DATE: 20031208
DOCKET: C34768
COURT OF APPEAL FOR ONTARIO
WEILER, MacPHERSON and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Frank Addario for the appellant
Respondent
- and -
MARK GETTINS
Alex Hrybinsky for the respondent
Appellant
Heard: October 9, 2003
On appeal from the convictions entered by Justice Robert N. Weekes of the Superior Court of Justice, sitting with a jury, dated June 9, 2000.
WEILER J.A.:
[1] This appeal concerns whether the placing of Centre of Forensic Science (CFS) seals on vials containing the appellant’s blood in order to preserve it for analysis in the event further investigation permitted a search warrant to be obtained was an unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. In R. v. Tessier (1990), 1990 11015 (ON CA), 58 C.C.C. (3d) 255 (Ont. C.A.), this court held that this action was not an unreasonable search or seizure. The Supreme Court of Canada affirmed the decision of this court on the basis that, assuming there was a violation of the appellant’s rights under s. 8, the evidence was nevertheless admissible under s. 24(2): see 1991 21 (SCC), [1991] 3 S.C.R. 687. The appellant submits that the decision in Tessier has been implicitly overruled by the Supreme Court’s decision in R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, which dealt with a warrantless entry into an accused’s home in order to preserve evidence of drug trafficking while a search warrant was being sought.
[2] At the appellant’s trial on charges of impaired driving causing death and driving with more than eighty milligrams of alcohol in his blood, the trial judge admitted evidence obtained from the execution of the search warrant – namely the result of an analysis of the alcohol level in the appellant’s blood. Ultimately, the appellant was found guilty of driving over eighty (s. 253(b) of the Criminal Code, R.S.C. 1985, c. C‑46) and of the lesser included offences of dangerous driving (s. 249(1)) and impaired driving (s. 253(a)). In addition to appealing his conviction on the basis that the trial judge erred in his ruling respecting the placing of CFS seals on the vials of blood, the appellant raises a further ground of appeal. He submits that the Crown offered no evidence to exclude the possibility that he had consumed large quantities of alcohol immediately prior to being in the accident and that, as a result, his blood alcohol level was not the same at the time his blood sample was taken as at the time of the accident (hereinafter referred to as bolus drinking). The appellant also argues that the trial judge erred in his charge to the jury on this point. For the reasons that follow, I would dismiss both grounds of appeal.
I. Did the trial judge err in concluding that the placing of CFS seals on the appellant’s vials of blood did not violate his rights under s. 8 of the Charter?
[3] The following extracts from the trial judge’s ruling (see [1999] O.J. No. 3710 at paras. 1-5) provide a sufficient context for a consideration of the facts underlying his s. 8 reasons:
On June 26, 1997 Mr. Gettins was the driver of a southbound vehicle on Highway 11 which ran into the back of a dump truck. John Williamson, a passenger in the Gettins pick-up truck, was killed.
Constable Baillie was the first police officer to arrive at the scene of the accident. He arrived there at 6:17 p.m. He spoke briefly to Mr. Gettins, who was injured and receiving medical attention. He then confirmed that Mr. Williamson was dead. Constable Baillie was able to speak to the driver of the dump truck who gave his version of how the accident occurred. The explanation was that the dump truck had entered the highway from a sideroad to the west. It turned into the driving lane and was proceeding southbound when it was struck from behind on the left rear corner. The accident had occurred during daylight. The roadway was dry. Visibility was unlimited. There had been no traffic in the passing lane which would have prevented the Gettins vehicle from moving to that lane.
…Constable Baillie went to the hospital in Bracebridge where Mr. Gettins had been taken. His purpose was to see if alcohol had been a factor in the accident. Constable Bailie arrived at the hospital at 7:03 p.m. He spoke with the ambulance attendant who had assisted Mr. Gettins at the scene. She advised Constable Baillie that Mr. Gettins had an odour of alcohol on his breath and that he had admitted to consuming alcohol.
Constable Baillie then spoke to Dr. O’Shaughnessy, the emergency room doctor that evening. Dr. O’Shaughnessy advised him that he would not permit a breathalyzer test to be performed on Mr. Gettins. Constable Baillie understood the doctor to say that he would not draw any further blood from Mr. Gettins and that if the police wanted to get the blood that had been drawn they should obtain a search warrant.
Constable Baillie returned to the detachment in order to obtain some Centre of Forensic Sciences seals. He arrived back at the hospital and at 7:49 p.m. spoke with a nurse who advised that she had drawn five vials of blood from Mr. Gettins. Constable Baillie then went to the laboratory of the hospital where he sought to place C.F.S. seals on four of the five vials. The nurse in charge was not prepared to allow this without approval from her superior. That superior was consulted and he advised that, provided the doctor had no further need of the blood, the police could seal the remaining vials. Constable Baillie then placed seals on four vials which were in turn placed in the lab refrigerator.
[4] Following further investigation, Const. Baillie obtained a search warrant for the vials of blood on June 30. The warrant was executed the following day. There is no issue taken respecting the warrant on this appeal.
[5] Section 8 of the Charter provides that “Everyone has the right to be secure against unreasonable search or seizure.” In order for a search to be reasonable it must be (a) authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search was carried out must be reasonable (R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265). The appellant submits that placing the CFS seals on the vials of the appellant’s blood amounted to a search or seizure that was not authorized by law and that was unreasonable. If the appellant’s s. 8 rights were violated, he submits the evidence obtained from the execution of the warrant should have been excluded under s. 24(2) of the Charter.
[6] The term seizure was defined in R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417 at para. 26 as the “…taking of a thing from a person by a public authority without that person’s consent.” Similarly in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] 1 S.C.R. 425 Wilson J., in dissent but not on this point, defined a seizure at para. 89 as “the taking hold by a public authority of a thing belonging to a person against that person’s will.” In addressing the issue of seizure in this case, the trial judge held at para. 14:
While there is an argument to be made in the present case that the conduct of Constable Baillie did not amount to a seizure, given the ultimate control over the samples rested with the hospital staff, in the final analysis it does not matter whether it amounts to a seizure or not. This is because there was ultimately an independent judicial authorization for the seizure which, as in Tessier, meant that, if the placing of seals amounted to a seizure, it was not an unreasonable one.
I am satisfied that the placing of CFS seals on the vials of the appellant’s blood could amount to a seizure. The police officer “took hold” of the vials provided that the hospital did not need them. The real question, therefore, is whether the seizure was unreasonable.
[7] In Tessier, supra, the appellant had been taken to a hospital following a motor vehicle accident. As in this case, the police placed seals on samples of the appellant’s blood taken for medical purposes prior to obtaining a search warrant. The evidence was admitted at trial.
[8] At p. 256 this Court stated:
We find that it is not necessary, for the purposes of this appeal to decide whether we agree with the learned trial judge that the placing of seals on the blood samples by the police officer, as well as his request of the laboratory technician to hold them in the laboratory refrigerator because he would be back later to pick them up, constituted such control over them as to amount to a seizure. We do not have to decide that issue because we do not think that even if this was a seizure, it was unreasonable within the circumstances of R. v. Dyment (1988), 1988 10 (SCC), 45 C.C.C. (3d) 244, 55 D.L.R. (4th) 503, [1988] 2 S.C.R. 417. Here, unlike Dyment, there was reason to believe that the appellant had been drinking and here the police officer intended to and did subsequently obtain a search warrant.
Furthermore, it is reasonable, in the interests of both the Crown and the accused to take precautions to ensure that the blood samples would not be tampered with, pending receipt of judicial authorization to take the samples away for testing and for submission in evidence against the accused. There was no contravention of the Canadian Charter of Rights and Freedoms, s.8.
[9] The judgment of the Supreme Court dismissing the appeal was delivered orally by Lamer C.J.C. who stated at para. 2:
The appeal comes to us as of right. Assuming that there was an unreasonable seizure, given the circumstances of this case, more particularly that the analysis of the blood taken was under a valid search warrant, we are all of the view that the admission of the evidence at trial would not have brought the administration of justice into disrepute.
[10] The appellant submits that Tessier has been implicitly overruled by the Supreme Court’s decision in Silveira, supra. In Silveira, the Crown conceded that when the police entered and took possession of the appellant’s home to control it and to secure and protect evidence while a search warrant was obtained, it constituted a breach of the appellant’s s. 8 Charter rights. With the exception of L’Heureux-Dubé J., the members of the court accepted the Crown’s concession. On the issue of whether the actions of the police constituted a violation of s. 8 La Forest J., in dissent but not on this point, held at paras. 43-44:
[T]he unwarranted entry of six armed police officers into the living-room, kitchen, upstairs, and porch of a house is also a search, or at the very least, a seizure….
The very reason the police entered the appellant’s house was to control it so as to secure and protect evidence. The movements of the residents were monitored and restricted by the occupying officers specifically so none of the evidence of the police-observed drug transaction that might have been in the appellant’s house would be destroyed. Not knowing precisely where the anticipated evidence might be concealed, the police took control, seized the entire house and all of its belongings and detained its occupants as well. Accordingly, I have no difficulty in finding that securing an entire household constitutes a seizure. I add parenthetically that I wonder where the police thought they derived the power to hold the occupants of the house under “house arrest” in their own home with or without a search warrant. They did not even have reasonable grounds to believe any of these people were in any way involved in the crime they were investigating.
[11] La Forest J. rejected the argument that all the appellant lost was the opportunity to destroy the evidence. He held at para. 46:
What the appellant lost – and what we all lose when such intrusions take place – is the security guaranteed by the Charter that the police will not invade our homes without conforming to the established rule that constitutes the cornerstone of our liberties.
[12] He also considered the violation of the Charter rights of the appellant’s family to be relevant to the seriousness of the consequences of the breach and concluded at para. 47:
The serious intrusion of the legitimate high expectations of privacy in one’s home cannot be ignored in assessing the situation.
[13] Cory J. for the majority held at para. 140:
In my view, the respondent very properly conceded that the entry by the police, undertaken in order to secure the premises and prevent the destruction of evidence, was indeed a form of search not authorized by law. There is no place on earth where persons have a greater expectation of privacy than within their “dwelling-house”. No matter how good the intentions of the police may have been, their entry into the dwelling-house without a warrant infringed the appellant’s rights guaranteed by s. 8 of the Charter. Moreover, there can be no artificial division between the entry into the home by the police and the subsequent search of the premises made pursuant to the warrant. The two actions are so intertwined in time and in their nature that it would be unreasonable to draw an artificial line between them in order to claim that, although the initial entry was improper, the subsequent search was valid.
[14] La Forest J. would not have admitted the evidence obtained as a result of the search under s. 24(2). The majority upheld the finding by the lower courts that the violation was committed in good faith and in circumstances of urgency or necessity. However, the majority also made it clear that in the future, even if exigent circumstances existed, the evidence would likely be found inadmissible because it would be very difficult for the police to claim they had acted in good faith if they entered a dwelling house without prior judicial authorization. Further, it was up to Parliament to amend s. 10 of the Narcotic Control Act, R. S. C. 1985, c. N‑1 as rep. by S.C. 1996, c. 19, s. 94 if it wished to provide for an exception to the warrant requirement.
[15] The decisions in Tessier and Silveira demonstrate the importance of a contextual analysis.[^1] That analysis requires us to appropriately balance the goal of law enforcement with the individual’s interest in being left alone: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145 per Dickson J. at pp. 159-160. In this regard, in R. v. S.A.B., 2003 SCC 60 at para. 40 Arbour J. stated:
In weighing the reasonable privacy interests that are at stake…it is useful to consider the categories set out by La Forest J. in R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, at p. 428: privacy may include territorial or spatial aspects, aspects related to the person, and aspects that arise in the informational context.
[16] In Silveira, the entry into the dwelling house without a warrant was itself a grave violation of the spatial aspect of the appellant’s privacy interests. The entry of five police officers without a warrant in and of itself must have been very intimidating to the occupants of the house and an affront to their dignity. Further, as Cory J. noted, there is no other place in which a person has a greater expectation of privacy than his own home. The police also interfered with the physical integrity not only of the appellant but also of all those present because they were no longer free to move about the house as they wished while awaiting the arrival of the warrant.
[17] By comparison, placing CFS seals on vials of the appellant’s blood involves no interference with the spatial aspect of the appellant’s privacy interests. There was no intimidation or interference with the appellant’s dignity. The doctor and nurses in the hospital already knew that Const. Baillie was investigating the accident to see if alcohol was involved. There was no interference with the appellant’s physical integrity because the blood had already been taken. The police officer’s actions were brief, limited to sealing the vials of the accused’s blood, and the vials remained under the control of the hospital in the event they were needed for medical purposes.
[18] In Dyment, supra, the Supreme Court made it clear that a person’s privacy interest in his blood taken for medical purposes means that the blood can only be used for the purpose for which it has been given and cannot be used for other purposes without the donor’s consent or without a warrant. Here, there was no “use” of the appellant’s blood, in the sense that any information was obtained from it, prior to a search warrant being obtained.
[19] As La Forest J. said, in Dyment, supra, at para. 30:
If, as Dickson J. underlined in Hunter v. Southam Inc., s. 8 is intended to protect “people not places”, it is equally true that it is intended to protect people not things.
[20] The sealing of the vials of blood did not amount to an unreasonable search or seizure of the appellant because it did not interfere with the appellant’s spatial interests, dignity, physical integrity or his interest in controlling the release of information about himself.
[21] In view of my conclusion, it is not necessary to consider whether the evidence would have been admissible under s. 24(2) but, in the event I am wrong, the evidence would be admissible under s. 24(2) based on the same considerations I have articulated above. I would also add that the appellant was not compelled to participate in the creation of the evidence because the blood had already been taken for medical purposes. Further, inasmuch as the placing of CFS seals on vials of blood was held to be lawful by our Court and not specifically overruled, I would have no hesitation in holding that the breach in this case was not serious and that Const. Baillie acted in good faith.
[22] I would dismiss the first ground of appeal.
II. Bolus Drinking
[23] Where a police officer believes on reasonable and probable grounds a person has been operating a motor vehicle while impaired as a result of alcohol the officer may demand a sample of breath or, if this is impracticable, a sample of blood pursuant to s. 254 of the Criminal Code. Section 258(1)(d.1) of the Criminal Code deems the blood alcohol level at the time of testing to be the same as at the time that the offence was alleged to have been committed provided that, inter alia, each sample of blood was taken as soon as practicable and in any event not later than two hours after the time when the offence was alleged to have been committed. Const. Baillie received information that the accident had occurred at 6:07 p.m. and the blood samples were taken at 6:37 p.m. Because the appellant’s blood samples were not taken pursuant to a blood sample demand, the presumptions in s. 258(1)(d.1) did not apply and the Crown was required to prove its case in the ordinary way.
[24] The Crown called a toxicologist, William Robinson, to give evidence as to the appellant’s blood alcohol content at the time of driving, based on the sample taken about forty minutes later. Mr. Robinson testified that the appellant’s blood alcohol content at the time of the accident was likely 100 milligrams (hospital analysis) or 113 milligrams (as per his own analysis) in 100 millilitres of blood. In either case, the driver’s ability to operate the motor vehicle would be slightly impaired. Mr. Robinson’s evidence was predicated on an assumption that the appellant had not consumed any alcohol within the fifteen minutes preceding the accident. Mr. Robinson conceded that had the appellant consumed any appreciable amount of alcohol within the fifteen minutes preceding the accident, he would still have registered the same 100 or 113 milligrams blood alcohol content readings forty minutes after the accident, even though his blood alcohol content would not have exceeded the legal limit (80 milligrams) at the time of the accident.
[25] In R. v. Grosse (1996), 1996 6643 (ON CA), 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 at because,
[T]here 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. The trial judge was also entitled to consider that it was inherently unlikely that the respondent, in the space of less than 30 minutes, before embarking on his trip home to Brampton would consume the equivalent of nine ounces of alcohol. This was not a matter of taking judicial notice of drinking patterns but merely applying common sense as to how ordinary people behave. Further, the comments of Arbour J.A. in R. v. Johnson (1993), 1993 3376 (ON CA), 79 C.C.C. (3d) 42 at p. 51, 21 C.R. (4th) 336, 12 O.R. (3d) 340 (C.A.), apply:
[I]n the face of proven facts calling out for an explanation, the failure of the accused to testify has evidentiary significance when the accused is in a unique position to provide such an explanation. Failure to testify is not evidence of guilt. It cannot be used to relieve the Crown of its burden of proving guilt beyond a reasonable doubt. However, when an innocent explanation for an incriminating set of facts is not offered by the accused, or when his explanation comes solely from an out-of-court statement which has been introduced in evidence, if he does not submit himself to cross-examination, the judge or jury may properly draw from that an inference unfavourable to the accused [emphasis added].
In view of the circumstantial evidence that tended to demonstrate that the respondent had not engaged in bolus drinking, and the respondent’s unique position to offer an explanation, the trial judge was entitled to draw an adverse inference unfavourable to the respondent from his failure to testify to such an unusual drinking pattern.
[26] The appellant submits (1) that there was no evidence to negative bolus drinking in this case; and (2) that in making his closing submissions to the jury the Crown made an improper comment that suggested to the jury the appellant bore the burden of showing that he had consumed alcohol immediately prior to the accident and the trial judge’s charge fell short of clarifying this issue.
(a) Whether there was evidence of lack of bolus drinking for the jury to consider
[27] In this case Const. Baillie testified that he found no containers of alcohol in or around the vehicle. When he spoke to the appellant at the scene of the accident he did not detect an odour of alcohol on his breath and that when he spoke to him at the hospital he detected a slight odour of alcohol but no other indication that the appellant was impaired.
[28] In addition, the jury had heard the evidence. Const. Baillie agreed with the suggestion put to him in cross-examination that at the hospital the appellant had told him what times, places and quantities he had had to drink. He was then asked:
Q. Okay. And ultimately later on, I don’t think it was that night, but you go to those places and you speak to other people. Right?
A. Correct.
Q. And we’re going to hear from some of them tomorrow, I think. Right?
A. That’s correct.
[29] Prior to this, a receipt indicating the time a meal and some beer was paid for by the appellant at a restaurant in North Bay, the starting point of the return trip to Toronto, had been made an exhibit at trial. The time on the receipt was 12:38 p.m. The day after Const. Baillie testified, a waitress from the Castles Tavern in Sundridge was called. She recalled speaking to Const. Baillie about two men who had stopped for drinks and eaten pickled eggs at about two or two thirty on the afternoon of the accident. She could not identify the appellant or Mr. Williamson. The jury was told to disregard her evidence. The evidence of what Const. Baillie did as a result of speaking to the appellant was in evidence. Would it not therefore have been open to the jury to infer from Const. Baillie’s cross‑examination, the North Bay receipt, and the calling of the waitress from the Castles Tavern in Sundridge that these were the places the appellant had told Const. Baillie he had stopped?
[30] The jury also had in evidence the highway map showing the route the appellant had taken and the distances between North Bay, Sundridge and the scene of the accident near Bracebridge. They had evidence as to the speed that the appellant was traveling arising from the observations of Mr. Whitaker and Mr. Angelo when he passed them two to three kilometers before the accident and Mr. Raferty’s evidence about possible speeds based thereon. Based on all of this evidence it would have been open to the jury to infer that the appellant had not stopped to consume alcohol in the fifteen minutes prior to the accident because otherwise he could not have been where he was. In addition, there was evidence concerning the favourable driving conditions and an unexplained reason for the accident. The appellant, who was in a unique position to provide an explanation as to how the accident occurred did, not testify.
[31] I now turn to the issue of whether the trial judge’s charge to the jury was flawed.
(b) the trial judge’s charge to the jury
[32] The appellant submits that in making his closing submissions to the jury Crown counsel made an improper comment suggesting that the accused bore the onus of showing he had not consumed alcohol immediately prior to the accident and that the trial judge’s charge to the jury did not sufficiently address it. I will set out the passage in the Crown’s address and then indicate the passages in the judge’s charge that are relevant.
[33] The Crown stated:
The accused’s blood alcohol concentration as measured by Mr. Robinson on a very sensitive and accurate machine was 112 and 113. It was a very short time after the accident, so as he explained to you, there wouldn’t be very much difference. Usually the body gets rid of ten to 20 milligrams per hour, you heard that. They take an average of 15 as a good average. The accused’s blood alcohol concentration was 112 to 113 at 6:37 p.m., and as I was starting to say to you as came out in the evidence and I’m just reminding you of this, every hour people eliminate between ten and 20 milligrams. So they take 15 as a kind of a mid line. He gave you – Mr. Robinson then calculated that at 6:00 p.m., a little earlier it would either be, if you took the full range here, we’re taking the full range, it would either be 113 or it could be as high as 123. That is, it could either be the same or ten milligrams higher because ten milligrams would be half of an hour and 20 is the biggest number you can give credit to the accused for. So it could either be the same, meaning that there was no change or he eliminated a whole lot and it would have been 123. In order to give that, you were told, and this is true, that there has to be no alcohol consumption after the accident. Well, hello, there has to be no alcohol consumption immediately prior to the accident and we haven’t heard any evidence of that. And you’ll recall the evidence, that there were no containers found in the truck which suggested that any alcohol was being consumed at the time of the accident. So the figures of 113 to 123 compared to the legal limit of 80 puts him either 33 or 43 milligrams per 100 millilitres of blood over the legal limit [emphasis added].
[34] In his instructions to the jury relating to count one, impaired driving causing death, the trial judge told them:
(1) that they must be satisfied that the assumptions relied upon by Mr. Robinson, the Crown’s expert, had been proven beyond a reasonable doubt before they were entitled to accept his evidence which related the blood alcohol level at 6:37 p.m. back to 6:00 p.m.;
(2) that no single test or observation alone was conclusive as to whether or not the appellant’s ability to operate a vehicle was impaired. Rather, they should consider all the evidence that bore on his ability, “including such factors as manner of speech, smell of the breath, physical appearance and general conduct”;
(3) that before concluding, based only on his blood alcohol level, that Mr. Gettins’ ability to drive at 6:00 p.m. was impaired they “must keep in mind that the Crown must prove beyond a reasonable doubt that Mr. Gettins’ ability to operate a vehicle was impaired.” If, on a consideration of all the evidence, they had a reasonable doubt they must acquit him on this count;
(4) that the defence contended in its questions on cross‑examination and in its submissions that the accident was caused by Mr. Lupton pulling onto the highway leaving insufficient time for Mr. Gettins to stop. As such, any impairment could be too trivial or insignificant to be a legal cause of the death;
(5) that the Crown’s position was that Mr. Gettins was impaired by both alcohol and THC;
(6) that in Const. Baillie’s examination of the Gettins vehicle at the scene he found no evidence that alcohol had been consumed in the vehicle;
(7) that the evidence of Const. Pearsall was that the dump truck traveled south nine seconds on the highway before impact;
(8) that the evidence of Mr. Rafferty was that from the west edge of Highway 11 at High Falls Road it is possible to see one kilometer north and that he wondered how it would have been possible for the driver of the Gettins vehicle not to have seen the dump truck;
(9) that it was the position of the defence that there was no evidence from which they could conclude that Mr. Gettins did not drink alcohol within the fifteen minutes before 6:00 p.m. and that they should therefore find that one of Mr. Robinson’s assumptions had not been satisfied. Further, that there was no evidential foundation to support the calculations of Mr. Robinson relating the blood alcohol level at 6:37 p.m. to 6:00 p.m.;
(10) that Mr. Robinson agreed that constant speed, staying in one’s lane without weaving and not interfering with other traffic might suggest a driver is not impaired;
(11) that although Const. Baillie smelled alcohol on Mr. Gettins’ breath he observed no indicia of impairment when he spoke with him at the hospital;
(12) that Mr. Robinson could not say that 3.9 nanograms of THC meant that Mr. Gettins was impaired or even probably impaired by it given that the concentration of THC in the blood does not necessarily reflect the psychological or physiological condition of the individual;
(13) that Dr. Cooper for the defence said that one cannot reliably say when marihuana or hashish was smoked on the basis of the THC level in the blood, that there are huge variations between individuals, and that a person with THC levels of 3.9 nanograms in one millilitre in their blood would generally not be impaired;
(14) that Dr. Cooper’s evidence assumed uniform consumption of beer commencing at 12:38 p.m. and then one more 20 oz. beer fifteen minutes before 6:00 p.m., the result of which would be a blood alcohol level of 70 to 80 milligrams in 100 millilitres of blood;
(15) that the defence relied on the evidence of Const. Pearsall that the marks at the point of impact were consistent with the Gettins vehicle moving from the driving lane to the passing lane, that a number of factors affect acceleration and that the highway sign might have obstructed the view of Mr. Lupton; and
(16) that the offence of impaired driving was an included offence to count one. If the members of the jury were not satisfied beyond a reasonable doubt that Mr. Gettins was operating his vehicle while his ability to do so was impaired by alcohol and/or THC but they were not satisfied that his impaired operation caused the death, they should find Mr. Gettins not guilty as charged but guilty of the included offence of impaired driving.
[35] In relation to count two, driving over eighty, the trial judge told the jury that the Crown must prove beyond a reasonable doubt that immediately before the accident Mr. Gettins was driving while he had more than eighty milligrams of alcohol in 100 millilitres of blood. Also, he pointed out that the evidence he had referred to as supporting the positions of the Crown and defence on the issue of the level of blood alcohol had equal application to this count. He again repeated that they must be satisfied beyond a reasonable doubt of the assumptions Mr. Robinson made, namely that no alcohol was consumed shortly before 6:00 p.m. or after that time, and if not so satisfied they must acquit Mr. Gettins.
[36] The trial judge then made similar remarks in relation to count three, dangerous driving causing death. Toward the end of his charge, the trial judge told the jury that in respect of each count, if they accepted the evidence supporting the accused they must acquit on that count. Second, even if they did not accept as fact the evidence favouring the accused but had a reasonable doubt as a result of that evidence, they must acquit. Even if they did not have a reasonable doubt because they rejected the evidence favouring the accused as untrue, they must still determine whether the Crown had convinced them of the guilt of the accused beyond a reasonable doubt based on the evidence they did accept. He also told the jury that they were not compelled to choose between the evidence favouring the Crown and the evidence favouring the accused. He repeated that the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt and if it did not do so they must acquit.
[37] Having regard to the charge as a whole, the Crown’s alleged improper statement regarding the burden of proof with respect to consumption of alcohol was sufficiently addressed. The jury would have understood that they could not accept Mr. Robinson’s evidence unless the underlying assumption that the appellant had not consumed alcohol within fifteen minutes of the accident had been proven by the Crown beyond a reasonable doubt. The trial judge’s charge to the jury on the burden of proof was not flawed.
[38] I would dismiss the ground of appeal relating to bolus drinking.
[39] Based on these reasons I would dismiss the appellant’s appeal respecting his convictions.
RELEASED: Dec 8/03
“KMW”
“Karen M. Weiler J.A.”
“I agree J.C. MacPherson J.A.”
“I agree E.A. Cronk J.A.”
[^1]: See also R. v. Colarusso, 1994 134 (SCC), [1994] 1 S.C.R. 20 at para. 73 where La Forest J. states “It is obvious from Dyment that all the surrounding circumstances must be assessed to determine whether there has been a search by law enforcement officers, and I have no doubt the same is true in assessing the reasonableness of a search...”