Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Joseph Palic
Before: Justice Fergus O'Donnell
Reasons for Judgment Delivered on: 10 December, 2015
Counsel:
Ms. G. McLoughlin — for the Crown
Mr. P. Dotsikas — for the defendant, Joseph Palic
Judgment
Fergus O'Donnell, J.:
Overview
1Joseph Palic faces a single charge before me, namely impaired driving. The events that have brought Mr. Palic to court occurred on the evening of 7 October, 2014, culminating some time before midnight, when Mr. Palic's motor vehicle left the roadway on Islington Avenue in Toronto, ultimately coming to a stop in the driveway of an apartment building, leaving the motor vehicle effectively demolished and leaving a trail of significant damage to public and private property. Nobody was injured in the collision except Mr. Palic himself.
2I heard from a member of the public who rushed out of her apartment to render assistance to Mr. Palic, from four police officers who were involved in the investigation, from a forensic toxicologist with the Centre of Forensic Sciences and from Mr. Palic himself. I shall start with Mr. Palic's evidence in order to provide as chronological a recounting of that evening's events as possible.
The Evidence
3Mr. Palic testified that he had been working that day at his delicatessen in Mississauga when an old friend whom he hadn't seen for twenty years came in just before closing time. He closed up the shop at 6 p.m. and they went out for dinner near the store. Mr. Palic said he had one glass of wine with dinner. He then drove his friend into Rexdale, in order to drop him off with other friends the visitor was staying with. Before doing that they stopped at a bar near the other friends' place, where Mr. Palic said he had two bottles of beer. Mr. Palic testified that he was feeling no effect of the alcohol, describing himself as a "bigger guy", weighing in at 235 lb. He testified that he dropped his old friend off where he was staying and then started to head off home, following his friend's directions because he was not familiar with that part of town.
4Mr. Palic testified that he had travelled about five minutes after dropping off his friend when the collision occurred. It had been raining before the collision. He was unsure what direction he was travelling. He was travelling at normal speed (Constable Bullock testified it was a 60 km/h zone), watching for street signs. He said that someone drove up beside him and veered towards him. He was unsure if they hit him or not. He honked the horn and did not know what happened next. The next thing he knew he was in the hospital.
5In cross-examination, Mr. Palic gave a general time-line for the events of the evening. He would have gotten to the restaurant within ten minutes or so of closing his shop at 6 p.m. They had a full dinner so were at the restaurant "quite some time"; they had a lot to talk about given how long it had been since they saw each other. He was unsure when he left the restaurant and "guessed" that it took twenty or twenty-five minutes to get from the restaurant in Mississauga to the bar. They were at the bar "quite some time". He guessed that it was about five minutes from the bar to where his friend was staying. It was also about five minutes from when he dropped his friend off to the collision. He did not know what time he dropped his friend off. He was adamant that over the course of the evening he had only one glass of wine and two bottles of beer. It was not possible that he had had more than that. He guessed he was in the right lane when the collision occurred. He was unsure about whether he had first seen the intruding car in his mirror or through the window. He was unsure of its colour. When asked if he had braked, he answered that his car was a Jeep so it was "jumpy"; he just recalled grabbing the wheel and that it jumped to the right. He assumed that as the other car came into him he went to the right. He was very confident when it was suggested to him that perhaps he had veered into the other car rather than the other way around. That had not happened.
6In examination in chief Mr. Palic said that as the other car came towards him, he honked at it. In cross-examination, he testified that he first noticed the other car because it started honking the horn at him as it veered towards his car and perhaps he honked back.
7Elizabeth Lall testified that she lives on Islington Avenue, in an apartment building adjacent to the collision scene. She had just arrived home. It was really late. She "guessed" it was around midnight. She heard a bang, looked out the window and saw there had been a collision. She ran down from the fifth floor and found a man (there is no issue that this was Mr. Palic) with his head back on the driver's side of the vehicle. His airbag had deployed. With the assistance of another person, Ms. Lall removed Mr. Palic from his vehicle. He was mumbling and blacking in and out. His face was covered in blood. Other residents brought blankets.
8Constable Michelle Janse testified to receiving the radio call in relation to Mr. Palic's collision at 11:51 p.m. She arrived five minutes later and found Mr. Palic on the ground. His vehicle, a Jeep Wrangler had come to rest in the driveway of 2835 Islington Avenue. Although she did not note this in her notebook, once she was in the ambulance with Mr. Palic she noticed a strong smell of alcohol coming from Mr. Palic's breath. (The strength of a smell of alcohol, of course, does not demonstrate any particular level of consumption or intoxication). Mr. Palic was conscious but not really able to answer questions. After forming the belief that Mr. Palic had been driving while impaired, she arrested him at twelve minutes after midnight.
9Constable Lisa Boniface was partnered with Constable Janse that evening. While the paramedics worked on Mr. Palic, she made observations, including that both airbags in his car had activated, that there was blood on the driver's airbag and that the fire hydrant was lying in the middle of the road. Constable Boniface testified that after arriving at the hospital at twenty eight minutes after midnight, she was present when a blood sample was taken from Mr. Palic and at 12:45 a.m. she took possession of a blood sample and took it to the lab. She took the sample to the hospital lab, where tests were performed. At 2:08 a.m. she took custody of a sample and sealed it before putting it in a refrigerator for preservation. Having said initially that she had been present when the sample was taken from Mr. Palic, in cross-examination Constable Boniface said she did not know precisely when the samples were taken from Mr. Palic, only that they were handed over to her at 12:45 a.m. She, however, had followed Mr. Palic's ambulance directly to the hospital, arriving at 12:28 a.m. so the window during which the samples could have been taken was very narrow.
10Ultimately it was determined that because of a cut to his lip, Mr. Palic would not be able to create a proper seal around the mouthpiece, so he was not required to provide a breath sample in the hospital. Both Constable Janse and Constable Neil Sanders, a breath technician who happened to be at the hospital at the same time on another case, testified to that effect. The closest Constable Sanders could get was a partial reading, but Mr. Palic was not able to continue blowing and could not fully close his mouth.
11Constable Ryan Bullock works in Traffic Services for the Toronto Police Service. He attended 2835 Islington Avenue to document the physical manifestations of the collision. He found Mr. Palic's 2013 Jeep Wrangler, badly damaged in the northern portion of the semi-circular driveway of the building. He noted that it had been raining earlier that evening and the asphalt was still wet. Islington Avenue, a four-lane, 60 km/h roadway was well lit. There was a slight bend in the road in that area. The physical record suggested that Mr. Palic's car went out of control after hitting the east kerb of Islington Avenue. There were tire marks on the kerb and from there across to a fire hydrant, which had been sheared. A traffic sign pole from the driveway was taken down en route to the hydrant. Mr. Palic's car had apparently spun after hitting the hydrant and then come into collision with a hydro pole, moving that pole about three or four inches and losing a rear wheel and the rear axle in the process. The car came to rest in the northern part of the circular driveway. The axle and attached wheel landed about twenty metres southwest of Mr. Palic's car, in the northbound kerb lane of Islington Avenue. The fire hydrant had sheared off and landed in the same lane of traffic, about fourteen-and-a-half metres from its original location. Mr. Palic testified that his car was a write-off.
12In total, the two northbound and two southbound lanes of Islington were sixteen metres across.
13Laura Gorczynski is a scientist with the Centre of Forensic Sciences, specializing in toxicology. She has worked at the Centre of Forensic Sciences for almost fifteen years. For ten years she has been an adjunct professor in the Department of Forensic Science at Laurentian University, where she lectures to undergraduate students on the pharmacology and toxicology of alcohol and drugs and co-supervises undergraduate research projects in forensic toxicology. In her "day job", she has "written, reviewed and/or consulted on over 10,000 cases concerning the effects of alcohol, drugs and poison in relation to concentrations achieved in biological samples". She has been qualified in this court, in the Superior Court of Justice and in coroner's inquests over one-hundred and twenty times in relation to "the absorption, distribution and elimination of alcohol, drugs and poisons; the effects of alcohol, drugs and poisons in the human body; the analysis of alcohol, drugs and poisons in biological samples..." More than eighty of those expert-qualifications by a court or coroner were in relation to alcohol rather than other substances. Her curriculum vitae demonstrates a perennial commitment both to ongoing professional development and education and to teaching others, along with a fair body of published scholarship.
14Ms. Gorczynski was involved in the testing of Mr. Palic's blood sample. She testified that she performed two tests to ensure scientific confidence, much as a breathalyzer test is done in duplicate. She explained that the methodology for testing for alcohol in blood is mature and recognized, both in forensic science and in science generally. She explained that her analysis demonstrated that Mr. Palic's serum contained 222 mg of alcohol in 100 ml of serum. Because serum is the liquid portion of the blood, because alcohol distributes into a person's water and because serum has a high water content, a conversion has to be done to get the correct blood-alcohol concentration. That conversion showed that Mr. Palic's blood alcohol concentration in the sample from the hospital was 191 mg of alcohol/100 ml of blood. In performing her analysis, Ms. Gorczynski took steps to ensure the validity of the result, in addition to the double-testing. She testified about the daily maintenance of the equipment and of the use of standards and calibration curves in relation to any particular test in order to ensure the validity of the result. She performed those checks in relation to Mr. Palic's sample.
15In addition to her blood analysis, Ms. Gorczynski also did a read-back calculation to determine Mr. Palic's blood alcohol concentration at the time of driving. Based on the time of driving of "approximately" 11:50 p.m. and sampling at 2:08 a.m. (i.e. a gap of about 2 ¼ hours), she concluded that Mr. Palic's blood alcohol concentration at the time of the collision was between 194 and 237 mg of alcohol per 100 ml of blood, i.e. roughly two-and-a-half to three times the permissible blood alcohol concentration in an "over 80" prosecution, which this is not. Ms. Gorczynski's report stated 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 15mg/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.
In my scientific opinion, an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range.
16Ms. Gorczynski re-affirmed those conclusions in her oral testimony at trial, repeating that impairment becomes significant at 50 mg of alcohol per 100 ml of blood and that as the blood alcohol concentration increases above 50, both the level of impairment and the number of faculties impaired would increase. When challenged in cross-examination, Ms. Gorczynski pointed out the difference between "impairment" and "intoxication". She characterized the intoxicating effects of alcohol as things that can be seen outwardly such as slurring and compromised gross and fine motor skills. A person who drinks a lot can actually develop a tolerance to those effects of alcohol, but cannot develop a tolerance to the impairing effects, which are those effects listed in the quoted portion above.
17Unlike intoxication, it is typically very difficult to observe outward signs of impairment. A person could be impaired without it having any observable effect on their driving. For example, a person who is familiar with a route and who has an uneventful trip might get safely from point A to point B, despite being impaired. The impairment might very well manifest itself only in an emergency situation, such as when a person unexpectedly runs out in front of an impaired driver (a driving event that seems to me to be materially indistinguishable from when another car veers into one's lane, or when one perceives another car to be veering into one's lane). It is then that the person's impaired choice and reaction time could make the difference between an uneventful impaired drive home and an entirely different outcome. It is impossible to say which specific faculties related to driving will be impaired in any particular person, but impairment increases above a blood alcohol concentration of 50 mg/100 ml of blood.
Impressions Of The Key Witnesses
18I am not at all confident of Mr. Palic's reliability as a chronicler of the evening's events. I stress that I am not necessarily referring to Mr. Palic's truthfulness but rather to his ability reliably to recall and recount the events of that evening, during which he was in a major automobile collision. With respect to truthfulness, for example, his testimony about the presence of another motor vehicle may very well be true. It is less clear that that vehicle veered into Mr. Palic rather than the other way around. If that vehicle honked first at him, that would be consistent with Mr. Palic veering into the other vehicle (or at least that the other driver perceived Mr. Palic veering towards him). In any event, I do not have to make any determination of who veered into whom. I agree with counsel that this is not a case in which the issue of impairment will be decided based on the fact of a collision or Mr. Palic's incoherence after the collision or any of the "usual" indicia of impairment. This case falls to be decided on the scientific evidence tendered by the Crown. With respect to whether or not Mr. Palic's evidence of consumption might be perceived as having any potential to undermine that scientific evidence, the answer is a resounding no. His recollection of almost every event that evening was very vague, perhaps understandably so because of his injuries, but he had a clear and confident recollection of perhaps two details: the amount of alcohol he consumed over the course of the evening and the fact that there was no possibility that he veered into the other car. That stark and selective contrast in recollection does not inspire confidence at all.
19Ms. Gorczynski was an extremely impressive witness. She testified clearly and dispassionately. She demonstrated the credentials, the professional experience and the mastery of her subject that one wants in an expert witness, but none of the bluster or ego that marks some expert witnesses. When challenged in cross-examination she responded clearly and conceded valid points that were presented to her. When it was suggested that she was relying solely on "the literature" (as if that is a fatal flaw to an expert's opinion), her answer was that she herself had done some of the actual testing of subjects. The scientific distinction she drew between "impairment" and "intoxication" was explained clearly and convincingly. She was neither moved in cross-examination nor contradicted by other evidence.
The Foundation Facts And The Four Assumptions
20In performing her read-back calculation, Ms. Gorczynski began on the basis of the following foundation facts:
a. That Mr. Palic was involved in a collision at "approximately 11:50 p.m."
b. That the hospital blood sample was obtained from Mr. Palic at approximately 2:08 a.m.
c. That the blood sample showed a serum alcohol concentration of 222 mg of alcohol in 100 ml of serum, the equivalent of 191 mg of alcohol in 100 ml of blood.
21Ms. Gorczynski specified that her conclusion was based on the "four assumptions" that are familiar to any denizen of provincial court, namely:
a. A rate of elimination of alcohol from the blood ranging between 10-20 mg of alcohol per 100 ml of blood each hour.
b. A plateau period of up to two hours (i.e. a period during which the rate of elimination and the rate of absorption effectively balance each other out.)
c. That Mr. Palic did not consume large quantities of alcohol shortly before the collision.
d. That Mr. Palic did not consume alcoholic beverages between the collision and when the sample was collected.
22These "four assumptions" were the object of scrutiny by the Court of Appeal for Ontario in R. v. Paszczenko; R. v. Lima, 2010 ONCA 615. That decision clearly recognizes the scientific and legal validity of the first two assumptions as part of the foundational scientific knowledge of qualified experts and confirms that those assumptions do not need to be specifically proven. The third assumption, also known as the "no bolus drinking" assumption, was recognized as being firmly rooted in common sense and in judicial awareness that "people do not normally ingest large amounts of alcohol just prior to, or while, driving". In the absence of something on the record to suggest the possibility of bolus drinking, a trier of fact is entitled to conclude that it is not a relevant consideration. In the present case, I also have Mr. Palic's testimony, such as it is, to contrary effect.
23The fourth assumption is not in question on the facts of this case. Although not specifically addressed in the evidence, given Mr. Palic's condition, it is inconceivable that he had either the ability or the opportunity to ingest alcohol after the collision and before the blood sample was taken.
24There is an issue with respect to at least two of the foundation facts upon which Ms. Gorczynski relied, both relating to time, namely the time of the collision and the time of the sampling. On the facts of this case, neither of those issues has any realistic impact on the Crown's case.
25With respect to the time of the collision, Ms. Gorczynski conducted her read-back calculation based on the assumption that Mr. Palic's driving was around 11:50 p.m. Mr. Dotsikas is correct in stating that there was no specific evidence that the collision took place precisely then, but, in most cases, and especially in this case, given the nature of the readings, no such precision is required. This is not a case, for example, such as a case in which bolus drinking is being argued, where the precise time of driving relevant to the time of the bolus ingestion might matter quite significantly, i.e. where a variance of five or ten or fifteen minutes might make the difference as to whether or not all of the alcohol had been absorbed at the time of driving. This is not a case where the availability of a presumption of identity is dependent on precise timing. It is not a case in which the blood alcohol concentration was 81 or 85 or 90 or 100.
26In any event, I am satisfied that the assumption that the driving took place at around 11:50 p.m. is fundamentally sound. I appreciate that Ms. Lall's time estimate of "around midnight" was just a guess, but the other evidence suggests it was a pretty good guess. The evidence from the police officers was that they received the emergency call at 11:51 p.m. By the time they arrived at 11:56 p.m. the paramedics were already on scene, working with Mr. Palic. The collision took place on one of the city's major arterial roads. It was by no means a minor "fender-bender" that might have gone unnoticed for long. Indeed, it got Ms. Lall's immediate attention and immediate response up on the fifth floor, as it did other people according to her testimony. Ms. Lall was not even the first person on scene. Mr. Palic's car had left the road, taken out a "one way" sign near the sidewalk, sheared off a fire hydrant and propelled the hydrant itself onto Islington Avenue, struck a hydro pole and pivoted. Mr. Palic, as described by Ms. Lall and Constable Janse, was clearly in significant distress, something that, on Ms. Lall's description, would have been evident to anyone within earshot, and according to her evidence she was far from alone around Mr. Palic's car.
27In some ways for good, in other ways less so, we have lived for many years in the age of the mobile phone. They are almost as omnipresent as oxygen itself. In an area such as this collision, on a main road, quite literally on the front lawn of a multi-storey apartment building, before midnight (we know it was before midnight because the responding officers got the call at 11:51 p.m. meaning the collision was some time before then), the idea that there would have been any material delay, indeed any delay of more than a few minutes most likely, between the collision and one or more members of the public calling it in to 911 is fanciful. This is not a matter of speculation, but rather a matter of reasonable inference from the known facts. While such a conclusion might vary from case to case depending on the location of the collision, the nature of the collision, the character of the surrounding area, the time of day and various other factors, on the facts of this case, the only reasonable inference in a mobile-phone world is that Mr. Palic's collision would have been called in to the emergency services within minutes of the collision itself. For all intents and purposes, the approximate foundational time of 11:50 p.m. used by Ms. Gorczynski is unassailable. Even if it is off by a few or ten minutes, or even substantially longer, given the readings involved no potential divergence from that time could make any material difference to the blood-alcohol calculations. Mr. Palic's calculated blood alcohol concentration was more than double the legal limit and, given the rate of elimination, the presumed time of the driving and collision would have to be off by several hours to make a material difference.
28With respect to the time of the sampling, I heard evidence about 12:45 a.m. and 2:08 a.m. 2:08 a.m. was the time provided to Ms. Gorczynski as the time of sampling. There is no doubt that she was given the wrong time to use in her read-back calculation. The parties are agreed that the relevant time is more in keeping with 12:45 a.m. and I think that is also an unassailable conclusion. Mr. Dotsikas makes the valid point that 12:45 a.m. is the time of delivery of the sample to the hospital lab rather than the actual time the sample was removed from Mr. Palic's body. Constable Boniface failed to note that more relevant time. However, given that Mr. Palic arrived at the hospital at 12:28 a.m., the gap between the two times is very small, at most seventeen minutes. The gap between the actual sampling and the time provided to Ms. Gorczynski for her calculations, however, is more substantial, adding a further one hour and twenty-three minutes to the discrepancy. That being said, however, I am satisfied that the cumulative effects of those divergences, along with any divergence in relation to the precise time of the collision, remains immaterial to the ultimate issue, namely whether or not Mr. Palic's ability to operate a motor vehicle was impaired by alcohol at the time of the collision. That conclusion is specific to the facts of this case and takes into account Mr. Palic's blood alcohol reading, the time discrepancies in issue and what is now accepted as scientific and legal truth in relation to the rate of elimination.
29Mr. Palic's blood alcohol concentration in the blood sample taken some time between 12:28 and 12:45 was 191 mg of alcohol in 100 ml of blood (when converted from the serum alcohol reading). Ms. Gorczynski's read-back calculation from 02:08 a.m. to the presumed time of driving of 11:50 p.m. provided a blood alcohol concentration of between 194 and 237 mg of alcohol per 100 ml of blood. If I take the maximum possible discrepancy in the sampling time (i.e. from the very minute of Mr. Palic's arrival at the hospital to the erroneous time provided to Ms. Gorczynski), that amounts to one hour and forty minutes. Even if I assume that there was a twenty-minute discrepancy between the time provided to Ms. Gorczynski as the time of the collision (11:50 p.m.) and the actual time of the collision (a discrepancy of that length in these circumstances striking me as extremely implausible on these facts), the total discrepancy amounts to two hours. When I consider what is scientifically and legally accepted in relation to the plateau and the rate of elimination, the maximum possible divergence, assuming the full two hours in Mr. Palic's favour and assuming that the time discrepancies all work in his favour rather than against him (which I do not even have to address on the facts of this case), the maximum possible divergence in blood alcohol concentration is 40 mg/100 ml of blood. In order to bring Mr. Palic down to the level that would be lawful under an "over 80" charge (which I stress is not the charge before me), that discrepancy would have to be over 110 mg/100 ml of blood and in order to bring it below the point at which the uncontradicted scientific evidence in this case proves significant impairment of ability to drive, that discrepancy would have to be over 140 mg/100 ml of blood. The only rational conclusion on the record before me is that Mr. Palic's blood alcohol concentration was in the mid-100s (perhaps higher) and that a blood alcohol concentration in that range (or even well below it) on Ms. Gorczynski's evidence demonstrates alcohol-induced impairment of one's ability to drive.
30There is nothing creative or revolutionary in these findings. This is a criminal prosecution and the burden is on the Crown to prove its case beyond a reasonable doubt. The existence of any reasonable doubt inures to Mr. Palic's benefit. It is never a court's function to minimize or paper over any material shortcomings in the prosecution's case, no matter how serious the allegations. It is also not within a court's purview to make any sort of evidentiary leap that is not justified on either the record or the jurisprudence. At the same time, it is no part of a court's function to perceive gaps where none exists. In the circumstances of this case, these are not complicated or controversial matters. It is, quite simply, arithmetic. If Mr. Palic's blood alcohol concentration were significantly different, there might be room for doubt, but there is none here. It is only by artifice that I could find that any of the timing issues has any potential to change the lawful outcome of this case and drink-driving cases are an area of the law where less artifice is called for rather than more.
31With the exception of the incorrect sample time provided to Ms. Gorczynski, which is ultimately irrelevant, I am satisfied that the science and methodology underlying the Crown's case is beyond reproach. The fact that the sample here was blood rather than breath means nothing since the methodology for serum analysis was explained and proved. There is no issue on the evidence before me about the rate of elimination applying differently in one case rather than the other; indeed Ms. Gorczynski's report speaks of the rate of elimination in exactly the same terms, which makes sense since the rate of elimination is a metabolic process within the body before sampling of either type is conducted. While Mr. Dotsikas spoke of "public policy" issues in relation to a scientist defining impairment of driving ability as becoming significant at a blood alcohol concentration of 50mg/100 ml of blood, I see no such issue. Parliament has defined various drink-driving offences: impairment itself, driving with an excess blood alcohol concentration and refusing to provide a sample. Each of these is part of an essential whole. The offences might well overlap. The fact that they can overlap as a result of the scientific evidence does not create a public policy issue, since the offences always had the potential to overlap.
32It bears keeping in mind precisely what an impaired driving charge involves. As stated by Archibald, J. in R. v. Chan, 2011 ONSC 4352:
[12] Where there is evidence that can support a finding that a person's ability to perform complex tasks, such as driving, was reduced, combined with evidence that he or she consumed some alcohol, it is open to the trier of fact to conclude that the driver's ability to drive was impaired by the consumption of alcohol: R. v. Kumric, [2006] O.J. No. 4886 at para. 26 (S.C.). As provided by the Court of Appeal in Bush"[s]light impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road" at para. 47.
33It has been commonplace for impaired driving cases to be proved from external observations by police officers or members of the public of behaviour that Ms. Gorczynski would define as manifestations of intoxication, such as slurring, stumbling, etc. or of inability to maintain proper driving even in unchallenging environments. The fact that that has been a common method of proving such charges in no way means that it is an exclusive or even a preferred method. If the science of blood alcohol concentration and toxicological experience confidently demonstrates, as it does on the evidence before me, that at a blood alcohol concentration of 50 mg/100ml of blood, impairment in driving ability is well established, that is at least as good a means of proof as the alternative, perhaps better than the traditional alternative. Of course, neither means of proof has any claim to a monopoly. All that is different here from the "routine" case is the evidence upon which the Crown relied to prove the allegation of impairment by alcohol, namely the scientific evidence of Ms. Gorczynski, which is compelling and which speaks directly to the focus set out by Archibald, J. in the previous paragraph. It may be that in other cases, contrary opinions will challenge, refine or give nuance to what has been presented here, but on the evidence before me to find otherwise than that Mr. Palic's ability to drive was impaired by alcohol at the time of the collision would be perverse. This is not "theoretical" impairment as Mr. Dotsikas characterized it; rather, it is scientific proof of impairment and, as long as courts remain vigilant to the dangers of flawed science or methodology and do not allow themselves to fall into thrall by overconfident or irresponsible scientists as has tragically happened from time to time, it would be folly to decline to follow valid science when it is relevant and convincing, as is the case here.
Conclusion
34I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Palic was operating a motor vehicle while his ability to do so was impaired by alcohol.
Released: 10 December, 2015
Footnotes
1In support of this reasoning, the Crown relied on an earlier decision of my own: R. v. Chan, [2010] O.J. No. 6119, involving a far less spectacular collision. That decision was upheld on appeal: R. v. Chan, 2011 ONSC 4352 (Archibald, J.). The same line of reasoning as Chan was followed independently by H. Borenstein, J. in R. v. Bonifacio, 2010 ONCA 122.
2See, for example, R. v. Bonifacio, [2013] O.J. No. 586 (H. Borenstein, J.)(O.C.J.); R. v. Lessel, [2012] O.J. No. 6482 (F.L. Forsyth, J)(O.C.J.).
3The desired level of artifice in legal matters being nil.
