Court File and Parties

Date: October 24, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Matthew Oliver

Before: Justice F. Crewe

Heard on: December 22 & 23, 2015, May 6, 2016 and September 1, 2016

Reasons released: October 24, 2016

Counsel:

• E. Weis for the Crown
• B. Brody for Matthew Oliver

CREWE J.:

INTRODUCTION

[1] Mr. Oliver is charged with two counts arising from an automobile accident on January 27, 2015, in which both he and his passenger, the 16 year old son of a female acquaintance, suffered injuries. The 2 charges Mr. Oliver faces are impaired driving and driving with excess alcohol in his blood.

[2] Several issues were raised at the outset of trial, however as the trial progressed concessions were made and Charter applications under sections 7, 9, 10 and 11(b) were abandoned such that in the end, in respect of the excess alcohol charge, only two arguments were advanced on behalf of Mr. Oliver.

[3] The first is that Mr. Oliver was arrested and charged with impaired driving without reasonable and probable grounds and the subsequent seizures of breath samples were therefore in violation of section 8 of the Charter and inadmissible. Mr. Oliver's position on this issue is simply that all but one of the symptoms of impairment noted by the police were equally consistent with his injuries as with impairment, and therefore provided no objective support toward the reasonable grounds for that charge.

[4] Secondly, defence counsel raises the issue of bolus drinking, which he submits contains an air of reality on the facts of this case. The supervising police officer at the scene of the accident went to the home of Mr. Oliver's passenger to advise the boy's mother of her son's injuries. While waiting to take her to the hospital, he noted the presence of a partially consumed bottle of liquor on the living room coffee table, together with drinking glasses. Mr. Brody submits that the Crown has not proved the absence of bolus drinking, which is one of the foundational assumptions contained within the report of the expert (toxicologist) filed as part of the Crown's case.

[5] With respect to the offence of impaired driving, Mr. Brody submits that there is simply not sufficient proof of this charge, and that many of the symptoms exhibited by his client, notably glossy, bloodshot eyes, slurred speech, unsteadiness and a dazed appearance could as likely have been caused by the accident, wherein Mr. Oliver suffered a head injury, as from the consumption of alcohol.

[6] The summary of the evidence that follows addresses only that evidence that is relevant to the issues raised above.

The Evidence

[7] Emmanuel Rivera is 16 years of age. He was the front seat passenger in a vehicle driven by Mr. Oliver early in the morning of January 27th, 2015, on the way from Mr. Rivera's home, where he lives with his mother, to get food from McDonald's. Approximately 5 minutes after setting out, their car was involved in an accident. He isn't sure what happened because "I hit my head pretty hard. I just remember waking up in a wreck."

[8] The accident was a traumatic experience for Mr. Rivera. He had to be removed from the vehicle by emergency personnel using cutting equipment. He suffered an MCL tear in his left leg, spinal injuries and "soft tissue damage to my entire body."

[9] Mr. Rivera does not recall any alcohol having been consumed in the car. Prior to leaving home, he was not in the same room as his mother and Mr. Oliver, so is unaware what they were doing for the two or three hours he estimates Mr. Oliver was present. He believes they were watching a movie in the living room. Mr. Oliver invited him to go to McDonald's for food. He does not recall seeing his mother and Mr. Oliver drink alcohol. He saw no alcohol in the house when he left, and had no concerns about being in the car with Mr. Oliver, because he believed him to be sober.

[10] It was very cold that morning, and snowing lightly.

[11] David Bond saw the accident occur. He was arriving at his workplace at approximately 6:10 a.m. when he saw Mr. Oliver's car "…coming around a corner and the car slid sideways and ended up hitting a pole…". He does not recall seeing any lights from the car, despite the fact it was still dark: all he saw was a "black mass sliding across the road." It's possible he couldn't see the lights because the car had spun sideways when he saw it. The car was initially travelling eastbound, but crossed over into the westbound lanes before coming to rest facing westbound, after colliding with a pole on the opposite side of the road. When it hit the pole, the car "…basically disintegrated and many parts were flying in the air and came to rest in the driveway that I was going to pull into. And…I pulled into the driveway… and grabbed my cellphone and jumped out of the car."

[12] Mr. Bond called 911 and ran to the crash site. He could hear the passenger screaming inside, yelling that he was dying. The driver was "passed out." He had a head injury with a noticeable amount of blood coming from it. After 10-15 minutes he came to and got out of the car, then began to walk away. Mr. Bond and another witness stopped him and brought him back to the car. They tried to talk to him but he didn't say anything. Eventually emergency services personnel and police attended. He did not see the driver drink any alcohol.

[13] Mr. Bond noted that there was a light frost on the road that morning. It was a very cold day. He denied there was black ice, noting that his car wasn't sliding as he "…was driving along there."

[14] Mitchell Zwicker is a paramedic for the City of Toronto. When he arrived at the accident scene, a passenger was trapped inside the vehicle, screaming in pain.

[15] A second individual (conceded to be Mr. Oliver), who he was advised by fire personnel had also been in the car, was standing behind the car. He had a laceration to the right side of his head. Within 30 seconds of his arrival, Mr. Zwicker approached Mr. Oliver, who was repeating something to himself that was unintelligible to Mr. Zwicker. He was not making sense. There was an odour of alcohol emanating from him. He tried to assess this person but he didn't want to be touched. He was ultimately able to guide him into a waiting ambulance, but not without some difficulty. He initially pulled his arm away from Mr. Zwicker. He was unsteady on his feet. His speech was "a bit" slurred.

[16] Mr. Zwicker saw no alcohol on scene.

[17] There was a thin layer of snow on the ground, and it was extremely cold. Mr. Oliver was transported to hospital by ambulance, while a second ambulance, Mr. Zwicker's, transported the passenger to Sunnybrook Hospital after he was extracted from the car.

[18] Police Officer Agnes Fabiszewska responded to the accident call at 6:46 a.m. When she arrived, a male passenger was still trapped in the car, and "Fire" was in the process of freeing him by cutting the roof off the car. There was nobody in the driver seat, and nobody present at the scene who was identified as the driver. She had no contact with Mr. Oliver at the scene. She conducted an investigation and was unable to determine the cause of the accident. It was snowing lightly but the roads were not snow-covered; much of the road surface was black and damp. The temperature was -10°C.

[19] The officer did not see any alcohol inside the vehicle. There was blood on the driver's seat. She was told that the driver had been taken to hospital by ambulance.

[20] Officer Fabiszewska spoke with Officer Tomaszewski by telephone and advised him that Matthew Oliver was the driver of the vehicle, based on conversations she had with witnesses on scene, and that he had been taken to Scarborough General Hospital.

[21] Police Officer Martin Tomaszewski testified that he received information that there had been a car accident in which a car had hit a pole, and that there was someone with possibly serious injuries, including a passenger who was trapped in the car. He was also told that the driver of the vehicle was Matthew Oliver, who had been transported to Scarborough General Hospital. He went to the hospital to speak with the alleged driver, ascertain his identity, and determine whether he had sustained injuries in the car accident. He arrived at the hospital, in uniform, at 7:14 a.m. At this point, he was not conducting a criminal investigation.

[22] Officer Tomaszewski met Mr. Oliver in a small room in the emergency department at the hospital, lying on a stretcher. He first spoke with him at 7:16 a.m. Mr. Oliver identified himself and provided his date of birth and home address. The officer advised him that he was investigating a car accident. He asked Mr. Oliver whether he was driving a car, and was advised that he was. Mr. Oliver had blood on his face as well as on the right side of his head, and a "big gash" on the right side of his head. Mr. Oliver was lying on his back, wearing a neck brace, so he was looking straight up and was effectively unable to move. His eyes were watery and bloodshot, his speech was slurred and there was an odour of an alcoholic beverage coming from his breath. The officer formed the subjective grounds to believe that Mr. Oliver's ability to drive a motor vehicle was impaired by alcohol, and that he had been involved in a motor vehicle accident within the previous hour. He then cautioned Mr. Oliver that anything he said from that point on could become evidence, because in the officer's view the investigation had evolved into a criminal investigation.

[23] The officer had received no information about the cause of the accident, so that factor did not form part of his grounds for belief. However, as he noted signs of impairment, the fact he was aware of the accident having occurred was a factor in his assessment of those grounds. He agreed that it was not a strong factor.

[24] After the caution, the officer asked Mr. Oliver if he had been drinking. He responded that he "had a couple drinks". At that point, at 7:23 a.m., he was arrested for impaired driving and advised of the right to retain and instruct counsel, and read the demand to provide breath samples into an approved instrument.

[25] A breath technician was requested and arrived at the hospital at 8:13 a.m. with the approved instrument. After Mr. Oliver had been provided an opportunity to speak with duty counsel, he provided two samples of his breath into the Intoxilyzer device, the first at 9:46 a.m., the second at 10:08, with readings respectively of 181 mg of alcohol per 100 ml of blood, and 170mg /100 ml. The symptoms of impairment, which the officer felt were obvious, were still present and unchanged at the time of the breath tests. Officer Tomaszewski is a breath technician.

[26] Mr. Oliver did not have access to alcohol while he was in this officer's presence.

[27] Officer David Kozak was the supervising officer at the accident scene. He went to Emmanuel Rivera's home to advise his mother of his injuries, and transport her to the hospital if necessary. He knocked on her door at 9:00 a.m. While he waited for Ms. Rivera to get ready, he remained just inside the front door of her apartment, from where he could see the kitchen and living room. On the living room coffee table he observed a 750 ml. bottle of Smirnoff vodka, which appeared to be about three quarters empty. He observed two other bottles of the same size that he believed to be alcohol. There were glasses in the vicinity of those bottles, although he doesn't recall how many, simply that it was more than one.

[28] In addition to the viva voce testimony summarized above, the Crown filed as a documentary exhibit the certificate of a qualified technician setting out blood-alcohol readings of 180 mg/100 ml and 170 mg/ 100 ml., as detailed in the evidence of the arresting officer above.

[29] A further documentary exhibit, filed on consent, contained a report from the Centre of Forensic Sciences, authored by Galiena Tse, a forensic scientist in the area of toxicology, setting out the opinion that blood-alcohol readings of 181 and 170, taken at 9:46 a.m. and10:08 a.m. respectively, when projected backward to an accident time between 6:00 a.m. and 6:15 a.m., would result in a blood-alcohol level at the time of driving between 185 and 250 mg/100 ml. The report states that 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.

Positions of the Parties

[30] The defence, as noted above, ultimately abandoned Charter arguments initially raised with respect to sections 7, 9, 10 (a) & (b), and 11(b), choosing to rely, as regards the Charter, only on s. 8. The essence of defence counsel's position on s. 8 is that the arresting officer lacked the objective reasonable and probable grounds to believe that his client had committed the offence of impaired driving, and that the resultant arrest and demand to provide breath samples into an approved instrument was unlawfully made. Mr. Brody concedes that his initial position, that any such breach would only result in exclusion of the evidence in the event there were found to be a corresponding breach of section 10 of the Charter, severely weakens any resultant argument under section 24(2) for exclusion of the breath results.

[31] Mr. Brody's central argument, with respect to the excess alcohol charge, is that the report of the toxicologist, Ms. Tse, is of no evidentiary value and therefore inadmissible, since the Crown has failed to prove the third plank in the platform upon which her opinion rests, namely, the absence of consumption of large quantities of alcoholic beverages within 15 minutes of driving, otherwise known as "bolus drinking". He takes no issue with the remaining three factors mentioned in her report.

[32] Mr. Brody submits that the issue of "bolus drinking" is provided an air of reality by the evidence of Officer Kozak, who noted the presence on the living room coffee table of a partially consumed bottle of vodka, together with (drinking) glasses. Coupled with the short distance of the drive to the accident scene, 5 minutes or so, he submits that the Crown is obliged to prove lack of bolus consumption and has failed to do so.

[33] Finally, Mr. Brody argues that there is simply a lack of evidence on the charge of impaired driving. The signs of impairment noted by the police, aside from the odour of alcohol, consisted of bloodshot, glassy eyes, slurred speech, dazed expression, and unsteadiness as noted by Mr. Zwicker. These may all be attributable to the blow to the head Mr. Oliver received from the accident itself. Mr. Brody's position is that the accident itself was likely caused from slipping on black ice, something over which his client had no control, and that there is simply no evidence that the accident was caused by his client's impairment by alcohol.

Position of the Crown

[34] Ms. Weis submits, with respect to the issue of bolus drinking, that the court ought to rely on the common sense inference referred to by the Court of Appeal for Ontario in R. v. Paszczenko; R. v. Lima 2010 ONCA 615, that people do not normally ingest large amounts of alcohol just prior to, or while, driving.

[35] Ms. Weis further takes the view that the evidence in this case simply does not lend an air of reality to the defence of bolus drinking. There was no alcohol found in the car, and Mr. Oliver was not seen leaving the parking lot of a bar within minutes of the car accident. Instead, the only evidence capable of supporting this defence is the presence of alcohol in Ms. Rivera's home. Ms. Weis submits that there is nothing unusual about alcohol being found in a person's home, and certainly nothing which gives rise to the defence of bolus drinking put forward here. Even if it could be said that there is a possibility Mr. Oliver had a drink just before leaving Ms. Rivera's home, there is no evidence that he had consumed a large quantity of alcohol.

[36] Ms. Weis further submits, on the section 8 Charter argument, that the officer possessed both subjective and objectively reasonable and probable grounds to conclude that Mr. Oliver's ability to drive was impaired by alcohol. His eyes were watery and bloodshot, his speech was slurred, the odour of alcohol was present on his breath, and he had been involved in a car accident. He also had admitted to the arresting officer that he had had a "couple drinks".

[37] The charge of impaired driving is proved, submits Ms. Weis, on the above factors, combined with the unsteadiness of Mr. Oliver on his feet after the accident, as well as the unchallenged opinion put forth in the report of the toxicologist that "… impairment with respect to driving becomes significant at a BAC of 50mg/100 ml and increases from then onward".

Analysis - The Section 8 Argument

[38] The decision of the Court of Appeal for Ontario in R. v. Bush 2010 ONCA 554 is dispositive of this issue. In that case, an officer arrived on the scene of an accident and was advised by witnesses on scene that Mr. Bush, who was standing outside a Nissan vehicle, was the driver of that vehicle. He approached Mr. Bush, who had a dazed look, an odour of alcohol on his breath, red and glassy eyes and was weaving back and forth while standing. Constable Lucas arrested Mr. Bush for impaired driving within a minute or so of his arrival. The officer took into consideration that Mr. Bush had been involved in an accident and that the airbags had deployed. Powder from airbags can cause redness and watery eyes. Furthermore he had never asked Mr. Bush if he had been drinking or how the accident had occurred.

[39] In overturning the Summary Conviction Appeal Court and restoring the conviction imposed by the trial judge, the Court of Appeal for Ontario noted, at paragraph 46, that in the context of a breath demand, the reasonable and probable grounds standard is not an onerous test. Further, at paragraph 47, the Court of Appeal held that it is not necessary that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest. Impairment may be established where the prosecution proves any degree of impairment from slight to great. 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. (para. 48).

[40] At paragraph 54, the Court of Appeal goes on to hold that the fact "… that an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case.

[41] In the present case, the arresting officer had at least the equivalent of the objective grounds possessed by the arresting officer in Bush. He was aware Mr. Oliver had been involved in an accident, and personally observed the presence of glossy, bloodshot eyes, as well as the odour of alcohol and slurred speech. In addition, he received an admission that Mr. Oliver had consumed a couple of drinks. It is clear on the officer's evidence that he subjectively believed Mr. Oliver to be impaired by alcohol, and in my view the objective facts support that conclusion, particularly when examined in light of the Bush rationale. In the result, the applicant has failed to establish a breach of section 8 of the Charter.

Bolus Drinking

[42] It would seem a fair conclusion on the evidence that the accident occurred within approximately a five minute drive of Ms. Rivera's apartment. Therefore, the window within which Mr. Oliver would necessarily have consumed the "large quantity" of alcohol required to challenge the third plank of the opinion of the toxicologist was one of 10 minutes. No direct evidence was adduced that Mr. Oliver engaged in bolus drinking (or any drinking) within the 10 minutes prior to driving his motor vehicle. The only witness who testified, and had opportunity to affirm or deny consumption by Mr. Oliver, was Mr. Rivera. He did not see Mr. Oliver consume alcohol either immediately before they left or evidently at any other time that night /morning. Mr. Oliver did not testify.

[43] In R. v. Grosse (1995), 107 C.C.C. (3d) 97 (Ont. C.A.), the court held that where an expert's opinion concerning the blood-alcohol level is entirely dependent on the lack of bolus drinking, the Crown is required to prove the lack of bolus drinking. The Court concluded at p. 103 that there was sufficient evidence of a lack of bolus drinking because… there were no containers or bottles of alcohol found in the vehicle, no strong odour of alcohol about the respondent, and no evidence that the respondent had just left a drinking establishment.

[44] The Court of Appeal for Ontario addressed this issue more recently in R. v. Paszcenko; R. v. Lima 2010 ONCA 615. At paragraph 28-29, the court observed:

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.

[45] The bottle of vodka (and other bottles presumed to be alcohol), together with the presence of drinking glasses which Mr. Brody points to as providing an air of reality to the bolus drinking defence was observed on the living room coffee table by officer Kozak when he arrived at Ms. Rivera's apartment at 9:00 a.m. Nearly 3 hours had passed since Mr. Oliver and Mr. Rivera left to drive to McDonald's for food. Mr. Rivera says he did not see any alcohol when they left.

[46] Officer Kozak did not say, nor was he asked, whether the cap was off the bottle of vodka. His only evidence was that the bottle was three quarters empty. He did not say, nor was he asked, whether the other two bottles appeared to be full, open, or partly consumed. He did not say, nor was he asked, whether the glasses appeared to be clean, used, partly full, or empty. He did not say, nor was he asked, whether there appeared to be any evidence that would suggest recent drinking, such as the presence of mix, ice, or other such indicia of consumption of alcohol.

[47] There is no evidence as to where Ms. Rivera stores her alcohol. It may well be a reasonable inference that she does not store it on the coffee table, but there is no evidence on the point. It may be that the bottle(s) on the coffee table were being consumed by Ms. Rivera and/or Mr. Oliver the previous evening or throughout the early morning. There is no evidence as to whether the coffee table contained the same bottles (and glasses) at 6 o'clock in the morning when Mr. Oliver Mr. Rivera left the apartment. Again, there may be a reasonable inference available that the coffee table looked as it did when Mr. Oliver left the apartment. There is just no evidence on the point.

[48] There was likewise no evidence that Mr. Oliver consumed any of the vodka prior to leaving Ms. Rivera's apartment, whether part of it or the entire three quarters of a bottle. There is likewise no evidence that he had consumed any of it within the previous 10 minutes, much less a large quantity.

[49] The cases to which Mr. Brody referred me as support for his submission all contained evidence that in my view give the issue an air of reality beyond that which is present here. In R. v. Da Silva [2016] O.J. No. 1408 (OCJ) per Rose, J., Mr. DaSilva advised the officer, on video, just over a minute from leaving the parking lot of a bar, that "I just had two beers right now." He repeated that assertion shortly afterward. In those circumstances Justice Rose found the issue of bolus drinking to have an air of reality.

[50] In R. v. Constable [2016] O.J. No. 3719(OCJ) per Rose, J., Mr. Constable was stopped by police after receiving a call from a worker at a McDonald's drive through, and the arresting officer noted the presence in the vehicle of open beer cans, which the officer did not itemize, but which he candidly admitted left him mindful of the possibility that the driver was drinking up to the point he had been stopped. The presence of multiple open beer cans, combined with an odour of alcohol which became stronger as time passed, was held to be sufficient to displace the common sense inference that persons do not consume alcohol in large quantities in bolus fashion.

[51] Mr. Brody urges me to find similarly that the odour of alcohol became stronger as time passed in this case. Notably, Mr. Bond did not smell alcohol, whereas Mr. Zwicker, the next witness to arrive on scene, did. The arresting officer, who also dealt with Mr. Oliver later in time, also noted the odour of an alcoholic beverage.

[52] I place little significance in Mr. Bond's failure to note the odour of alcohol in the circumstances of this case. He is a civilian witness who had just witnessed a serious car crash, in which the vehicle had …basically disintegrated…", and he could hear someone inside the car screaming that "he was dying." It is insignificant in my view that in that situation he did not make note of the odour of alcohol. I do not take from that that there was no such odour. His focus was clearly on the well-being of the two individuals inside the car. He immediately called 911 and then rushed to the car to offer assistance to its occupants. Mr. Zwicker did detect an odour of alcohol, but he was simply not asked whether the odour increased as time wore on. Officer Tomaszewski testified that the symptoms he noted did not change over time, however he did not meet Mr. Oliver until an hour or so after the accident.

[53] In R. v. Macias [2011] O.J. No. 2333 (OCJ) per M. Green, J., a Crown witness, the other driver at the accident scene, testified that Ms. Macias had removed a bottle from her jacket and thrown it into the bushes, asking her not to say anything. The police later retrieved the bottle and found it to be an open 500 ml bottle of strong beer (8% alcohol) which was one third empty. Given the accused's immediate access to an open and partly consumed bottle of strong beer, Justice Green found the crown to have failed to prove the absence of bolus drinking.

[54] Similarly, in R. v. Pyrek [2015] O.J. No. 3140 (OCJ) per Monahan, J., the trial Judge found that there was clear evidence the parties had been engaged in a drinking game involving the rapid consumption of alcohol. (para 188) The common sense inference was thus displaced.

[55] There is nothing in the evidence in this case which lends an air of reality to concerns that the accused had been drinking, much less engaged in bolus drinking, within the 10 minutes prior to getting into his car. In my view, the "common sense" inference referred to in Lima, supra, is applicable in this case, and indeed is consistent with the complete absence of evidence of bolus drinking. Notwithstanding the presence of alcohol on the living room coffee table, together with drinking glasses, in my view there is no air of reality to the assertion that Mr. Oliver, at 6:00 o'clock in the morning, suddenly guzzled a large quantity of alcohol in the space of 10 minutes and then invited the teenage son of a female friend out for a drive to fetch breakfast. As noted by the Court of Appeal for Ontario in Lima, at paragraph 31 (citing Bulman): "…the jurors were entitled to rely upon their common sense, and to draw inferences about how normal people behave. A reasonable inference is that normal people do not consume large quantities of alcohol shortly before, or while, driving." The mere presence of liquor in the home is not enough to displace that inference, notwithstanding its presence on the coffee table. There is nothing unusual about the presence of alcohol in someone's home, including partially consumed bottles of liquor.

[56] The Applicant's only statement to the police was that he had consumed "a couple drinks". There is simply no evidence before me that the accused engaged in bolus drinking, nor is there circumstantial evidence from which I infer that he did.

[57] The British Columbia Court of Appeal, in Saul, [2015] BCCA149, the British Columbia Court of Appeal reversed the trial judges acquittal based, in part, on his ruling with respect to bolus drinking. At paragraph 58 -60, the Court of Appeal notes, inter alia, as follows:

The judge declined to rely on the common sense inference of how people normally drink to find that the assumption of no bolus drinking had been proved. As this inference is permissive and not mandatory it was open to him to do so. Instead, however, he found (at para. 52) that there was a reasonable possibility the respondent engaged in bolus drinking for three reasons: (i) there may have been open hard liquor in the car "as described by Mr. Roberts"; (ii) the possibility that the respondent was drinking in the vehicle could not be ruled out as the accident did not occur in a remote area; and (iii) there was no evidence that the respondent did not stop at the nearby town of Hope where he might have consumed alcohol.

With respect, there was no evidentiary basis for any of these "findings". While Mr. Roberts testified to seeing a bottle of Smirnov vodka in the respondent's vehicle, he was never asked if it was open. There was also no direct or circumstantial evidence from which it could be inferred that the respondent had been drinking in his vehicle while he was driving or that he had stopped in Hope to consume alcohol. Each of these "findings" was nothing more than conjecture or speculation.

[58] In essence, I am being invited to speculate that Mr. Oliver not only drank alcohol just before getting into his car to drive to McDonald's at 6 o'clock in the morning, but that he consumed a large quantity in very short order. I am satisfied that he did not, as noted above. I do not draw any adverse inference from the Applicant's failure to testify, I merely note that there is no evidence of bolus drinking, and no evidence upon which the issue is given an air of reality.

[59] I therefore find that the Crown has proved the excess alcohol charge beyond a reasonable doubt and I find Mr. Oliver guilty of that charge.

The Impaired Driving Charge

[60] The evidence on this count is also substantial. Mr. Oliver exhibited numerous symptoms of impairment, including watery, bloodshot eyes, slurred speech, nonsensical rambling to himself, unsteadiness on his feet, the odour of alcohol, the admission of alcohol consumption, an unexplained accident, and in particular the excessive blood-alcohol readings. According to the expert's extrapolation evidence, at the time of the accident Mr. Oliver's blood-alcohol level was at minimum well over twice the legal limit, and potentially in excess of three times that limit.

[61] I am mindful of the fact that some of the symptoms noted may well be a result of the accident itself. Mr. Oliver sustained injuries in the course of the accident which may well have accounted for his unsteadiness, and perhaps to some extent his slurred speech. Mr. Brody points to the road conditions that morning and submits that it is more likely that black ice caused the accident than Mr. Oliver's blood-alcohol content. With respect, while the evidence discloses that there was light snow, and that driving conditions were not ideal, there is no evidence of black ice. Mr. Bond rejected the submission that the road in that area was covered in black ice, indeed he noted that his car wasn't sliding "… as I drove along there."

[62] I am satisfied that in all the circumstances the Crown has proved Mr. Oliver's ability to drive was impaired by the consumption of alcohol. There will therefore be a finding of guilt on that count as well.

[63] One of these two counts will clearly be stayed pursuant to the principle against my multiple convictions for the same delict.

Released: October 24, 2016

Signed: "Justice F. Crewe"