ONTARIO COURT OF JUSTICE
Region of Durham
BETWEEN:
HIS MAJESTY THE KING
— AND —
STEPHEN ZACHAR
Before Justice N.N. Baker
Heard on 2023/03/22
Reasons for Judgment released on 2023/03/22
M. GILLEN counsel for the Crown
S. KHERA Counsel for the defendant
1This case relates to the defence available in s. 320.14(5).
Facts
2The facts of this case were agreed and filed via an agreed statement of fact.
3A brief summary of the pertinent facts is as follows:
(1) Around 10:30pm, Mr. Zachar was involved in a single motor vehicle collision where he slid off the road.
(2) A civilian witness saw Mr. Zachar walking near the accident and called 911 at 10:37pm. Police arrived on scene shortly thereafter and found Mr. Zachar nearby, around 100 m from his motor vehicle.
(3) Mr. Zachar testified that he had not drank before driving. After the accident he “took refuge” in a nearby backhoe. While there, he drank roughly ¾ of a mickey of vodka. After drinking quite quickly, he saw police lights, exited the backhoe and approached police.
(4) He provided breath sample readings of 216 (truncated as 210) mgs of alcohol/100ml of blood and 206 (truncated as 200) mgs of alcohol/100 ml of blood at 11:57pm and 12:20am respectively.
4I remind myself that the Crown must prove each element of an offence beyond a reasonable doubt. Case law has held that an effective jury charge on reasonable doubt should explain that: the standard of proof beyond reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused. A reasonable doubt is not a doubt based upon sympathy or prejudice. Rather, it is based upon reason and common sense. It is logically connected to the evidence or absence of evidence. It does not involve proof to an absolute certainty. It is not proof beyond any doubt nor is it an imaginary or frivolous doubt and more is required then proof that the accused is probably guilty. A jury which concludes only that the accused is probably guilty must acquit.
5I remind myself to follow D.(W.) v. The Queen, 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 SCC. I remind myself that I can accept some, all, or none of a witness’ testimony.
6Section 320.14(5) of the Criminal Code reads as follows:
“(5) No person commits an offence under paragraph (1)(b) if:
(a) they consumed alcohol after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.
7To invoke this defence requires the accused to raise a reasonable doubt in the judge’s mind with regard to all three branches.
8I recognize that there are cases which suggest the defence must raise this issue on a balance of probabilities. See R. v. Lochead, 2021 ONCJ 432 at para. 86. I disagree with this approach. The golden thread that runs through our criminal justice system is the presumption of innocence and where there is reasonable doubt which supports an innocent explanation, such doubt must be given effect.
9I adopt the reasoning as in R. v. Deshpande, 2021 ONCJ 699 at para. 89; R. v. Herring 2022 SKPC 31 at para. 59; R. v. Tucker-Merry, 2022 NLPC 1322PA00114 at para. 15; R. v. Madadi-Farsijani, 2021 ONCJ 196 at para 27, that there must be an “air of reality” to each of the three branches in s. 320.14(5).
Analysis
10Mr. Zachar’s evidence has left me with a doubt regarding post-accident drinking. I am left in doubt that Mr. Zachar may have consumed alcohol after the accident. The Crown is correct to point out that such drinking would be bizarre, see R. v. Lima, 2010 ONCA 615 at para. 29. Drinking such as this is “relatively rare” and common sense indicates that it does not occur in the vast majority of cases. However, it does happen. I accept that Mr. Zachar consumed alcohol after ceasing to operate a conveyance and he satisfies the first branch.
Branch 2: Reasonable Expectation of Breath Sample
11Mr. Zachar testified that calling anyone or providing a breath sample was “the last thing on his mind” after the accident. He acknowledged that it should have been the first thing on his mind. I must assess whether there was a reasonable expectation that he would be required to provide a sample.
12I adopt the reasoning of Justice Renwick from Deshpande, supra. at paras.93-94:
“s. 320.14(5)(b) imports a modified objective standard to raise an air of reality to the second requirement of the statutory defence. While the Defendant and his wife dispute that there was ever any concern for the involvement of police, this evidence does not satisfy me that no reasonable person in the Defendant’s shoes would have so concluded.
94The Defendant had clearly left the scene of a minor vehicle collision where he could reasonably have anticipated the involvement of the police given the taxi driver’s insistence that they should exchange driver and vehicle information. Again, the Defendant’s behaviour in leaving the accident scene and then purportedly downing approximately 375 mL of spiced rum was unusual and unreasonable. If the police became involved, it was highly likely that they might require a breath sample from the Defendant. By leaving the accident scene, this raised the possibility of having to provide a breath sample to a probability.”
13While the Deshpande case is different in that it involved an individual who had consumed at least some alcohol prior to the accident, I find it does not significantly differ from the case of Mr. Zachar. Where an individual is involved in a motor vehicle collision of such severity as this, with airbags being deployed after an accident, where the vehicle leaves the roadway, where other drivers are in the area passing the accident scene, and the accused leaves the scene, the only reasonable expectation is that the driver would be required to provide a breath sample. I do not accept that Mr. Zachar has raised an “air of reality” with regard to s. 320.14(5)(b).
Branch 3: Consistency of Alcohol Consumption
14Turning to the final branch, there are two parts which must be shown. First, his drinking pattern must have some agreement with the results eventually obtained. Mr. Zachar’s evidence is that he drank ¾ of a mickey. I heard in submissions and accept that a mickey is a bottle containing 12 oz. of fluid. Mr. Zachar’s evidence would therefore be that he drank approximately 9 oz. or 281 ml of vodka. I accept from the toxicology report that the vodka is 40% alcohol by volume. The toxicology report from Dr. Krishnan indicates that even 10 oz. of vodka might bring Mr. Zachar’s drinking pattern into agreement with at least one of the breath readings. However, it would require 11 oz. for both to come into agreement. The highest possible BAC posited in the expert report for 10 oz. of consumption is 204 mg of alcohol/100 ml of blood.
15I accept that “straddle” evidence is admissible and can be probative as in R. v. Ibanescu, 2013 SCC 31 at para. 1. I accept that 10 oz. post-operating consumption would be a sufficient quantity to provide agreement with one reading but not with both when considering truncated readings.
16Defence suggests that Mr. Zachar’s testimony that he drank “around” or “approximately” ¾ of a mickey leaves open the possibility that he may have drank as much as 11 out of 12 oz. The test regarding “air of reality” is not a high hurdle. I recognize that Mr. Zachar did not precisely measure how much alcohol he consumed. However, in the circumstances, I see no reason not to rely on his unchallenged evidence. While I could accept some variation as to the exact quantity, his testimony of ¾ of a mickey is significantly away from the 11 oz. which the toxicology report requires for agreement with the non-truncated readings or even the 10 oz. required to match one of the two truncated readings. I do not believe that Mr. Zachar consumed 10 or more oz. of vodka post-operation, nor am I left in a state of reasonable doubt. As a result, the defence fails on this portion of the third branch.
17The second requirement under the third branch is that his blood alcohol concentration must have been under the legal limit at the time of operating based on the hypothetical. If I accept that had he not drank in the 24 hours prior to driving as he testified, then his blood alcohol concentration at the time of operating the conveyance would have been zero. While I do not accept that he consumed no alcohol prior to operation, his evidence on this point raises a reasonable doubt in my mind. He may have been under the legal limit. I find he has met this requirement.
Conclusion
18In conclusion, I resolve the issues as follows:
(a) I am left with a reasonable doubt that Mr. Zachar may have consumed alcohol after ceasing to operate his conveyance.
(b) I not convinced, nor am I left in a state of reasonable doubt, that he had no reasonable expectation that he would be required to provide a sample of breath, after ceasing to operate his conveyance.
(c) I am not convinced, nor am I left in a state of reasonable doubt, that his alcohol consumption is consistent with his blood alcohol concentration as determined in accordance with s. 320.31(1). I am left in a state of reasonable doubt that his blood alcohol concentration could have been under 80 mgs at the time of operation.
19As a result of my above-noted findings, I am left in a state of reasonable doubt relating to whether alcohol had an impairing effect on Mr. Zachar at the time of operation. He will be acquitted of the impaired driving count. However, I am left with no reasonable doubt with regard to his blood alcohol concentration exceeding the legal limit within 2 hours of his ceasing to operate a conveyance and he will be found guilty of that count.
Released: March 22, 2023
Signed: Justice N.N. Baker