DATE: 20020912

DOCKET: C37706

COURT OF APPEAL FOR ONTARIO

CARTHY, ABELLA AND MACPHERSON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Lawrence Ben-Eliezer for the appellant

Respondent

• and -

HARVEY HEIDEMAN

Chris Webb for the respondent

Appellant

Heard: June 20, 2002

On appeal from the order of Justice John Macdonald of the Superior Court of Justice dated January 10, 2002.

CARTHY J.A.:

[1] This is an appeal, pursuant to leave granted by Charron J.A., from an order made by Macdonald J. dismissing an appeal from his conviction by Sparrow J. of operating a vehicle when the concentration of alcohol in his blood exceeded 80 milligrams in 100 millilitres. The appeal concerns the meaning of the words in s. 258(1)(d.1) of the Criminal Code “evidence … tending to show … did not exceed 80 milligrams”.

[2] The appellant was stopped by a R.I.D.E. Program officer at 1:42 a.m. on August 9, 1998. The officer noted watery eyes, and the smell of alcohol. He administered a roadside screening test, the appellant failed, he was arrested and within the required time two Intoxilyzer tests were administered at the police station. The readings were 100 milligrams of alcohol in 100 millilitres of blood on each test, separated by 20 minutes. The certificates were entered into evidence. The appellant testified that he had consumed six beers between 9 p.m. and 1:30 a.m., as supported by his Mastercard bill for that evening. He doubted that anyone else had bought him a beer and thought he was drinking in even intervals but couldn’t be sure.

[3] A toxicologist gave evidence that an average person of the height and weight of the appellant who consumed the amount testified to at regular intervals over the stated time period would have registered 71 milligrams, rather than 100. However, if the appellant was a slow or fast eliminator the range could be between 47 and 95 milligrams. His opinion was that approximately 4 million Canadians fall into the slow elimination category and another 4 million into the fast category.

[4] The defence argued that there must be an acquittal if the defendant’s evidence is accepted because he is probably a member of the majority. This argument was rejected by the trial judge and the summary conviction appeal judge. In her reasons for judgment the trial judge stated:

The results of the Intoxilyzer test have repeatedly been recognized by the courts to be very reliable. In this case readings of 100 were twice registered. Evidence from a Defence witness demonstrates that a significant percentage of the population, although not a majority, eliminates alcohol more slowly and would register readings of more than .08. Obviously the accused could well be in this group. In other words, on the basis of the Defence expert evidence alone the accused could well be guilty. Furthermore, although seemingly sincere, the accused could not be definite as to whether anyone he had been drinking with socially had bought him an additional beer, or that his drinking occurred at regular intervals. In short, his testimony lacked certainty. Obviously increased consumption would have pushed his blood alcohol content higher.

[5] This appeal could be determined on the basis of the trial judge’s finding of a lack of certainty in the evidence supporting the opinion of the expert. However, given the prevalence of these cases in the trial courts and the disagreements that have been expressed by trial judges, it is propitious that the wider issue be dealt with by this court.

[6] Section 258(1)(d.1) of the Criminal Code reads:

Where samples of breath of the accused or a sample of the blood of the accused have been taken as described in paragraph (c) or (d) under the conditions described therein and the results of the analyses show a concentration of alcohol in the blood exceeding eighty milligrams of alcohol in one hundred millilitres of blood, evidence of the result of the analyses is, in the absence of evidence tending to show that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed did not exceed eighty milligrams of alcohol in one hundred millilitres of blood, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed exceeded eighty milligrams of alcohol in one hundred millilitres of blood.

Prior to amendments in 1996, s. 258(1) of the Code only included paragraphs (c) and (d) which read “in the absence of evidence to the contrary”. The present wording in s. 258(1)(d.1) now reads “in the absence of evidence tending to show that”. It was not argued before us that this change in wording affected the nature or quality of the evidence that would qualify to overcome the presumption, nor can I see any, myself. There was a semantic requirement of the restructured sentence which is now directed to the blood alcohol level at the time of the offence rather than, as previously, the reading at the time of testing. It is no longer a question of being “contrary” to the test.

[7] The appellant’s principal reliance is upon R. v. Carter (1985), 1985 168 (ON CA), 19 C.C.C. (3d) 174 (C.A.) where this court found that an expert’s testimony as to the imputed alcohol level, given acceptance of the accused’s evidence as to the amount and timing of drinking, was evidence to the contrary and if it raised a reasonable doubt should lead to an acquittal. Finlayson J.A. stated at p. 4:

In the case at bar, the reading came from a blood sample, not a breath sample, but once again, if the appellant’s evidence is accepted, the blood-sample reading must be wrong, and the appellant is not obliged to speculate where the error might have occurred; in the taking of the sample, the labelling, the testing or whatever. It is perhaps for this reason that the trial judge in his reasons made reference to the “continuity in this matter”. When the blood-sample reading does not reflect the consumption of alcohol testified to by the appellant, then the appellant (if he is believed) has raised a doubt as to the accuracy of the reading and it follows that there must have been a breakdown somewhere in the procedures followed in sampling and analyzing the appellant’s blood.

[8] It is noteworthy that in Carter the evidence of two experts was that if the accused was believed then the readings should be zero. The issue here is whether the same approach is available when the evidence supports only probability of being under the permitted level.

[9] The appellant’s argument is that this is some evidence showing the probability of being below .08 and thus qualifies as evidence which may induce a reasonable doubt. That was the conclusion of the Saskatchewan Court of Appeal in R. v. Gibson, (1992), 1992 2750 (SK CA), 72 C.C.C. (3d) 28 (Sask. C.A.) where the opinion evidence similarly straddled 8.0, the range being 60 to 95 milligrams.

[10] In the majority judgment Bayda C.J.A. stated:

The evidence under scrutiny in the present case meets Beetz J.,’s definition from each of the three perspectives. The evidence (undisputed and accepted by the trial judge) of the accused and that of Dr. Michel is some evidence that at 10:40 p.m. the accused’s blood alcohol concentration could have been .79 milligrams in 100 millilitres of blood. In other words, it is some evidence tending to show (not establishing) that at 10:40 p.m. the proportion was .79 milligrams. (In my respectful view “could have been” and “tending to show” are interchangeable phrases in this context.) As such the evidence clearly falls within the first perspective of the definition for it is clearly “[a]ny evidence … tending to show that at the time of the offence the proportion was within the permitted limit …”. (emphasis added)

It is true that the evidence of the accused and Dr. Michel is at the same time some evidence “tending to show” facts other than the fact that at 10:40 the proportion was .79. For example it is evidence tending to show that the proportion was more than .79 and, as well, less than .79. But syllogistically speaking “tending to show” these other facts does not mean that the evidence excludes and does not “[tend] to show” the fact that the proportion was .79. Because we are here concerned with “tending to show” (a probative function) and not “establishing” (a persuasive function), the evidence here must be regarded not as exclusionary in its scope but rather as inclusive in nature and effect.

[11] I disagree with this reasoning and in support of my own view I draw from the dissenting reasons of Wakeling J.A. the following excerpt from p. 13 of the reasons:

As a starting point in the consideration of this appeal, it is useful to remember the basis for the legislation in question. The decision to create an .08 standard as establishing intoxication to a point of impairment necessarily rejects an element of individuality in order to meet the higher social advantage of effectively dealing with the serious hazard created by those who drive when they have been drinking and are impaired as a consequence. Inherent in the acceptance of .08 as a standard is the recognition that alcohol does not have the same impact on everyone, depending on such differences as gender, age, weight and individual tolerance levels, but that the extent of the social concern created by impaired drivers and the tragic consequences of a failure to control that problem, dictated the change from an emphasis on an individual’s reaction to alcohol to an emphasis on a standard of general application. The standard is not intended as an absolute one in the sense it is an accurate assessment of everyone's state of impairment, as is evident from the fact some jurisdictions have set the figure at .100 (some states in the U.S.A.) and others as low as .06. (some states in Australia).

[12] To this contextual opening I would add some observations. Parliament must be taken to know that the body eliminates alcohol over time and that different persons eliminate at different rates. In applying the test levels to an offence time up to two hours earlier Parliament has built the elimination factor into the choice of 80 milligrams as a standard and, in doing so, has treated all drivers as one. In other words, Parliament may have inserted into the formula a slower than average elimination rate and, as a balance, a higher offence level than might otherwise have been imposed.

[13] These contextual considerations lead me to conclude that “tending to show” does not mean evidence “bearing on the subject”, or evidence that “could show”. On the other hand, it need not be persuasive. The guilt or innocent stage has not been reached. However, the evidence must be probative of the issue before the court; that is, probative of the level of alcohol in this person’s blood at the time of the offence. The opinion must offer a choice to acceptance of the certificate as indicating the blood level at the time of the offence, and must indicate that the level was below .08

[14] The expert evidence in Carter showed that the accused was below .08, if his evidence was accepted, because the same opinion would apply to all persons of his height and weight drinking the amounts stated over the same period of time. The evidence in this case does not exonerate all persons – only those who are not slow eliminators. It is therefore not probative of this appellant’s blood level at the time of the offence.

[15] The appellant seeks to say that he is an average person but cannot establish that fact. Absorption and elimination rates vary not only from person to person but also from time to time with each individual. Thus this element of fact cannot be established. Yet it is as essential to the opinion as the number of drinks consumed, as evidenced by the range from 71 to 95 milligrams within the group of slow eliminators. To put it another way, the opinion is not supported by the evidence any more than if the appellant had said that he’s not sure how many drinks he had consumed but on average it was five and sometimes seven. The only probative opinion would have to relate to seven drinks.

[16] In my view, moving from the average to a particular person is impermissible speculation in the context of the purpose and functioning of s. 258.

[17] For these reasons I would dismiss the appeal.

Released: September 12, 2002 “JJC”

“J.J. Carthy J.A.”

“I agree R.S. Abella J.A.”

“I agree J.C. MacPherson J.A.”