Court File and Parties

Date: 2016-05-19

Court File No.: Brampton 14-14249

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Kevin Stennett

Before: Justice P.A. Schreck

Heard on: August 31, 2015; January 18, April 15, 2016

Counsel

R. Levan – counsel for the Crown

V. Paskarou – counsel for the defendant

Reasons for Judgment

SCHRECK J.:

[1] Introduction

[1] This case raises the issue of whether a trial judge should do the calculations necessary to determine an accused's blood alcohol concentration ("BAC") at the time he operated a motor vehicle. Some courts have held that such calculations should be performed by the trial judge. Others have not.

[2] After being involved in a minor motor vehicle collision, the accused was arrested for driving while the concentration of alcohol in his blood exceeded the legal limit and while impaired. He later provided two samples of his breath into an approved instrument, but the Crown was unable to rely on the presumptions in s. 258(1)(c) of the Criminal Code because it could not be established that the breath samples were taken within two hours of when the offence was allegedly committed, as required by s. 258(1)(c)(ii). Instead, the Crown relied on the opinion of a toxicologist, whose report was filed on consent for the truth of its contents. The toxicologist, however, based her conclusions on an assumption as to the time of driving which the evidence does not support.

[3] Crown counsel has invited me to fill this evidentiary gap by making findings of fact about the time of driving and then using the other information in the report to perform my own calculations to determine the accused's BAC at the time of driving. For the reasons that follow, I decline to do so.

I. EVIDENCE

A. Time of Driving

[4] On October 10, 2014, a witness was driving her mother home. She was travelling westbound on Highway 401 near Dixie Road when her vehicle was hit from behind by a vehicle being driven by the accused. The police were called and Constable Jean-Michel Valade of the Ontario Provincial Police ("OPP") arrived on scene at approximately 4:36 p.m.

[5] The witness did not testify as to the time at which the collision occurred. She was asked how long after the collision the police arrived:

Q. How long after the collision, like from the point at which you were hit do the police arrive?

A. Where my car engine is off I could not look at the clock so I don't know how long it lasted.

Q. Leaving aside what the actual time on a clock might be, are you able to tell us approximately how long it took for the police officers to arrive after you were hit? What I mean by that is, when you're asked how long something takes, is this five minutes, an hour, days, anything in that variation?

A. My estimate would be half an hour more or less, give or take, but I am not one hundred percent sure; that's only my estimate. More or less half an hour.

Q. Now when you say "more or less", I'm trying to figure out how close you think you were to the half an hour. Is this something that could be closer to five minutes, something could be closer to an hour? How much do you think you may be off the half hour, if you're able to say?

A. I believe my estimate would be less than half an hour.

Q. I'm sorry, the witness said . . . .

A. I cannot remember all the, you know, the details. It was long ago.

[6] The witness had entered Highway 401 at Yorkdale Road in Toronto. At one point, she testified that this had been at 4:00 p.m., later said that it had been at 3:30 p.m. I heard no evidence as to how long it would take to travel from Yorkdale Road to Dixie Road. The other witness gave no evidence about times.

B. The Arrests

[7] At 4:40 p.m., Constable Valade spoke to the accused and noticed the odour of an alcoholic beverage emanating from his breath and that his eyes were watery. Although the accused denied having consumed alcohol, at 4:44 p.m. Constable Valade made a demand that he provide a breath sample into an approved screening device ("ASD"). Constable Valade did not testify to noticing any signs of impairment at that time. At 4:48 p.m., the ASD registered a "fail" and as a result, the accused was arrested for driving a motor vehicle with an excessive BAC and taken to the OPP detachment.

[8] The accused and Constable Valade arrived at the detachment at 5:18 p.m. Constable Valade noticed that the accused had "passed out". When the accused got out of the police cruiser, he started to stumble and had to lean against the cruiser to remain stable. At this point, Constable Valade decided that he had reasonable and probable grounds to arrest the accused for impaired driving and did so.

C. The Breath Test Results and the Toxicologist's Opinion

[9] The accused provided two breath samples into an approved instrument at 6:14 p.m. and 6:37 p.m., resulting in readings of 172 and 166 mg of alcohol per 100 ml of blood, respectively.

[10] On consent, a report was filed that had been prepared by Karryn Wall, B.Sc., who is described as a "Forensic Scientist, Toxicology" from the Centre of Forensic Sciences. The report states:

In connection with the above-noted matter the following is the information as specified in your submission.

1. Involved in an incident at or between approximately 4:15 p.m. and 4:20 p.m.

2. Intoxylizer 8000C results of 172 and 166 milligrams of alcohol in 100 millilitres of blood obtained at approximately 6:14 p.m and 6:37 pm., respectively.

Given the above information, the projected blood alcohol concentration (BAC) at or between approximately 4:15 p.m. and 4:20 p.m. is 160 to 205 milligrams of alcohol in 100 millilitres of blood (mg/100 mL). This projected range is independent of the gender, height, weight, and age of the individual, but is dependent on the following additional factors:

1. A rate of elimination of alcohol from the blood ranging from 10 to 20 mg/100 mL per hour.

2. Allowance for a plateau of up to two hours.

3. No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident.

4. No consumption of alcoholic beverages after the incident and before the breath tests.

A rate of elimination below 100 mg/100 mL per hour is rare and as such, the lower limit of the projected range represents the minimum BAC at the time of the incident provided no large quantities of alcohol were consumed within approximately 15 minutes prior to the incident and no alcohol is consumed after the incident but before the breath tests were conducted. A rate of elimination in excess of 20 mg/100 mL per hour will result in a higher maximum BAC.

A plateau in the BAC represents a period of time in which there is no significant change in the BAC due to the rate of absorption of alcohol into the body being approximately equal to the rate of elimination of alcohol from the body. A plateau of greater than two hours is rare. A plateau of less than two hours will result in an increased BAC at the lower limit of the projected range.

A large quantity of alcohol is defined primarily by the weight and gender of the individual. A calculation to assess the impact of a large quantity of alcohol on the projected BAC can be performed if requested.

II. ANALYSIS

A. "Over 80"

(i) The BAC at the Time of Driving

[11] In her report, the toxicologist considered the accused's BAC at the time of testing and, together with other information, including the range of rates at which people eliminate alcohol from their systems, calculated what his BAC would have been at what she understood to be the time of driving. This type of calculation is known as a retrograde extrapolation.[1]

[12] For some reason, the toxicologist was told to assume that the time of driving was between 4:15 p.m. and 4:20 p.m. and it was on those times that she based her calculations. However, the evidence does not establish that this was when the accused operated a motor vehicle and in fact suggests that it was somewhat earlier, although exactly when is not clear. The witness testified, with considerable uncertainty, that the police arrived "half an hour, more or less, give or take" after the collision. Constable Valade testified that he arrived at 4:36 p.m., which would place the time of the collision at around 4:06 p.m. However, the witness only provided that estimate after initially saying that she did not know. As well, she also testified that she may have entered Highway 401 from Yorkdale Road at 4:00 p.m., which would have meant that the collision was much later than 4:06 p.m., but then said it had been at 3:30 p.m., which would have made it earlier. Having considered all of the evidence, I am unable to determine the time of the collision with any degree of certainty.

[13] Crown counsel submits that the time of the collision does not matter. He submits that even if the collision occurred at 3:30 p.m., the accused's BAC would have exceeded 80 mg per 100 ml of blood. While the toxicologist does not provide an opinion as to what the accused's BAC would have been at 3:30 p.m., Crown counsel invites me to take her evidence about elimination rates and the plateau and to conduct my own retrograde extrapolation to determine the accused's BAC at that time.

[14] Both counsel directed much of their submissions to the issue of whether it would be appropriate for me to take judicial notice of the rate at which human beings eliminate alcohol. There is authority suggesting that judicial notice can perhaps be taken of elimination rates: R. v. Paszczenko; R. v. Lima (2010), 2010 ONCA 615, 103 O.R. (3d) 424 (C.A.) at paras. 60-66. However, the issue does not arise in this case because I have evidence of elimination rates in the toxicologist's report and that evidence is properly admissible through her: R. v. Paszczenko, supra at para. 26.

[15] Although the toxicologist sets out the elimination rates, her other assumptions and her conclusions based on a time of driving, she does not set out the calculations she undertook to arrive at those conclusions. In other words, she did not show how she conducted the retrograde extrapolation. Nonetheless, the Crown has asked me to take judicial notice of the method she employed and to then do my own calculations based on it.

[16] Some Courts have been willing to perform such calculations: R. v. Kisten, [2015] O.J. No. 6918 (C.J.) at paras. 16-18; R. v. Bonifacio, [2013] O.J. No. 586 (C.J.) at para. 9; R. v. Palic, [2015] O.J. No. 6637 (C.J.) at paras. 29-30; R. v. Lessel, [2012] O.J. No. 6482 (C.J.); R. v. Rajeswaren (2003), 38 M.V.R. (4th) 140 (Ont. C.J.) at para. 30. Others have not: R. v. Yan, [2015] O.J. No. 4299 (C.J.) at para. 18; R. v. Rosien, [2011] O.J. No. 5411 (C.J.) at para. 31; R. v. Zorkin, [2014] O.J. No. 5364 (C.J.) at paras. 19-21; R. v. Cole, [2015] S.J. No. 566 (P.C.) at para. 47; Dennis v. British Columbia (Superintendent of Motor Vehicles) (2000), 2000 BCCA 653, 150 C.C.C. (3d) 544 (B.C.C.A.) at paras. 9-16. With respect to those who hold a contrary view, I place myself in the latter category. My reasons for doing so are based on the law respecting judicial notice and expert evidence, concerns about the reliability of my own calculations, principles of statutory construction and the proper role of an impartial tribunal.

(ii) Judicial Notice and Expert Evidence

[17] Judicial notice is the acceptance of the truth of facts without the requirement of proof. It generally applies to facts which are (a) so notorious as not to be the subject of dispute among reasonable persons; or (b) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy: Sopinka, Lederman, Bryant & Fuerst, The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis, 2014) at §19.15.

[18] Judicial notice is the antithesis of expert evidence, which, amongst other requirements, is admissible only if it relates to information that is likely to be outside of the experience of the trier of fact and where the trier of fact is apt to come to a wrong conclusion without expert assistance: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275 at paras. 46-57. If the method by which a retrograde extrapolation may be performed is properly the subject of judicial notice, then a toxicologist's expert testimony is unnecessary and inadmissible. As was pointed out in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para. 49:

Expert evidence is by definition neither notorious nor capable of immediate and accurate demonstration. This is why it must be proved through an expert whose qualifications are accepted by the court and who is available for cross-examination.

However, it is difficult to accept that the testimony of a toxicologist on how a retrograde extrapolation was conducted is not proper expert evidence. Indeed, in this case the Crown relied on such expert testimony up until it realized that the expert had been provided with the wrong times. I expect that the Crown will continue to rely on such evidence in future cases.

[19] Additionally, as pointed out in Find, if I perform the extrapolation calculations myself, the defence has no right of cross-examination to challenge their correctness in the event that they were wrong: Dennis v. British Columbia (Superintendent of Motor Vehicles), supra at paras. 11-20. It is to the possibility of error to which I now turn.

(iii) Reliability

[20] Crown counsel did not refer me to any text of indisputable accuracy that sets out how a retrograde extrapolation is to be performed. Although I am far from sure, I suppose that the calculation would proceed as follows. First, two hours should be added to the time of driving to represent the two-hour plateau. The time that is then arrived at is subtracted from the time of the test, with the result being the amount of time at which the defendant was eliminating alcohol. Multiplying that amount with the elimination rate should result in the amount of alcohol that was eliminated, which when added to the amount revealed by the test should provide the BAC at the time of driving. However, there are two reasons why I am somewhat uncomfortable with applying this formula in this case.

[21] First, no witness who interacted with the accused at the roadside observed any indicia of impairment other than the odour of alcohol. However, when he arrived at the police station just under an hour later, he began to show signs of impairment. Is this an indication that he was continuing to absorb alcohol? If so, this would affect the accuracy of the calculations: R. v. Rajeswaren, supra at para. 20-26. If this is not an indication that he was continuing to absorb alcohol, what other explanation is there for the observations? These are questions that a toxicologist may be able to answer. I cannot.

[22] Second, during submissions I asked Crown counsel, who has significant experience prosecuting drinking and driving cases, to calculate the low end of the range the accused's BAC would have been at 3:37 p.m. based on the reading of 166 taken at 6:37 p.m. The result he arrived at was 100 mg of alcohol per 100 ml of blood. Based on my understanding of how the calculations should be conducted, it should have been significantly higher. Clearly, one of us is not performing the calculations correctly. In my view, this is a further indication of why such calculations should be left to experts.

[23] Crown counsel argued that it ultimately does not matter if his or my calculations are correct so long as I am sure that whatever the accused's BAC was at the time of driving, it must have been over 80 mg of alcohol per 100 ml of blood. There is a superficial attractiveness to the argument. However, in my view it is either appropriate for a trier of fact to conduct these calculations or else it is not. While the accused's readings were high and he was likely over the limit even if the time of driving was several hours earlier, one can readily imagine situations which are not so clear cut. At what point does judicial notice become inappropriate and expert evidence necessary? In my view, the safer course is to leave such calculations to those who are trained to perform them.

[24] In any event, even if I could reliably perform the calculations myself, there are in my view additional reasons why I should not do so.

(iv) Principles of Statutory Interpretation

[25] Parliament created a statutory scheme which contains a number of evidentiary shortcuts to facilitate the Crown's ability to prove "over 80" offences. Among these is the "presumption of identity" in s. 258(1)(c) of the Criminal Code, which relieves the Crown of the burden of proving that the accused's blood alcohol level at the time of the offence was the same as it was at the time of testing. The presumption is subject to a number of statutory preconditions, including a requirement that the breath samples be taken within two hours of driving. Unless these preconditions are met, the Crown cannot rely on the presumption and must prove the offence in some other fashion, usually with the testimony of a toxicologist: R. v. O'Meara (2012), 2012 ONCA 420, 284 C.C.C. (3d) 567 (Ont. C.A.) at paras. 27-28.

[26] Parliament presumably had a reason for creating the two-hour statutory precondition. It was presumably aware of the limitations of what could be concluded with certainty from the breath tests and created the statutory preconditions accordingly: R. v. Moreau, [1979] 1 S.C.R. 161 at p.272. However, if a trier of fact can calculate an individual's BAC where the breath samples were taken more than two hours after the time of driving, he or she could do so if the samples were taken within the two-hour time period. If such were the case, the two-hour statutory requirement would be meaningless and redundant. Furthermore, if I can take judicial notice of the elimination rates, the existence of the plateau and the retrograde extrapolation methodology, the requirement in s. 258(1)(c)(ii) that the samples be taken as soon as practicable would also be meaningless and redundant.

[27] It is an accepted principle of statutory construction that every part of a statute exists for a purpose, as explained in Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014) at p.211:

. . . [E]very word and provision found in a statute is supposed to have a meaning and a function. For this reason courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless or pointless or redundant.

It follows that Parliament must have intended that where the two-hour requirement is not met, the BAC at the time of driving must be proven by evidence other than the breath test results. Parliament could have simply made the Certificate of Analysis admissible and left it to the trier of fact to calculate the BAC at the time of driving. It did not do so.

(v) The Role of an Impartial Tribunal

[28] Because the breath tests were not taken within the two-hour time period prescribed by the Code, the Crown retained the services of a toxicologist. For reasons that were not explained, somebody asked the toxicologist to assume that the time of driving was between 4:15 p.m. and 4:20 p.m., which is not accurate. Ironically, had the driving times provided to the toxicologist been accurate, the first breath test at 6:14 p.m. would have been taken within the two hours and the Crown could have relied on the presumption. No toxicologist would have been necessary.

[29] Although this trial began in August 2015, the error was apparently never discovered and corrected before final submissions were made on April 15, 2016. To correct that shortcoming, the Crown now asks me to do what would otherwise have been done by the toxicologist, that is, perform the mathematical calculations that the Crown requires to prove its case. In my view, to do so is inconsistent with my role as an impartial adjudicator. It is not my role to assist the Crown in correcting the shortcomings in its case. While it is of course appropriate for a court to draw inferences and deductions from facts, performing mathematical calculations goes beyond this type of fact-finding and in my view crosses the line into helping the Crown build its case, something which is inconsistent with my role. It was open to the Crown to retain a toxicologist and ensure that she was provided with the correct and necessary information. The Crown failed to do so and must bear the consequences.

[30] During submissions, counsel for the accused asked rhetorically if there had been an allegation of bodily harm and this was a jury trial, would each of the jurors have been given a calculator and asked to calculate the accused's BAC at the time of driving? Crown counsel's response was that if this had been a jury trial, the Crown would have called viva voce testimony from the toxicologist and provided her with accurate driving times. However, the Crown's burden of proof is the same at a jury trial as it is at a judge-alone trial, even one where the Crown elects to proceed summarily. If it would be inappropriate to ask a jury to conduct a retrograde extrapolation, it is no less inappropriate to ask a judge to do so.

[31] For these reasons, I decline to perform the mathematical calculations required to conduct a retrograde extrapolation of the accused's BAC at the time of driving. As a result, there is no evidence as to the accused's BAC at the time he operated a motor vehicle.

B. Impaired Driving

[32] When Constable Valade first spoke to the accused after arriving at the scene at 4:36 p.m., he did not note any indicia of impairment other than the odour of alcohol on his breath. He agreed that at that point, he had no grounds to arrest the accused for impaired driving. Upon arriving at the police detachment at 5:18 p.m., Constable Valade noticed that the accused had "passed out" in the police car. When the accused exited the car, he was unsteady on his feet. At 5:20 p.m., Constable Valade arrested him for impaired driving.

[33] In addition to this evidence, the Crown relies on the report from the toxicologist, who states:

. . . [B]ased 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.

[34] With respect to the indicia of impairment, they only became apparent almost an hour after the accused's arrest, and well over an hour after he had been operating a motor vehicle. In these circumstances, I cannot infer that the indicia necessarily resulted from the consumption of alcohol or that they were present when the accused drove, even having regard to the fact that he was involved in a minor collision: R. v. Daides, [2014] O.J. No. 2413 (C.J.) at paras. 19-24; R. v. Sammut (2012), 38 M.V.R. (6th) 153 (Ont. C.J.) at para. 34.

[35] With respect to the toxicologist's opinion, in my view her assertion, based on unidentified "scientific literature", is insufficient to make out the charge. First of all, for the reasons given, I make no finding as to the accused's BAC at the time of driving. More importantly, in the absence of other indicia of impairment such as those described in R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.) at paras. 4-6; aff'd, [1994] 2 S.C.R. 478, basing a conviction on this type of opinion essentially creates a new offence of "over 50". It would of course be open to Parliament to create such an offence. But until it does so, in my view the Crown must prove impairment by evidence that relates specifically to the accused before the court: R. v. Slykhuis, [2013] O.J. No. 124 at para. 40 (S.C.J.); R. v. Cochrane, [2013] O.J. No. 6206 (C.J.) at paras. 3-5; R. v. Singh (2005), 25 M.V.R. (5th) 142 (Ont. C.J.) at para. 20; R. v. Jackson, [2014] O.J. No. 686 (C.J.) at para. 34.

III. DISPOSITION

[36] For the foregoing reasons, the charges are dismissed.

Justice P.A. Schreck

Released: May 19, 2016

Footnote

[1] J.N. Bostic, "Alcohol-Related Offenses: Retrograde Extrapolation After Wager" (2000), 79 Michigan Bar Journal 668.