Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Gabriel Tanjangco
Before: Justice Paul F. Monahan
Heard on: July 17, 18, 19 and 26, 2017
Reasons for Judgment
Released on: August 30, 2017
Counsel:
S. Scully for the Crown
C. Tarach for the defendant Gabriel Tanjangco
MONAHAN J.:
Introduction
1Gabriel Tanjangco is charged with having operated a motor vehicle while his blood alcohol level was over 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code of Canada (the "Code"). He is further charged with having the care or control of a motor vehicle involved in an accident and, with intent to escape civil or criminal liability, failed to stop his vehicle and give his name and address contrary to section 252 of the Code.
2The trial evidence was heard on July 17, 18 and 19, 2017. Final argument was heard on July 26, 2017.
3The defendant brought an application at trial alleging violations of sections 7, 8, 9 and 10 of the Canadian Charter of Rights and Freedoms (the "Charter") and seeking the exclusion of evidence (breath samples and statements) pursuant to s. 24(2) the Charter. In final submissions, the section 7 argument was abandoned.
4The defendant made a number of statements to police, particularly on the breath room video. He put the Crown to the proof of the voluntariness of those statements. Ultimately, in final submissions, voluntariness was conceded.
5On consent, the Charter application, the voluntariness voir dire and the trial proper were heard on a blended basis.
6The Crown called 5 witnesses at trial: a civilian witness, Mr. Jorge Lazcano-Pizarro ("Mr. Lazcano"); Officer Shawn Feasby (the arresting officer); Officer Jocelyn Hilts (who assisted at the scene); Officer Murray Wood (the breath technician); and Dr. Michael Corbett (an expert in toxicology).
7The defendant testified. His evidence was tendered on the Charter application, the voluntariness voir dire and the trial proper.
Chronology
8Based on my consideration of the evidence and my determination of a number of contested factual issues, I find that the chronology of this matter is as follows:
11:25 to 11:30 PM – This is the approximate time of the accident involving a collision between Mr. Lazcano's vehicle and Mr. Tanjangco's vehicle. Mr. Lazcano turned left in front of Mr. Tanjangco's vehicle when Mr. Tanjangco had a green light. Mr. Lazcano spoke to the defendant at the scene and smelled alcohol on him. They exchanged cell phone numbers.
11:30 PM or slightly later (11:32-33 PM) – The defendant leaves the scene of the accident.
11:34 PM – A tow truck driver arrives on scene and calls the police.
11:37 PM – The police radio call indicating an accident in which one of the drivers has left the scene.
11:40 AM – After a couple of tries, the tow driver reaches Mr. Tanjangco and tells him the police are coming and that he needs to return to the scene. According to Mr. Lazcano, the tow driver phoned the defendant right after calling police. I accept Mr. Lazcano's evidence in this regard as more in keeping with my overall assessment of the timeline. I reject Mr. Tanjangco's evidence that this call happened at 11:50 PM.
11:53 PM – The tow truck driver calls the police back to advise that the driver has returned and is intoxicated.
11:53 PM – Mr. Tanjangco is back on the scene by no later than this time.
12:00 AM approximately – Constable Hilts arrives on the scene first.
12:03 AM – Constable Feasby arrives on scene. Constable Shambry arrives shortly thereafter, at approximately 12:04 to 12:05 AM.
12:03 AM – Also at around this time a police officer (likely Officer Shambry) speaks to the defendant who advises the officer that he was involved in the accident. He is told to "stay put". He waits with two friends at a nearby gas station.
12:03-12:10 AM – Mr. Lazcano's vehicle is removed from the roadway.
12:10-12:12 AM – Constable Feasby speaks to Mr. Lazcano.
12:13 AM – Constable Feasby speaks to the defendant and smells alcohol on his breath.
12:15 AM – Constable Feasby makes an ASD demand on the defendant.
12:16-12:17 AM – The accused tells the officer that he has no grounds to require him to blow.
12:17 AM – The defendant blows into the ASD and registers a fail.
12:18 AM – The defendant is placed under arrest for excess blood alcohol.
12:18-12:20 AM – The accused is handcuffed and searched and placed in the rear of the police vehicle.
12:21-12:23 AM – The arresting officer begins reading rights to counsel to the defendant. There is a disputed issue here. The defendant says that he was not told of the availability of a free lawyer during his initial rights to counsel. Defence counsel argues that Officer Feasby has fabricated his notes to put answers of the defendant beside the questions he was allegedly asked as part of the rights to counsel process. He argues that it is uncontested that he was keen to take advantage of the free lawyer when he was told about it back at the station. It is clear to me that the defendant is wrong on this point. Officer Feasby had detailed notes of the rights to counsel. There would be no reason not to use his typed written rights to counsel notes when he was giving rights to counsel to the defendant. Further, the defendant testified that Officer Feasby "gave me all these options... like legal aid… it was a little over my head". In my view, this evidence helps demonstrate that, upon arrest, the arresting officer clearly read him the proper rights to counsel including the possibility of "free advice from a legal aid lawyer". There was no defect in the informational component of the rights to counsel. At the end of the rights to counsel process, when the defendant was asked if he wished to call a lawyer he answered "not at this moment, no".
12:24 AM – An approved instrument demand is made.
12:23-12:34 AM – Officer Feasby admitted that at some point he asked the defendant a number of questions from a pre-printed form including questions regarding the defendant's employer, nationality, racial origin, port of entry, height and weight all of which the defendant gave responses to. The responses he gave were not tendered as evidence at trial. The defendant says that he was asked these questions while he was in the back of the cruiser after rights to counsel and caution but before they had cleared the scene and left for the station. Officer Feasby did not remember when he asked these questions. Based on the largely unexplained eleven minute time period between 12:23 AM and 12:34 AM; Officer Feasby's evidence that he was unclear as to when he asked these questions; my assessment of the overall chronology of the balance of the arrest; as well as the testimony of the defendant, I conclude that this information was sought from the defendant during this time period. It took place after rights to counsel and caution were given while the defendant was still in the cruiser at the scene.
Also during the same time frame, the defendant, without being asked any questions in this regard, was adamant that Officer Feasby note that the defendant had gone home after the accident and had a drink at home and then walked back to the accident. The defendant denies saying he drank at home but I accept Officer Feasby's evidence in this regard.
12:34 AM – The arresting officer and the defendant leave the scene.
12:44 AM – The arresting officer and the defendant arrive at the police station.
12:47 AM – The arresting officer repeats rights to counsel and this time the defendant indicates that he wishes to speak to the "free lawyer" namely the duty counsel.
12:48 AM – The arresting officer calls duty counsel and leaves a message.
12:54 AM – Duty counsel calls back and a private consultation occurs between duty counsel and the defendant.
1:03 AM – The defendant uses the bathroom.
1:08 to 1:20 AM – Officer Feasby gives grounds to the breath technician Officer Wood. The breath technician suggests that a fail to remain charge should be laid and Officer Feasby agrees and informs the defendant of the new charge.
1:21 AM – On being informed of the new charge, the defendant is offered another opportunity to speak to duty counsel and given a further caution that he does not need to say anything.
1:25-1:28 AM – A further consultation occurs with duty counsel who is a different duty counsel than the one involved with the first consultation.
1:29 AM – The breath room video begins. Rights to counsel are again provided to the defendant. He is also given a primary caution plus a secondary caution. The defendant says that he would like to make a statement.
1:39 AM – The first breath sample is provided and registers 180 mg of alcohol in 100 ml of blood.
1:40 AM – The defendant is advised that he will be asked a number of questions which are voluntary and that he does not need to answer them. He responds to the questions and provides information including that he was operating a motor vehicle. He says that he had one shot of Johnny Walker Black whiskey after the accident as well as one sip of beer. He says this occurred at the restaurant Wild Wings. He says he was gone from the accident for a total of 20 minutes. He says that he had not been drinking anything at all before the accident and only drank at Wild Wings as indicated above.
2:01 AM – A second breath sample is provided which registers 170 mg of alcohol in 100 ml of blood.
2:08 AM – Breath room video ends.
2:24 AM – The service of the certificate and notice of intent to produce certificate is done.
2:46 AM – A friend of the defendant is phoned in order to have him arrange to come and get the defendant.
3:30 AM – The defendant is released into the care of the friend who was called.
Issues
9Based on the evidence heard and the arguments advanced by the Crown and the defence, the following issues arise in this case.
Issue 1 – Did Officer Feasby have the proper grounds to make an approved screening device demand?
Issue 2 - Were any of the defendant's section 8, 9 or 10 Charter rights violated? If so, should any evidence be excluded pursuant to s.24(2) of the Charter?
Issue 3– Has the Crown proved beyond a reasonable doubt that the defendant operated 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 s. 253(1)(b) of the Code?
Issue 4 - Has the Crown proved the section 252 charge beyond a reasonable doubt?
10I will examine each issue in turn.
Issue 1 – Did Officer Feasby have the proper grounds to make an approved screening device demand?
11It was submitted that Officer Feasby did not have the proper grounds to make the ASD demand or, alternatively, failed to turn his mind to the residual mouth alcohol issue.
12Section 254(2) of the Code provides in part as follows:
If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person…:
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
13The defence submits that the officer did not have proper grounds to make an ASD demand. I disagree with this submission. It is clear that Officer Feasby smelled alcohol on the breath of the defendant. In my view, this was sufficient to give him a reasonable suspicion that the defendant had alcohol in his body (see R. v. Lindsay, 134 C.C.C. (3d) 159 at para. 2). Further, the officer had information from the driver of the other vehicle (Mr. Lazcano) that the defendant had been driving within the previous three hours. Finally, he turned his mind to the residual mouth alcohol issue and had reason to believe that there had been no consumption of alcohol within the previous 15 minutes. For a discussion on the requirements concerning residual mouth alcohol see R. v. McGauley, [2015] O.J. No. 1659. Finally, the fact that the defendant said that he drank after the accident did not undermine the officer's reasonable suspicion under s. 254(2). The officer was not obliged to accept the defendant's explanation. In Lindsay, supra at para 2, the Ontario Court of Appeal said that "the fact that there may be an explanation for the smell of alcohol does not take away the fact that there exists a reasonable suspicion within the meaning of the section".
14Accordingly, in my view, Officer Feasby had the required grounds to make the ASD demand which ultimately led to the fail result which in turn supported the approved instrument demand under 254(3).
Issue 2 - Were any of the defendant's section 8, 9 or 10 Charter rights violated? If so, should any evidence be excluded pursuant to s.24(2) of the Charter?
15There are a number of sub-issues within this issue. I will consider each in turn.
(i) When was the defendant detained?
16The defence argues that the defendant was detained at approximately midnight when he was asked by a police officer (likely Officer Shambry) if he was involved in the accident. He apparently answered "yes" and he said he was told to "stay put". He said that he went and stood on a grassy area at a nearby gas station with two friends of his. He said he complied with the police requests to "stay put" because "I felt as if I had to".
17In my view, the defendant was not detained until Officer Feasby smelled alcohol on his breath at approximately 12:13 AM. He was not detained, physically or psychologically, as he stood on the grassy area at the gas station with his two friends. Clearly, he was not physically detained at that time. Psychological detention occurs where a reasonable person would conclude that he or she was not free to go and had to comply with the police direction. As the Supreme Court of Canada explained in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras 35-38, where police approach persons involved in a 911 call or an accident or a crime and are in the process of gathering investigatory information, the persons who the police speak to are not necessarily detained even if the police, in taking control of the situation "effectively interfere with an individual's freedom of movement". Obviously, the court in assessing the question of detention must look at all of the circumstances. In this case, there is no evidence that the officer who told the defendant to "stay put" even knew that the defendant was the driver of the vehicle as opposed to simply being in one of the vehicles that was involved in the accident. Further, the defendant was off on his own with his friends waiting to speak to the police. A reasonable person would know that they were not detained. A reasonable person might believe that it would be unwise to leave given their involvement in the accident but they would not reasonably believe that they were detained.
(ii) Section 10(a)
18When Officer Feasby approached the defendant at 12:13 AM, the officer's evidence, which I accept, was that the defendant reached out his hand to shake the officer's hand but that the officer declined. This was also what the defendant testified to. The officer said he immediately smelled alcohol on the breath of the defendant and this led the officer to make the ASD demand at 12:15 AM. In my view, the defendant was clearly detained at the point when the officer smelled alcohol on his breath.
19Officer Feasby made the ASD demand but he did not expressly advise the defendant that he was detaining him on suspicion of a drinking and driving offence. The question arises as to whether this was a violation of s. 10(a) of the Charter which provides that "everyone has the right on arrest or detention to be informed promptly of the reasons therefor." The Supreme Court of Canada has said that a court, in considering whether there has been section 10(a) violation, should look at "the substance of what the accused can reasonably be supposed to have understood, rather than the formulism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b)" (see R. v. Evans, [1991] 1 S.C.R. 869 at 888).
20In this case, notwithstanding the testimony that the reasonable suspicion was formed at 12:13 AM, I am satisfied that the demand said to been made at 12:15 AM was made forthwith once the officer formed the suspicion under s. 254(2). The officer needed to get out his book from which he read the ASD demand language and there was no break between the forming of the suspicion and the time he took to make the demand. Further, in my view, the words of the ASD demand itself explained to the defendant why he was detained. Those words included the following "I demand you provide a sample of your breath into an approved screening device to enable a proper analysis to be made in that you accompany me now for this purpose of taking the sample. Do you understand?" I note that in response to this demand the defendant responded to the officer that he did not have grounds to make the demand. It would have been better if the officer had simply said to the defendant that he was detaining him on suspicion of a drinking and driving offence and then read the words of the ASD demand. However, I am satisfied that in the circumstances of this case, the making of the ASD demand itself made it plain to the defendant as to why he was detained and there was no breach of section 10(a) of the Charter. If I am wrong, and there was a failure to comply with section 10(a) because the officer did not expressly tell the defendant that he was being detained as part of a drinking and driving investigation, it was a minor violation at best and would not, by itself lead to the exclusion of evidence under s. 24(2).
(iii) Section 10(b) rights to counsel
21Defence counsel argued that the defendant was detained at 12:01 to 12:03 AM and should have been given his rights to counsel at this time. I have already concluded for the reasons set out above that the defendant was not detained until approximately 12:13 AM.
22The defence argued, in the alternative, that if the defendant was detained at 12:13 AM that he should have been given rights to counsel at this time. I disagree. Once Officer Feasby smelled alcohol on the defendant's breath and had information that he was the driver of the vehicle involved in the accident, he could make the ASD demand and he did so at 12:15 AM. When the demand is made forthwith in accordance with provisions of s. 254(2), the obligation to give rights to counsel is suspended (see R. v. Quansah, 2012 ONCA 123, [2012] O.J. No 779 at paras 22-23). As I have already indicated, the 12:13 AM smelling of alcohol on the breath of the defendant was followed immediately by the ASD demand at 12:15 AM. The requirements of s. 254(2) were met in this case including the requirement that the demand be made forthwith. Accordingly, it was not necessary to give rights to counsel at 12:13 AM. It was further argued that the rights to counsel given upon the defendant's arrest were defective as there was allegedly no reference to the 1-800 number or the potential for a "free" legal aid lawyer. I have already rejected this argument as factually incorrect for the reasons outlined above. I repeat that there was no violation of the informational component of the rights to counsel.
23In final argument, the Court raised with both counsel whether there may have been a violation of the right to counsel by the questioning of the defendant after rights to counsel and caution were given but before there was an opportunity to consult counsel. Defence counsel submits that there was. In my view, having considered the point further, there was in fact no such breach.
24As explained in the chronology, after the defendant received rights to counsel and caution from Officer Feasby, the defendant was asked if he understood and he said that he did. He was asked if he wished to call a lawyer at that time and he said "no, not at this moment".
25Immediately after the arrest and rights to counsel and caution, I have accepted that the defendant was asked by Officer Feasby, among other things, questions about his employer, his nationality, his racial origin, the port of entry into Canada and his weight. The Crown did not seek to tender at trial the answers that the defendant gave to these questions. The defence argued that it was a violation of the right to counsel to be asked these questions before he had had an opportunity to consult counsel. As indicated above, this point was raised by the Court in final argument.
26In R. v. Owens, 2015 ONCA 652, 127 O.R. (3d) 603 leave to appeal to the S.C.C. refused [2015] S.C.C.A. 481, the trial judge had ruled that an accused person who said "no, not right now" when asked if he wished to call a lawyer had not invoked his right to counsel. The Court of Appeal upheld this finding as within the purview of the trial judge in that case. The Court of Appeal stated that the duty to provide a reasonable opportunity to consult counsel and for police to refrain from soliciting evidence does not arise until the accused invokes his right to counsel (see Owens supra at paras 22 to 31).
27In this case, the defendant was given proper rights to counsel. When asked if he wished to consult counsel, he said "no, not at this moment". In my view, the words used by the defendant in the circumstances of this case did not amount to the invocation of his rights to counsel. Therefore, the subsequent questioning by the arresting officer was not a breach of the defendant's rights to counsel. Having said that, let me be clear that I do not understand why the defendant would be asked such questions as his "racial origin". There was no argument by either counsel as to the appropriateness or not of this question but, in my view, the question was improper. Officer Feasby was apparently reading from some standard form document in soliciting this information. If I considered that the arresting officer's investigation and arrest of the defendant was in any way motivated by the defendant's race, which I do not, this would be a very different case. I note as well that the defence did not argue that the investigation and arrest in this case was racially motivated nor did the defendant's counsel raise any issue with respect to substance of the questions asked including one of the questions that I have identified as improper.
28To summarize on the Charter issues, there was no violation of sections 8, 10(a) or 10(b) of the Charter. The defendant also raised an alleged violation of section 9, apparently on the basis of an alleged over-holding or an arrest without proper grounds. The over-holding argument was not pursued in final argument. To be clear, I see no basis for the section 9 argument. The officer had proper reasonable and probable grounds to make the arrest and further, there was no over-holding in my view.
Issue 3– Has the Crown proved beyond a reasonable doubt that the defendant operated 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 s. 253(1)(b) of the Code?
29The breath samples were taken outside the two hour window and therefore the presumption of identity under section 258(1)(c) does not apply. Accordingly, the Crown had to rely upon the evidence of a toxicologist, Dr. Michael Corbett, to seek to prove whether the defendant was over 80 at the estimated time of driving of 11:25 to 11:30 PM.
30As indicated in the chronology above, a truncated reading of 180 mg of alcohol in 100 ml of blood was obtained at 1:39 AM; and a further truncated reading of 170 mg of alcohol in 100 ml of blood was obtained at 2:01 AM.
The Toxicologist's evidence
31On consent, Dr. Corbett was qualified as an expert toxicologist and he gave expert evidence in the area of toxicology. He testified to a "read back" opinion as to the amount of alcohol in the defendant's body (known as Blood Alcohol Content or "BAC" – this is the number of mg of alcohol in 100 ml of blood) at the approximate time of driving between 11:25 PM and 11:30 PM. Based on the truncated BAC reading of 170 mg of alcohol in 100 ml of blood at 2:01 AM, Dr. Corbett gave the opinion that the defendant had between 175 and 222 mg of alcohol in 100 ml of blood in his body between 11:25 PM and 11:30 PM.
32Dr. Corbett's opinion was based on the usual four assumptions in a toxicologist's BAC read back opinion (see R. v. Paszczenko and R. v. Lima, 2010 ONCA 615, 103 O.R. (3d) 424 at para. 2). There was a plateau assumption and a rate of elimination assumption. The case law indicates that the Court can take judicial notice of those two assumptions (see Lima, supra at para. 62) and the Court does so in this case. The two further assumptions were that there was no significant consumption of alcohol just prior to the time of driving and no consumption of alcohol after the time of interest and before the breath samples were taken. There was no issue in this case concerning possible consumption of alcohol just prior to the time of driving. The Court can draw the "common sense inference" that there was no significant drinking just prior to the time of driving and the Court does so in this case. The only issue on the toxicologist's assumptions was whether or not the Crown had proved the assumption concerning no consumption of alcohol after the time of interest or whether the Crown had proved a modified version of that assumption as testified to in the various further scenarios that Dr. Corbett gave an opinion on.
33Dr. Corbett expanded upon his opinion and dealt with various scenarios assuming there was consumption of alcohol after the time of driving and before the breath samples with a particular focus on the approximate 20 minute period of time from 11:30 PM to 11:50 PM.
34Dr. Corbett gave the opinion that a 24-year-old person, 5'7" and 140 pounds would have the following BAC readings in the circumstances set out below:
(i) such a person with a BAC of zero at 11:25 PM to 11:30 PM who drank 1.5 ounces of 40% alcohol by volume and two ounces of beer (6% alcohol) from 11:30 PM to 11:50 PM would have a BAC of zero mg to 14 at 2:01 AM;
(ii) such a person with a BAC of 80 from 11:25 PM to 11:30 PM who drank 1.5 ounces of 40% alcohol by volume and two ounces of beer (6% alcohol) from 11:30 PM to 11:50 PM would have a BAC of 68 to 94 at 2:01 AM;
(iii) in order for such a person with a BAC of 80 from 11:25 PM to 11:30 PM to have a BAC of 170 at 2:01 AM, he would have to drink at least 5.7 ounces of 40% alcohol by volume or 38 ounces of beer (6% alcohol) between 11:30 AM and 11:50 PM (assuming no other drinking post-accident);
(iv) in order for such a person with a BAC of 70 from 11:25 to 11:30 PM to have a BAC of 170 at 2:01 AM, he would have to drink at least 6.2 ounces of 40% alcohol by volume or 41 ounces of beer (6% alcohol) between 11:30 AM and 11:50 PM (assuming no other drinking post-accident).
35Dr. Corbett testified as to the impact of weight on the above scenario opinions. He said that the weight of the defendant did not matter for his original read back opinion. It did matter for the underlying assumptions concerning post-incident drinking in the above scenarios. Dr. Corbett said that the precise weight of the defendant was not required. For example, if the defendant was not 140 pounds but was in fact only 130 pounds (7 to 8% less in weight) then he would have to drink 7 to 8% less in the above scenarios. For example, in the third scenario above, the defendant would only have to drink 5.24 ounces of alcohol or 35 ounces of beer. If the person were 10 pounds more (150 pounds) he would need to drink 6.1 ounces of alcohol or 40 ounces of beer for the same result to occur.
The Defendant's evidence as to consumption of alcohol
36The defendant testified that earlier in the day on the day of the accident he was in Oakville helping friends move into a new condominium. He said that he had had a few beers during that time. When asked how many beers he had had, he said "I can't recall". When asked further when he had started drinking earlier in the day before the accident, he again gave the same answer namely that he could not recall.
37The defendant testified that the accident was at 11:25 PM and that he had left the scene by 11:30 PM. He said that he was on his way to meet friends at a restaurant/bar called Wild Wings which was close by the scene of the accident. A google map marked as an exhibit at trial showed that Wild Wings was about 750 metres away from the scene of the accident. He said that after he left the accident he drove immediately to Wild Wings and that he was in the restaurant with his friends and consuming alcohol by 11:31 PM. He said that his friends had already ordered alcohol for him. There were shots on the table. He said he drank 3 or 4 shots of Johnny Walker Black (40% alcohol) by 11:35 PM and that he consumed 2 large glasses of beer "fairly quickly" and he had finished them by 11:50 PM. He said he got a call from the tow truck driver at 11:50 PM telling him to return to the scene. He then took another shot of the Johnny Walker Black and left the bar and made it back to the scene within 2 minutes. He said he ran there. He said that he had consumed the amounts described above because he was shook up by the accident and wanted to catch up to his friends in terms of the drinking.
Discussion and Analysis
38The defence submits that the defendant's story regarding consumption of alcohol is true or at least raises a reasonable doubt concerning the Crown's ability to prove the over 80 charge. The defendant submits that the WD framework applies to the case at bar and the Court accepts that proposition. The defendant submits that the Crown has not proved the assumption in Dr. Corbett's report of no consumption of alcohol after the accident and before the breath samples.
39As explained above, Dr. Corbett modified his "no consumption of alcohol" opinion to consider the possibility that there was consumption of alcohol between 11:30 PM and 11:50 PM.
40The concept of "bolus drinking" normally refers to the concept of the rapid consumption of large amounts of alcohol just prior to the time of interest (see Lima, supra at para 2). The Ontario Court of Appeal has stated that a 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. As I say, this was referring to the possibility of drinking just prior or right at the time of driving. In my view, a Court can also infer, depending on the circumstances, that a person will not normally drink large amounts of alcohol very quickly post-driving as well (see R. v. St. Onge Lamoureux, 2012 SCC 5, [2012] S.C.J. 5 at para. 174 (per Cromwell J. (dissenting in part but not on this point))). Of course, some people will drink large amounts of alcohol both pre and post-driving and the circumstances of each case must be considered.
41The 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" (see Lima supra at paras 31-32). 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 supra at para 37). In my view, the position is the same with respect to the rapid consumption of alcohol immediately post-driving. There is a "practical evidentiary burden" on the accused, not to persuade or convince the trier of fact that there was bolus drinking post-driving but to point to something in the evidence to put the issue in play. The onus remains on the Crown to prove the no bolus drinking both pre and post-driving beyond a reasonable doubt.
42There is some authority in the case law that the underlying assumptions in an expert's report such as this one only need to be proved on a balance of probabilities rather than beyond a reasonable doubt (see R. v. Saul, [2015] B.C.J. 672 (B.C.C.A.) at para. 37). I am prepared to assume for the purposes of this case that the assumption regarding no consumption of alcohol post-driving or some modified version of that assumption must be proved beyond a reasonable doubt. Accordingly, for the Crown to succeed on the over 80 charge they must prove beyond a reasonable doubt that the defendant did not consume approximately 5.7 ounces of alcohol (40% by volume) or 38 ounces of beer (6% alcohol by volume) between 11:30 PM and 11:50 PM. If he did consume the equivalent amount of alcohol or has raised a reasonable doubt about it then the Crown would not have proved beyond a reasonable doubt that he was over 80 at the time of driving. If the Crown establishes beyond a reasonable doubt that the defendant did not consume that approximate amount of alcohol then in order to have a BAC reading of 170 mg of alcohol in 100 ml of blood at 2:01 AM, he would have had to have had a BAC of over 80 at the time of driving and therefore be guilty of the offence in question.
43Turning to the facts of this case, the defendant has met the practical evidentiary burden to put the prospect of significant post-driving drinking into play. He has done this by his own testimony saying that he engaged in such drinking. The Crown must prove a negative in this case namely that the defendant did not consume approximately 5.7 ounces of alcohol or 38 ounces of beer (or some equivalent combination of the two) from 11:30 to 11:50 PM addressed in the third scenario in Dr. Corbett's evidence.
44In my view, defendant's evidence regarding his post-accident drinking is a fabrication and I do not believe it nor am I left in a reasonable doubt about it. Let me explain why.
45First, the defendant told three different versions of his post-accident drinking. He told Officer Feasby that he drank at home after the accident. I am aware that the defendant denies telling the officer that he told the officer this but I am satisfied that he did. The Officer had a note of it and the defendant was more than willing to lie to police regarding his drinking as is clear from his statements to Officer Wood. He told Officer Wood that he had nothing to drink before the accident, a lie he now admits to. He told him further that he had only 1.5 ounces of liquor and a sip of beer after the accident (at Wild Wings), a proposition he now says was a lie. As Dr. Corbett points out, if he drank nothing before the accident and drank only 1.5 ounces of liquor and a sip of beer after the accident, his BAC would be from zero to 14 at 2:01 AM, not the 170 that it was. He has now testified at trial to a third version of events which just happens to approximately match the exception in Dr. Corbett's report that would permit the defendant to have a legal BAC of 80 at 11:25 PM and still have a BAC of 170 at 2:01 PM. It is clear to me that the defendant is not to be believed when he refers to his post-accident drinking. His evolving and changing stories support this view. It is clear to me that his trial evidence is a fabrication designed to bring him within the exception in Dr. Corbett's report.
46Second, if the defendant's pre and post-accident drinking pattern that he testified to at trial were true, it would have been the perfect defence namely that he had had a modest amount to drink ("a few beers") before the accident and the driving, but that he had consumed a large quantity of it alcohol (4 to 5 shots and two large glasses of beer) after the accident and the driving. Obviously, he had no obligation to say anything to the officers. However, he was adamant in this case that he wanted to and he did tell the officers that he only had one shot and a sip of beer after the accident. If his trial evidence regarding his consumption of alcohol were true namely that he had consumed only a modest amount of alcohol prior to driving and a large amount of alcohol after the accident/driving as he now says he did, there would be no reason to lie and tell the officers that he had hardly had anything to drink at all that day. There would be no reason not to tell this new version of events to the officers when he was explaining his post-accident drinking because this would be a complete answer to the over 80 charge and he would know that at the time. Instead, he made up a poorly thought out story about no drinking before the accident and a small amount of drinking after the accident. Further, I note that the defendant also admits that one of the reasons he did not want to get the police involved at the time of the accident was because he did not want the police to know that he had been drinking and driving. If it were true that he only had a "few beers" before the accident, he would have little to worry about.
47Third, for reasons which I will explain below, I have found that the defendant is not guilty of the s. 252 charge. However, also for reasons explained below, I find that he did not give his name and address to Mr. Lazcano before he left the scene and that his trial evidence otherwise is another example, at a minimum, of Mr. Tanjangco's less than accurate recollection of events and, at worst, is another example of his less than truthful trial testimony. In any case, it undermines his reliability (at a minimum) and, potentially undermines his credibility further.
48Fourth, apart from the inconsistencies between the defendant's trial evidence and his versions of his pre and post-accident drinking given to the two police officers, his trial evidence is internally inconsistent and an obvious fabrication simply looking at the facts testified to on their face. In this regard, I note the following:
(a) The defendant testified that he was at Wild Wings drinking by 11:31 PM. Even with the accident taking place at 11:25 PM, he could not have left the scene before 11:30 PM and he could not be in Wild Wings drinking 1 minute later. Wild Wings is located 750 metres away from the accident. It would take him at least 3 to 5 minutes to drive to the restaurant; park his car and walk into the restaurant to find his friends. Further, the suggestion that his friends had already ordered alcohol for him and that it was on the table is another clear fabrication in my view designed to maximize the available time for drinking in this newly developed version of events.
(b) The defendant cannot remember how many beers he had or when he started drinking before accident except that he does remember it was only a "few beers" but he has an almost perfect recollection of his post-accident drinking pattern that permits him to recall with precision the number of drinks consumed and virtually the exact times they were consumed. His ability to recall only the points that assist him (post-driving drinking) but to have only a vague recollection of the evidence from the same day that has the potential to undermine his case (the pre-driving drinking) is an obvious fabrication.
(c) The defendant testified that he got a call from the tow truck driver at exactly 11:50 PM and then drank a further shot and ran 750 metres back to the scene of the accident in 2 minutes. We know from the police log marked as exhibit 3 at trial that he was back at the scene by 11:53 PM. In my view, he could not possibly remember the exact time of the tow driver's call nor could he cover 750 metres on foot in 2 minutes having consumed the amount of alcohol he says he did.
(d) There was very little time for the defendant to do anything let alone race to Wild Wings; rapidly consume a large amount of alcohol in a short time; and then literally run back to the scene of the accident. In this regard, the timeline was even tighter than the defendant said in his evidence. Accepting that the accident was at 11:25 PM, the defendant must have left the scene by 11:30 PM or slightly later (11:32-33 PM). The tow driver was on the scene at 11:34 PM. Mr. Lazcano estimated, and I accept as approximately correct, that the tow driver was calling police within three minutes after the defendant had left. This makes sense as the police radio call was at 11:37 PM. Mr. Lazcano said that the tow driver was calling the defendant right after that (i.e. speaking to the police) and I find that he would have reached the defendant within a few minutes thereafter and told him to come back and that the police were coming. Therefore, by approximately 11:40 AM (not 11:50 PM as the defendant said) the defendant had spoken to the tow driver and knew the police were coming. The defendant then came back on foot and was back by no later than 11:53 PM, and likely a little earlier. On this timeline and view of events, which fits with other facts which are either uncontested or found by me, there was no time for the defendant to engage in the drinking session he testified to nor would it make any logical sense for him to do so in the circumstances. He had left the scene for only a few minutes before he knew the police were coming. Knowing that he had been drinking before the accident, he left his car somewhere (likely his home) and came back on foot.
49In my view, the foregoing points strongly support my conclusion that the defendant's evidence of post-accident drinking is a complete fabrication. I don't believe the defendant drank any significant amount of alcohol post-driving nor am I left in a reasonable doubt about it. At most, the defendant might have had the amount he told Officer Wood namely one shot and one sip of beer either at home or at Wild Wings. I base these conclusions not on the "common sense inference" referred to in Lima which I say can apply to post-driving drinking. Rather, I have based it on my consideration of the evidence heard and the facts determined as described above.
50In this case, I find that it has been established beyond a reasonable doubt that the defendant did not drink any amount post-accident even close to the exception in Dr. Corbett's report that would permit him to have a BAC of 80 or under at the time of driving (which would be legal from a Code perspective) and a BAC of 170 at 2:01 AM. As I have said, if he drank anything post-accident, it would be limited to the amount he told Officer Wood.
51Let me comment on the height and weight of the defendant which Dr. Corbett assumed as being 5'7" and 140 pounds. The defendant told Officer Wood that his height was 5'6" to 5'7" so that point was proven. Officer Wood did not ask his weight and the defendant did not tell it to him. Officer Feasby did ask the defendant's weight and the defendant told him but that evidence was not tendered at trial.
52In order for the assumptions/scenarios in Dr. Corbett's evidence to be proven, the approximate weight of the defendant must be established. Dr. Corbett assumed it was 140 pounds. The only evidence of the defendant's weight came from Officer Wood who estimated in his trial evidence that it was approximately 140 pounds. The defence submitted that this estimate could not be relied upon. In my view, Officer Wood could estimate the weight of the defendant and the Court could (and does) reasonably rely on it. Officer Wood was an experience breath technician. The law permits a non-expert to estimate such matters as age, speed, distance and other categories which are not closed (see R. v. Graat, [1982] 2 S.C.R. 819). The testimony of Dr. Corbett was that even if the weight of the defendant was 10 pounds less or 10 pounds more (namely, within a 20 pound range of 130 to 150 pounds), the result would be similar. My understanding of his evidence is that in fact the weight range could be even greater than the foregoing range and his opinion would continue to be similar.
53If precision was needed with respect to the weight of the defendant, the estimate of Officer Wood would be unlikely to be sufficient proof. However, here the point of Dr. Corbett's opinion which depended upon the weight was that in order to have a legal BAC of 80 at the time of driving and still have a BAC of 170 at 2:01 AM, very large amounts of alcohol would have to be consumed in the 20 minute window between 11:30 PM and 11:50 PM. On my assessment of the facts, it has been proven beyond a reasonable doubt that there was either no consumption of alcohol or very little consumption of alcohol post-accident such that it could not possibly be the case that the defendant was at 80 or under in terms of his BAC at the time of driving.
54To summarize, I have applied the WD framework to this charge and to my consideration of the evidence. For the reasons stated, I do not believe the defendant's testimony concerning his pre or post-accident drinking nor am I left in a reasonable doubt by it. I am satisfied on the evidence that the Crown has established beyond a reasonable doubt that the defendant did not consume anything close to the 5.7 ounces of alcohol or 38 ounces of beer from 11:30 to 11:50 PM addressed in the third scenario in Dr. Corbett's evidence. The result is that the defendant was clearly over 80 at the time of driving and this charge has been proved beyond a reasonable doubt.
Issue 4 - Has the Crown proved the section 252 charge beyond a reasonable doubt?
55Mr. Tanjangco is further charged with having the care or control of a motor vehicle involved in an accident and, with intent to escape civil or criminal liability, failed to stop his vehicle and give his name and address contrary to section 252 of the Code.
Law and Legal Principles
56Sections 252(1) and (2) provides, in part, as follows:
(1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with
(a) another person,
(b) a vehicle, vessel or aircraft, or
and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.
(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability
57An offence under section 252(1) is made out if, with the required intent, a person who has care and control of a motor vehicle that is involved in an accident does any one or more of the following things: (1) fails to stop their vehicle; (2) fails to give their name and address; and (3) where any person has been injured, fails to offer assistance (R. v. Steere, 6 C.C.C. (2d) 403 at para. 5).
58There is a presumption under section 252(2) which applies, in the absence of evidence to the contrary. In particular, where there is evidence that an accused is involved in an accident and fails to stop his vehicle; or fails to offer assistance where a person has been injured and appears to require assistance; or fails to give his name and address, that evidence is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability. The presumption in s. 252(2) is an evidentiary burden on the accused in certain circumstances but the burden of proof remains on the Crown to prove the required mens rea beyond a reasonable doubt (R. v. Butler, [2017] O.J. No. 3128 (per Copeland J.) at para. 33; R. v. Sanford, [2014] O.J. No. 4022 (ONSC) and R. v. Guay, 44 C.C.C. (2d) 116). The required intention for a s.252 offence is proof of the intent at the time of leaving the scene. However, where a person leaves the scene without complying with the s. 252 requirements but returns to the scene shortly thereafter, the return to the scene may be considered as circumstantial evidence of intent at the time of leaving the scene (R. v Butler, supra at para. 49).
Discussion and Analysis
59There are number of contested facts on this issue which I will determine before applying the law to the facts as I have found them.
60Mr. Lazcano says that he and Mr. Tanjangco exchanged cell phone numbers and Mr. Tanjangco's agrees. Mr. Lazcano says that they did not exchange names or addresses before Mr. Tanjangco left the scene. There is some evidence that before giving his correct cell phone number, Mr. Tanjangco gave an incorrect cell phone number. I accept that he initially gave the wrong number. He quickly corrected this deficiency by calling Mr. Lazcano's cell phone and thereby giving him his correct cell phone number which was then captured in the caller's list of Mr. Lazcano's phone which was the reason the defendant made the call. In my view, nothing can be fairly drawn from the initial giving by the defendant of an incorrect cell phone number.
61In addition to giving his cell phone number to Mr. Lazcano, the defendant says that he also gave his name and address to Mr. Lazcano. Among other things, he suggests that his last name was displayed on Mr. Lazcano's cell phone when he called him. Mr. Lazcano's says it was not displayed. Mr. Tanjangco also says he exchanged first names with Mr. Lazcano. Finally, Mr. Tanjangco also says that he gave his address to Mr. Lazcano by pointing to his apartment building which was very near the accident scene and telling Mr. Lazcano the unit number is lived in. Apart from Mr. Lazcano's evidence which directly contradicts Mr. Tanjangco's evidence on the point, the trouble with Mr. Tanjangco's evidence is that he was asked by Officer Wood on the breath room video "what did you exchange with the other driver? To which the defendant answered "I gave him my phone number sir". He was then asked "did you give him your name" to which he responded "Uh, I am not quite sure if I gave him my name".
62It is clear to me based on Mr. Lazcano's evidence and the defendant's answer to the officer on the breath room video that they exchanged cell phone numbers and that was it. There was no name or address given by Mr. Tanjangco electronically or otherwise.
63The defendant also admitted in cross-examination that one of the reasons he did not want to call police at the time of the accident was that he did not want the police to know that he had been drinking and driving.
64The Crown in this case submits that the presumption under subsection 252(2) applies in that the defendant did not give his name and address before leaving the scene. In my view, there is "evidence to the contrary" which undermines the applicability of this presumption. That evidence to the contrary is that the defendant did give his cell phone number. It is true that the cell phone was in his mother's name but nevertheless it provided a straightforward way for Mr. Lazcano to contact the defendant. This is not the kind of case where someone left the scene of an accident without stopping or without giving any information. The information that he did leave with Mr. Lazcano was sufficient for Mr. Lazcano to get a hold of him. In fact, the tow truck driver used that number to contact the defendant within minutes of the accident and, when the defendant learned that the police were coming, he returned to the scene before the police even got there.
65I am aware that there was evidence that Mr. Tanjangco did not answer the call when Mr. Lazcano's phone was used by the tow driver to call him and that it was not until the tow driver used a different phone that Mr. Tanjangco answered. While the failure to answer the call from Mr. Lazcano's phone can be used to argue that Mr. Tanjangco was seeking to avoid Mr. Lazcano's call, this is far too speculative to amount to any evidentiary value in my view.
66Section 252 has been part of the Code since well before people had personal cell phones. Arguably, giving a cell phone number to someone is as good as or better than giving an address. The cell phone number can be used to reach that person personally and immediately by voice or by text and if by text, there is an electronic record of the communications.
67In my view, the giving of the cell phone number in the circumstances of this case is such that the presumption does not apply as there is evidence to the contrary.
68As there is evidence to the contrary, the Crown must prove the requisite mens rea beyond a reasonable doubt without the assistance of the presumption. The Crown points to the evidence from the defendant that one of the reasons he did not want to call police at the time of the accident was that he did not want the police to know that he had been drinking and driving. In my view, this admission by the defendant does not prove the requisite intent for a s.252 offence when considered in the context of the evidence as a whole. The Crown must prove beyond a reasonable doubt that the defendant failed to give his name and address with the intention of escaping civil or criminal liability. The fact that he would have preferred not to involve the police as they might learn that he was drinking and driving has nothing to do with why he didn't leave his name and address. The same is true of the plan between the two men not to involve insurers. Both Mr. Lazcano and Mr. Tanjangco failed to exchange names and addresses. They were both content to exchange only cell phone numbers. In my view, as young men in their mid-20s, they thought that the cell phone numbers were all that they needed. Mr. Lazcano did not ask Mr. Tanjangco's name and vice versa. The difference between them, of course, was that Mr. Lazcano did not leave the scene. However, in my view, if the defendant was trying to avoid civil or criminal liability by not giving his name and address, he would not have given his cell phone number. As I already indicated, that cell phone number permitted him to be contacted and he was contacted within minutes of leaving and this led to his almost immediate return to the scene when he learned the police were coming. The fact that he returned to the scene of the accident so quickly and before the police had even arrived also sheds some circumstantial evidence on his intention at the time he left. In my view, not only is there a reasonable doubt that the defendant's intention was to evade civil or criminal liability by failing to give his name and address, I consider that a fair interpretation of the evidence is otherwise, namely that Mr. Tanjangco did not intend to evade civil or criminal liability by failing to give his name and address.
69While it is not necessary to my conclusion on the s. 252 charge, I would add that, based on my understanding of the facts, significant responsibility for the accident rested with Mr. Lazcano who turned left in front of Mr. Tanjangco. The fact that Mr. Tanjangco may have had his right turn signal on does not change my conclusion on this point. The point here is that there was a very real prospect that Mr. Lazcano owed Mr. Tanjangco (or the owner of his vehicle) money for having damaged his vehicle. This further supports my conclusion that Mr. Tanjangco was not trying to avoid criminal or civil liability by failing to give his name and address.
70In the circumstances, there will be an acquittal on the section 252 charge.
Conclusion
71For the reasons set out above, there will be a finding of guilt with respect to the over 80 charge contrary to s.253(1)(b) of the Code. There will be an acquittal on the s.252 charge.
Released: August 30, 2017
Justice Paul F. Monahan