather. Given the condition of the car he found it hard to believe that there was another person (Mr. Pyrek) in the car.
(k) Mr. Mohammed was aware of two other accidents on Edenwood Drive in the general vicinity of the accident in this case. One was on the same side and one was on the other side. He thought one was before the accident and one was on the other. There was no other information about these accidents and what caused them;
(l) the accident occurred in the middle of the night. On my view of all of the evidence the accident must have occurred sometime between approximately 3:20 AM and 3:30 AM;
(m) it took the fire department a considerable period of time to extract Mr. Pyrek and Ms. Kather from the vehicle and the vehicle needed to be cut in order to free the occupants.
211Is my view that the actus reus of the offence of dangerous driving is made out. This follows from the fact that in my view Mr. Pyrek was most certainly exceeding the speed limit a 50 km/h by a significant amount. He was driving on a residential Street that he knew well. He lost control of his vehicle and could not keep it on the roadway. Finally, when he lost control of the vehicle and it left the roadway, his inability to control the vehicle continued such that his vehicle collided with a tree. It took the presence of the tree to cause an abrupt stop to the vehicle. While it was the middle of the night and there could not have been many people around, it was a residential area and it is reasonable to infer that there would be others out in their vehicles or walking in the neighbourhood. In the circumstances, the actus reus for dangerous driving is made out.
212The more difficult question is whether the mental element is made out. For the reasons set out below, it is my view that the mental element for dangerous driving is established beyond a reasonable doubt in this case.
213It is appropriate to consider the two questions suggested by the Supreme Court of Canada in Roy. The first question is whether in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. It is my view that a reasonable person would have foreseen the risk of driving at a high rate of speed on a residential street which they knew well and which contained a curve. While the period of driving was not lengthy, this was clearly not a momentary lapse in judgment like the cases of Beatty and Roy. The questionable driving would have taken place over a 500 metre distance. At 80 km an hour for example, it would have taken 23 seconds to cover 500 metres. This was not a one or two second error in judgment.
214The second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from standard of care expected of a reasonable person in the accused's circumstances. Again, my view is the evidence is clear that Mr. Pyrek failed to perceive the risk and take steps to avoid it and that his conduct demonstrated a marked departure from the standard of care.
215The evidence of Ms. Kather of what occurred in the immediate timeframe leading up to the accident is very significant. As she sat there in the passenger seat, she foresaw the risk with Mr. Pyrek's manner of driving and she twice yelled at him to slow down. This was not a gentle nudge to slow down a little bit which a passenger might give to a driver. She was yelling at him to slow down. She foresaw the risk of his driving and he should have as well. It is true that she was intoxicated but she still was very aware of the events that were unfolding around her. Notwithstanding her intoxication, her view of the circumstances prior to the accident was correct. Mr. Pyrek was driving too fast and he could not control the vehicle. The submission of Mr. Pyrek is in effect that her evidence is not reliable because she was intoxicated but that argument rings hollow. She was right. Mr. Pyrek was driving too fast. It cannot be Mr. Pyrek's submission that Ms. Kather was wrong and that Mr. Pyrek was actually driving in an acceptable manner but just happened to come across a curve in the road that he hadn't anticipated.
216I cannot say with certainty precisely what speed Mr. Pyrek was driving but that does not prevent the Court from making a finding of dangerous driving in the circumstances. He was driving well over the speed limit in my view. I believe that Ms. Kather's original evidence that he was driving 80 to 100 km/h was correct. I believe Ms. Kather was wrong when she said in cross that perhaps he was only going 60 km/h. I consider that he would have had much better control of his vehicle at only 60 km/h. The damage to vehicle was consistent with a high rate of speed although the Court recognizes that there was no expert evidence on this point and the most that can be said is that common sense suggests that the greater the speed, the greater the damage. Standing alone, the damage to the vehicle, is of limited value. As I have said, it does not matter that his precise speed cannot be precisely determined. That will sometimes be the case unless there is a radar gun, an accident reconstruction report or a passenger is looking at the speedometer. I note that in the case of R. v. Needham, 2008) 159 (Ont. C.A.) at para. 2, the Ontario Court of Appeal upheld a finding of dangerous driving where the evidence on speed was simply that the accused person "was driving extremely quickly at the time of the accident". There were other supporting facts in that case including that the driver had failed to slow down when he saw another vehicle which he ultimately collided with but on the question of speed that was the totality of the evidence.
217Mr. Abramov's evidence was that the speed limit of 50 km/h in the area of the accident was "insane" which I understood him to mean that in effect it was the municipality's fault for failing to lower the speed limit and protect drivers from the hazard of the curve. I reject this evidence. There is no possibility that Mr. Pyrek was only driving 50 km/h, or slightly more, and that he somehow lost control of his vehicle and wrapped it around a tree. As I have said, he was driving much faster than that. Mr. Pyrek knew the road and he ought to have foreseen the risk associated with his driving. Indeed, he was warned twice by Ms. Kather when she yelled at him and told him to slow down immediately prior to the accident but he failed to heed her warning. The fact that there is now a warning sign about the curve and the speed limit in the area has been lowered is of no moment. Mr. Pyrek did not need a warning sign and was not interested in the speed limit. He knew of the curve and a sign telling him about it and a sign lowering the speed limit would have made no difference nor does it change the Court's conclusion that dangerous driving is made out in this case beyond a reasonable doubt.
218It was conceded by the defence that Ms. Kather suffered bodily harm within the meaning of s. 249(3) of the Code. The question of causation was not conceded although there were no submissions were made on this issue by the defence in closing argument. In order for the Crown to prove the charge of dangerous driving causing bodily harm the Crown must establish that Mr. Pyrek's conduct was at least a contributing cause to the bodily harm: R. v. K.L., 2009 ONCA 141, 75 M.V.R. (5th) 1 (Ont. C.A.) at para. 19. In my view, the evidence clearly establishes beyond a reasonable doubt that Mr. Pyrek's dangerous driving was a contributing cause to the bodily harm suffered by Ms. Kather. His conduct and her injuries are inextricably linked.
Conclusion
219My conclusions may be briefly summarized as follows:
(a) the Crown has established that Mr. Pyrek's blood was taken at approximately 5 AM on September 23, 2012 and that continuity/chain of custody with respect to that blood through to the time of the testing at CFS is established;
(b) there was no s.8 Charter breach with respect to the delay in obtaining the warrant for the blood past the time when the blood samples would have been disposed of by the hospital. In the alternative, any such Charter breach was negligible and the evidence should not be excluded pursuant to s. 24(2) of the Charter;
(c) the Crown has failed to establish the "no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the accident" assumption in the toxicologist's reports which analyzed both the breath and the blood samples. As a result, no weight can be given to the toxicologist's opinions contained in the November 15, 2012 or the November 8, 2013 reports;
(d) given that no weight can be given to the November 15, 2012 and November 8, 2013 toxicology reports, there is no evidence to support the over 80 charge and there will be an acquittal on that charge;
(e) given that no weight can be given to the November 15, 2012 and November 8, 2013 toxicology reports, there is insufficient evidence upon which to make a finding of impaired driving and there will be an acquittal on that charge; and
(f) the evidence establishes beyond a reasonable doubt that Mr. Pyrek operated his motor vehicle in a manner that was dangerous to the public and which caused bodily harm to Ms. Kather. As a result, there will be a finding of guilt on the charge under s. 249(3) of the Code.
Released: June 15, 2015
Justice Paul F. Monahan