Ontario Court of Justice

Date: November 18, 2019

Court File No.: 18-15005506

Toronto Region – Old City Hall

Between:

HER MAJESTY THE QUEEN

— AND —

SHARIFUDDIN ABASSI

Before: Justice H. Pringle

Heard on: October 24-25, 2019

Reasons for Judgment released on: November 18, 2019

Counsel:

• Benjamin Janzen, for the Crown
• Arvin Ross, for the defendant

PRINGLE J.:

Evidentiary Overview

1Sharifuddin Abassi pled not guilty to counts of Driving while Over 80 mg of Alcohol in 100 ml of blood and Impaired Driving. The contested issues were whether seizure of the breath samples had been supported by reasonable grounds to arrest, and whether the evidence on each count were established by proof beyond a reasonable doubt.

2Three firefighters from the downtown Adelaide street station testified for the Crown. While there were minor, immaterial differences, all three generally corroborated one another. A minor internal inconsistency in one firefighter's evidence was far from crucial to the narrative. Another firefighter's passionate feelings about the dangers of drinking and driving did not taint any of his evidence with bias. I therefore found these three witnesses to be credible and reliable.

3Their evidence established the following events, leading up to the defendant's arrest in the fire station parking lot on July 21, 2018. On that night, they became aware of a blue SUV pulling into their station's parking lot. This SUV turned into the lot at a high rate of speed. The car's tires appeared to squeal upon entry, although traffic was busy and this noise could have come from another car. The vehicle came to an abrupt stop in the parking lot. It was not parked precisely between the yellow parking spot lines.

4The SUV's driver was the defendant, Mr. Abassi. He exited the car and stepped into an alley next to the fire station. All of the firefighter witnesses inferred he was going there to urinate. Ron Weltman, the most senior firefighter who testified, walked up to the passenger side of the car to ask what was going on. The passenger said, somewhat colourfully, "emergency piss" and pointed towards the alley.

5When the defendant returned to the SUV and entered, Mr. Weltman noticed two open bottles of Corona sitting in the front centre cupholder console. They were both partially consumed. He saw the situation, correctly, as an ongoing danger to the public. Accordingly, he reached into the SUV, took the two bottles out, and directed the defendant to shut off the car.

6The driver complied with this direction, as well as Mr. Weltman's direction to step out of the car, hand over the keys, and wait for police. Mr. Weltman seized the two open beer bottles for evidence, placing them on a nearby picnic table in the parking lot.

7Mr. Weltman believed the driver was impaired, and not just because of the presence of open alcohol in the SUV. The defendant staggered a bit as he returned to the car. This imbalance was corroborated by another firefighter, Blair Wallhouse, who described the defendant as unsteady on his feet, with a discernable sway when he was standing still.

8Mr. Weltman described the defendant's eyes as a "bit blurry", which I interpreted to mean glassy or watery. He also described the defendant's speech as "a little slurred". The defendant spoke but a few words, however, and Mr. Weltman acknowledged the slur could have been due to an accent.

9Officers Riel and Cheung were the responding officers to this call. Ron Weltman spoke to them upon their arrival. Between the contents of the dispatch call and the initial interview with Weltman, the arresting officer knew:

• That the call related to an impaired driver identified by these firefighters;
• That the defendant had been driving the blue SUV;
• That the SUV had pulled quickly into the parking lot at a high rate of speed;
• That the defendant left the car to urinate against the wall of the firehall;
• That Weltman had taken the defendant's keys away because he believed the defendant was impaired;
• That Weltman had seized two open and partially consumed beer bottles from inside the SUV.

10Officer Riel then made his own observations, which I have accepted as accurate and true:

• That the defendant had apparent manual dexterity problems while ending a cell phone call;
• That a strong odour of alcohol was emanating from the defendant's breath;
• That his eyes were watery and glassy;
• That the defendant had to lean against the car to steady himself physically; and
• That two open bottles of Corona sat on the picnic table where Weltman said he had put them, after removing them from the car.

11PC Riel's escort, PC Cheung, corroborated these observations. In particular, he saw slight unsteadiness, some slurring, and glossy, bloodshot eyes. The firefighters, and Ron Weltman in particular, served as further corroboration of PC Riel's observations.

12The defendant was placed under arrest for care and control of a motor vehicle while impaired. PC Riel properly issued an approved instrument demand for the defendant's breath. Because of language barriers, the demand was repeated a second time, after which the defendant said "I drank two or three beers". Fourteen minutes later, the defendant replied to a question by again saying, "I just had two or three beers". The admissibility of these two statements went uncontested.

13The interior of the defendant's SUV was photographed following his arrest. There was an LCBO bag, contents unknown, sitting on the rear passenger seat. Another LCBO bag, contents unknown, rested in the rear driver's side footwell. A third LCBO bag was in the front passenger's side footwell. That bag contained a six-pack of opened, empty beer bottles. Officer Riel said six empties were inside, and that a seventh empty bottle was "floating around" loose in that same area.

14Finally, pictures were taken of the cupholders where Mr. Weltman had seen the open and partially consumed beers. These pictures show one Corona beer cap in that same front console area, and other caps inside a cupholder. Officer Riel identified those additional caps as being beer caps, too.

15While transporting the defendant to Traffic Services, PC Riel noticed an odour of alcohol emanating from the back of his scout car, where the defendant sat. Upon arrival, the defendant was turned over to the Qualified Breath Technician. This breath technician, officer Birtles, did not testify. His Certificate of a Qualified Breath Technician was admitted pursuant to s. 258(1)(g).

16This certificate established that at the time of testing at the station, the defendant's truncated blood alcohol content was 120 mg in 100 ml of blood at 2350 hours and 100 mg of alcohol in 100 ml of blood at 0012 hours. PC Cheung, who had been present in the breath room, established service of the same Certificate of Qualified Technician on the defendant.

17The inception of Mr. Abassi's charges pre-date legislation that fundamentally changed law in relation to impaired driving. He was charged under s. 253(1) of the Criminal Code. The current presumption of accuracy in s. 320.31(1), however, explicitly applies retrospectively to his case. Thus the readings in the qualified breath technician's certificate accurately measure the defendant's blood alcohol content at the time the samples were taken.

18The prior presumption of identity in s. 258(1)(c) would continue to apply here too: see R. v. McAlorum, [2019] O.J. No. 2123. But to ground this presumption, and enable me to conclude that the readings in this certificate accurately measure the defendant's blood alcohol content at the time of the alleged offence, certain preconditions must be satisfied. Crown and defence agree those preconditions were not met here.

19To bridge this evidentiary gap, toxicology expert witness Betty Chow linked the results taken at the station with the timeframe the defendant was driving his car. In Ms. Chow's opinion, given the date of an incident between 8:14 pm and 9:14 pm, and readings of 121 and 109 mg of alcohol in 100 ml of blood at 11:50 pm and 12:12 am, respectively, the defendant's blood alcohol content between 8:14 pm and 9:14 pm was projected as between 105 to 175 mg of alcohol in 100 ml of blood. Impairment of a person's ability to drive a car, in her opinion, would be significant starting at 50 mg of alcohol in 100 ml of blood. Impairment of the ability to drive a car was, therefore, established within the defendant's projected range of 105 to 175 mg/100ml.

20Ms. Chow's opinion rested on the presence of four pre-conditions:

(i) A rate of elimination of alcohol from the blood ranging from 10 to 20 mg/100ml 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 incident;

(iv) No consumption of alcoholic beverages after the incident and before the breath tests.

21With respect to the third precondition, Ms. Chow's affidavit added that, "A large quantity of alcohol is defined primarily by the weight and gender of an individual".

22There was no defence evidence called on the voir dire or the trial proper.

Charter Application – Reasonable Grounds to Arrest

23The defence argued PC Riel lacked objectively reasonable grounds to arrest the defendant for impaired driving. A reasonable suspicion had been established, he conceded, but that suspicion did not rise to the requisite level for an arrest. Respectfully, I disagree.

24The controlling jurisprudence on this issue can be found in the Court of Appeal decision of R. v. Bush, 2010 ONCA 554. At para. 28, the Court stated:

Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer 'has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed' the offence of impaired operation or driving 'over 80.' (emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima facie case: see Censoni at para. 31 and R. v. Shepherd 2009 SCC 35 at para. 23.

25The context of the situation in which reasonable grounds are assessed is a relevant factor. For example, a justice considering the presence of reasonable grounds in a search warrant is in a far different situation than a police officer assessing reasonable grounds for an arrest. The Court in Bush adopted para. 21 of R. v. Golub, 1997 CanLII 6316 (ON CA), where Doherty J.A. said:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.

26The Court in Bush then continued, at paras. 45-48:

On a subsequent occasion, Doherty J.A. found police in a drinking and driving investigation were involved in making quick but informed decisions whether there were reasonable and probable grounds: see R. v. Smith (1996), 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75 (C.A.).

In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435 at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni at para. 43.

There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478. Slight 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: Censoni at para. 47.

The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478; Moneno-Baches and Wang, at para. 17.

27In the case at bar, PC Riel had objectively justifiable grounds to arrest Mr. Abassi for impaired driving. For the purpose of forming grounds, officer Riel was permitted to rely on hearsay information from Mr. Weltman: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at para. 57. His subjective belief in grounds were reasonable, given:

• His own observations. Specifically, these were the defendant's problem with manual dexterity while ending his phone call, the strong odour of alcohol coming from the defendant's breath, the watery and glassy eyes, the defendant having to steady himself physically against his car, and the partially consumed bottles of beer; and
• The information received from Mr. Weltman. This included the defendant driving the car into the parking lot at a high rate of speed, the defendant stepping into the alley to urinate against the fire station, the partially consumed bottles of Corona in the cupholder, and that he took the keys away from the driver because he believed the defendant was impaired.

28While there are inferences beyond impairment available from what he heard and saw, PC Riel was not required to discount all other possibilities to have grounds for arrest. It is true, for example, that the defendant's physical difficulty in ending his phone call could simply be the result of the phone locking, thus requiring interim steps before hanging up. Some of the physical indicia bore more than one inference. But that did not preclude the arresting officer from relying on them as part of his reasonable grounds for arrest.

29Moreover, there were multiple factors which led, in combination with one another, to a reasonable inference of impairment. The observations made by PC Riel, and the information received from Mr. Weltman, amply and reasonably supported PC Riel's grounds for arrest. The Charter application must therefore fail.

Bolus Drinking and Proof Beyond Reasonable Doubt

30Defence counsel, Mr. Ross, argued the Crown had failed to prove both charges beyond a reasonable doubt, given the necessity of an absence of bolus drinking to the expert opinion. The 'bolus drinking' defence was available to Mr. Abassi under the prior legislation. Both Crown and defence agree that if I cannot rely upon the expert opinion evidence, the result is fatal to proof of both counts.

31The Court of Appeal has cautioned trial judges of the exceptional nature to this defence, given that mass consumption of alcohol just before or while driving is unusual human behaviour. In R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785 (C.A.), the Court of Appeal described the 'no bolus drinking' inference as a common sense inference. It is not a presumption and does not shift the onus from the Crown. Thus, at paras. 28-29 of R. v. Paszczenko; R. v. Lima, 2010 ONCA 615, the Court said:

In establishing that an accused has not engaged in bolus drinking, the Crown is in the unenviable position of having to prove a negative. But how does it meet that onus in circumstances where – as is likely in many cases – it has no statement or evidence from the accused as to his or her drinking pattern at the relevant time and no other witnesses or evidence to shed any light on that issue? That is the dilemma posed, principally, by the Lima appeal.

At one level, the answer is straightforward: the Crown need do very little. The toxicologist's report is premised – amongst other things – on there being no bolus drinking. In the absence of something on the record to suggest the contrary, on what basis could a trier of fact conclude there was bolus drinking? This Court has answered the question posed by concluding that triers of fact may resort to a common sense inference in such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving: see Grosse, Hall, and R. v. Bulman, 2007 ONCA 169. As noted above, bolus drinking has been said to be a 'relatively rare' phenomenon: Phillips, at pp. 158-162. 'No bolus drinking' is therefore largely a matter of common knowledge and common sense about how people behave.

32The defendant, relying on the Crown's evidentiary record, argued the case had not been proven against him beyond a reasonable doubt. He pointed to R. v. Constable, [2016] O.J. No. 3719 (C.J.), where Rose J. found the 'no bolus drinking' precondition was not made out. At para. 19 Rose J. concluded:

In his report, Dr. Mayers said his opinion assumed that Mr. Constable had not consumed 'large quantities of alcohol' shortly before the incident. I do not know what amount constitutes 'large'; see R. v. Smith 1998 CarswellOnt 3194 at para. 31. Multiple open beer cans were found in reach of Mr. Constable and these were not itemized. Empty containers of alcohol is one of the factors which courts have noted to support an inference of bolus drinking; see R. v. Calabretta 2008 CarswellOnt 9305, R. v. Grosse 1996 CanLII 6643 (ON CA), 1996 CarswellOnt 1949 (C.A). A strong odour of alcoholic beverage was, in Grosse (supra) also considered to be evidence of bolus drinking. The combination of empty beer cans in the car and Mr. Constable's breath smelling stronger of alcohol as time progressed displaced the common sense inference that persons do not consume alcohol in large quantities in a short period of time. In the result there is evidence before me which is consistent with consumption of alcohol prior to being stopped by Constable Luckasavitch. The 3d assumption of Dr. Mayer's report is not made out and I accordingly afford the report no weight in evidence. Mr. Constable is acquitted of the charge of Over 80.

33Factual conclusions in other cases, obviously, cannot control my decision-making. But in comparing the facts underlying findings of guilt in this scenario (R. v. Szabo, [2017] O.J. No. 2704; R. v. Oliver, 2016 ONCJ 626) with facts underlying acquittals in this scenario (R. v. Macias, 2011 ONCJ 269; R. v. DaSilva, [2016] O.J. NO. 1408), the evidence in Mr. Abassi's case echoes the evidence in the latter cases much more closely.

34It is not just an available inference that Mr. Abassi was driving around in his car while engaged in the act of drinking multiple beers. It is obvious that Mr. Abassi was driving around in his car while engaged in the act of drinking multiple beers. There is a reasonable inference of bolus drinking that the Crown has not disproven.

35Two bottles of beer, found in the cupholder, were clearly being consumed by driver and passenger. At least seven empties were visible inside the car, with one bottle "floating around" in the front somewhere. LCBO bags were strewn about. Multiple beer caps, not just two, were inside the front cupholder console area. The defendant had to stop, urgently, in a downtown area not lacking for washrooms, to urinate against the wall of a fire station.

36The Crown submitted that Corona has a low alcohol content, and that Mr. Abassi's own admission of drinking "two or three beers" quashed the possibility of bolus drinking beyond all reasonable doubt. But I have no evidence of the alcohol content of Corona. I was not comfortable, respectfully, accepting the Crown's invitation to take judicial notice of Corona's low alcohol content.

37I have a statement from the accused that he had two or three beers, but even if I accepted that as accurate, I have no evidence about when or how quickly those two or three beers were consumed. Indeed, if the defendant's statement was accurate, it did not, in the context of all the evidence, necessarily assist the Crown: see, for example, R. v. Da Silva, [2016] O.J. No. 1408 (C.J.). I don't know how many beers the passenger had, or whether the passenger was exhibiting any physical signs of impairment or of alcohol consumption. I do know that the defendant's breath smelled strongly of alcohol when he dealt with the firefighters and with police.

38The end result in this case seems ironic. No doubt this is why Parliament has now abolished the 'bolus drinking' defence. Because of the abundance of evidence leading to a reasonable inference of the defendant drinking large quantities of alcohol while actually driving his car, a necessary precondition of Ms. Chow's opinion was not made out and Mr. Abassi must be acquitted of driving over 80 and impaired driving.

39Finally, I must add that absent the expert opinion of impairment, the driving evidence would not have sufficed to meet, beyond reasonable doubt, the Stellato standard of "slight to great" impairment. Crown counsel Mr. Janzen fairly conceded the 'bolus drinking' defence, if accepted, would be fatal to both counts. Accord, my Reasons have not further analyzed this issue.