DATE: 20050603

DOCKET: C42069

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – VI LY (Appellant)

BEFORE: SIMMONS, CRONK AND MACFARLAND JJ.A.

COUNSEL: Peter Lindsay for the appellant Karey Katzsch for the Crown respondent

HEARD: May 24, 2005

On appeal from the judgment of Justice Janet Wilson of the Superior Court of Justice dated June 25, 2004 dismissing an appeal from the conviction entered by Justice Geraldine N. Sparrow of the Ontario Court of Justice on February 3, 2004.

ENDORSEMENT

[1] The appellant appeals from the decision of a summary conviction appeal judge affirming his conviction for driving with a blood-alcohol level exceeding the legal limit.

[2] We see no merit in the appellant’s submissions that the trial judge rejected his evidence on inappropriate grounds or that she took judicial notice improperly of the effects on him of alcohol consumption. On our review of the record, the trial judge did not misapprehend the appellant’s evidence and her credibility findings bore directly on his ability to recall the events of the evening in question. Further, when the trial judge rejected as incredible the appellant’s testimony that after seven beers he was not feeling the effects of alcohol, her finding was grounded in the appellant’s own the evidence.

[3] During oral argument, the appellant raised two additional issues. First, he claimed that the trial judge erred by considering his evidence in isolation from the expert’s report and the breathalyzer readings, which he submitted enhanced the credibility of his evidence relating to his defence of bolus drinking.

[4] We disagree. Rather than enhancing the credibility of the appellant’s evidence, in our view, the expert’s report and the breathalyzer readings simply confirmed that his testimony was capable of belief. Moreover, reading the trial judge’s reasons fairly, we see no reason to conclude that she ignored or discounted the proposition that the appellant’s evidence was plausible. Rather, before turning to the question of whether the expert’s report tended to show that the appellant’s blood-alcohol level at the time of the alleged offence did not exceed .08, the trial judge determined that she did not believe the appellant’s evidence based on factors specific to his version of the events in question.

[5] While it may have been preferable for the trial judge to have referred specifically to R. v. W.(D.)[^1] in making her credibility findings, when read as a whole the trial judge's reasons indicate that she rejected the appellant’s evidence i.e. his evidence failed to raise a reasonable doubt. Having rejected the appellant’s evidence, the trial judge was entitled to find, as she did, that the expert’s opinion concerning the appellant’s blood-alcohol level at the time of the offence lacked a proper foundation in the evidence.

[6] Second, the appellant submitted that the trial judge erred in relying on R. v. Heideman (2002), 168 C.C.C. (3d) 542 (Ont. C.A.) for the proposition that an expert’s report must be probative of the level of alcohol in the accused’s blood at the time of the offence. We disagree. Although there may be conflicting jurisprudence in other provinces, Heideman is binding authority in Ontario: see R. v. Cook, [2005] O.J. No. 442 (C.A.). In this case, the appellant’s expert failed to explain his opinion that there was a “good chance” that the appellant’s blood alcohol concentration at the time of the offence did not exceed the legal limit. Accordingly, it was open to the trial judge to conclude that the expert’s report was “insufficiently clear to support the defence position that the .08 level had not yet been reached”.

“Janet Simmons J.A.”

“E. A. Cronk J.A.”

“J. MacFarland J.A.”

[^1]: R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.).