Court File and Parties

Court File No.: Guelph 1649/10 Date: 2012-04-11 Ontario Court of Justice

Between: Her Majesty the Queen — and — Richard Snider

Before: Justice G. F. Hearn

Heard on: November 30, 2011 and February 8, 2012

Reasons for Judgment released on: April 11, 2012

Counsel:

• Ms. Marilyn Dolby, for the Crown
• Mr. Stephen Menzies, for the accused Richard Snider

Reasons for Judgment

Hearn, J.:

Background

[1] Mr. Snider came before the court on November 30, 2011 and at that time entered a plea of not guilty to a count alleging that on or about the 19th day of June 2010 in the Town of Minto having consumed alcohol in such a quantity that the concentration thereof exceeded 80 milligrams of alcohol in 100 millilitres of blood did operate a motor vehicle.

[2] Prior to the commencement of the trial counsel for the accused had served a Notice of Application alleging that Mr. Snider's rights under s. 8 of the Charter had been violated and as a result he requested relief pursuant to s. 24(2) of the Charter. Specifically, the exclusion of the breath tests ultimately obtained on the day of the offence following the arrest of Mr. Snider.

[3] The Crown filed a response denying any such breach and asking that the application be dismissed. Alternatively, the Crown submits that if in fact Mr. Snider's Charter rights were breached on a proper analysis under s. 24(2) of the Charter, no evidence should be excluded.

[4] The matter proceeded as a blended hearing and the Crown called one witness on the application and trial matters. No evidence was called by the defence on the application but the defence did call evidence on trial issues should the application not be successful.

[5] The matter was completed on November 30, 2011, and adjourned to February 8, 2012 for judgment. On the return of the matter on February 8, 2012 the court requested further submissions on a number of issues and the matter was adjourned to today's date for ruling on the application and the trial issues thereafter, if necessary. On February 8, 2012 the court invited counsel, if they wished, to make further written submissions with respect to the issues. The Crown and the defence have both served and filed additional written material which the court has reviewed. On February 8, 2012 one of the issues addressed with counsel was with respect to the expert's report which was unsigned and appeared to contain an error with respect to the timing of one of the events referred to in the letter. Clarification has not been forthcoming, but the court has proceeded on the basis that the report is technically in error and such error was simply a typographical one.

Evidence of the Crown

1. Evidence of Cst. Steven Maxwell

[6] Constable Maxwell is a member of the Ontario Provincial Police and has been for about fifteen years. On June 19, 2010, he was conducting a RIDE program in the Township of Minto just north of the Village of Clifford on Hwy. 9.

[7] At 7:36 p.m. that evening while conducting that program, a motor vehicle driven by Mr. Snider entered the RIDE location.

[8] Once stopped within the program the officer approached the open driver's window, advised Mr. Snider that a RIDE spot check was being conducted and asked Mr. Snider if he had consumed any alcohol that day to which Mr. Snider responded, "No I haven't had anything." The officer then asked, "Nothing?" and again Mr. Snider answered no. The officer asked Mr. Snider where he was heading and Mr. Snider indicated "home". At this time the officer observed several cases of what appeared to be empty beer bottles in the rear of the vehicle and indicated that he could "detect a smell of stale alcohol on Mr. Snider's breath".

[9] The officer advised Mr. Snider that he could smell "alcohol", to which Mr. Snider responded, "That must be the empties. I haven't had any." The officer then again stated he could smell alcohol on Mr. Snider's breath and advised Mr. Snider that "we were going to put this to the test".

[10] The officer testified he had formed the suspicion that Mr. Snider had alcohol in his "system" and read the demand for the approved screening device at 7:36 p.m.

[11] The officer asked for documentation and Mr. Snider apparently had some difficulty locating his ownership, etcetera. He spent about a minute looking for it and the officer eventually told Mr. Snider not to worry about it. Mr. Snider exited his vehicle and accompanied the officer to the cruiser.

[12] Upon exiting the officer noted Mr. Snider to be walking slowly or as he put it "cautiously" with his hands in his pockets.

[13] The approved screening device was produced, properly described by the officer and found to be in proper working order. The officer then explained four scenarios to Mr. Snider that could result from the testing. At 7:38 p.m. the instrument was warmed up and ready for use. The officer self-tested it and found it to be in working order. At 7:39 p.m. Mr. Snider provided a sample of his breath into the approved screening device which was suitable for analysis and resulted in a "fail".

[14] At that point the officer formed the reasonable grounds to believe that Mr. Snider was driving with over 80 milligrams of alcohol in 100 millilitres of blood and arrested him.

[15] The officer testified that he looked into the various cases in the rear of the van driven by Mr. Snider and did not see any evidence of open alcohol in the vehicle and was able to locate the pouch where Mr. Snider's documentation was located.

[16] When asked about the "stale odour of alcohol on his breath" the officer noted as follows:

A: I've been doing this for fifteen years. I've arrested a lot of people for driving with over 80 and impaireds, and I've been an Intoxilyzer technician for ten years. I've dealt with a lot of impaired people. I'm pretty adept at determining stale from fresh alcohol.

Q: On the breath?

A: Yes, I believe this was stale alcohol, that it had been consumed sometime prior.

[17] The officer also noted that he had observed the flushed red face of Mr. Snider, but candidly pointed out that is the way Mr. Snider presented in court and also noted red, glossy eyes which again he noted in court were also red.

[18] Following the breath tests at the detachment (and there is no issue taken with the conduct of the tests or the timing of the taking of such tests), Mr. Snider was served with copies of various documents including the Certificate of Qualified Technician, Cst. Tolan, who conducted the tests on an Intoxilyzer 8000C. Readings at 8:56 p.m. and 9:18 p.m. on June 19, 2010 were each in the amount of 100 milligrams of alcohol in 100 millilitres of blood.

[19] In cross-examination the officer confirmed Mr. Snider had stopped within the program as instructed and that Mr. Snider's complexion and eyes appeared to be similar in court as he had noted on the date of the stop. He advised that Mr. Snider was polite to him, seemed to understand what was being said and he had not noted any slurring of speech.

Evidence of the Defence

1. Evidence of Richard Snider

[20] Mr. Snider was sixty years of age at the time of the incident. He testified as well that on the date in question he weighed 210 pounds and was six feet in height.

[21] Mr. Snider stated that he works as a production film technician and on the day in question he and some colleagues were working removing some trees from the area for transport to Toronto for a film set up on the following Monday. He had started at 8:00 a.m. and he and the others had loaded the truck during the afternoon. The truck was fully loaded and left the site which is located in close proximity to where the RIDE program was conducted.

[22] He denies having consumed alcohol during the course of that day as he does not make it a policy to drink alcohol while working. None of his colleagues had consumed alcohol either during the course of the day which he described as hot and sticky with temperatures close to thirty degrees Celsius.

[23] The truck left about 6:30 p.m. and Mr. Snider and his colleagues then made their way to the shop. When at the shop, which Mr. Snider estimates was about 6:45 p.m., he and the others consumed some beer. Mr. Snider testified that his son, as a Father's Day present, had brought out twelve cans of beer each with a volume of 500 millilitres and an alcohol percentage of five percent. His son together with two other individuals including Mr. Furlong, who gave evidence at the trial, then consumed the beer.

[24] Mr. Snider described them as being thirsty, work had stopped, they were "off the clock" and that from the time he started drinking until approximately 7:30 p.m. to 7:31 p.m. when he left the shop he consumed four of the beer. He was not certain what the others had consumed, but believed his two colleagues had three and his son had two.

[25] With respect to the consumption of the beer and its rate, Mr. Snider indicated that it had been a hot day and the first beer "went down pretty easily". He and the others then paced themselves and had three beers up until about 7:20 p.m. to 7:25 p.m.

[26] At that time they were leaving, his colleagues left and he was about to follow at 7:25 p.m. As he was locking up, he noticed there was one beer left so he finished the beer that he had quickly and then drank the fourth can before he "hit the road". He describes the finishing of the third can and the fourth can taking place within the last minute to two minutes before he left.

[27] His counsel questioned him as to how much of the third beer had been left during that period of time and Mr. Snider indicated, "Maybe the last third, it was more than a quarter, but at least the last third of it." The fourth beer was then consumed after that and Mr. Snider left the shop at about 7:30 p.m. to 7:31 p.m. He was stopped approximately five minutes later in the RIDE program.

[28] Mr. Snider was cross-examined with respect to the rapidity within which the beer had been consumed and was asked whether or not the consumption of alcohol caused some concern about his ability to drive. He responded that he did not believe the alcohol had an impact on him as he felt "in control of everything", but did agree with the Crown that putting back "four tallboys in forty minutes" was not moderate drinking. He acknowledged that it was "bad judgment on my part", and in fact was abnormal for him. He confirmed that he believed his friends each had three beers as Mr. Furlong does not drink more than that when driving and believed his son had two.

[29] Mr. Snider confirmed that the beer cans found within the vehicle by the officer had been empties that had been within the shop and were to be returned the next day.

2. Evidence of James Furlong

[30] Mr. Furlong was working with Mr. Snider on the day in question. They have been friends for a number of years. He presented as candid and forthright in describing the work during the course of the day, the fact that no alcohol had been consumed and the ending of work at about 6:30 p.m.

[31] They cleaned up, went to the shop and consumed alcohol. He could not remember if they were cans or bottles, but believed it was "Stella" which is what Mr. Snider had indicated.

[32] Mr. Furlong testified that he had three beers as he never drinks more than three when driving. He did confirm that he was absolutely "not" keeping track of what others were drinking and that he left the shop before Mr. Snider.

[33] In cross-examination he indicated that he consumed three beers between 7:00 p.m. and 7:30 p.m. He also confirmed that Mr. Snider's son had brought the beer to the shop and four of them had consumed the beer within a relatively short period of time after working and prior to leaving.

3. Evidence of Dr. S. Krishnan

[34] Dr. Krishnan, a qualified toxicologist, provided a report dated November 21, 2011 which was filed on consent of the Crown. Dr. Krishnan sets out in his report the blood alcohol concentration in Mr. Snider's blood calculated at various times based on the evidence of consumption as testified to by Mr. Snider. The report sets out that the readings ultimately obtained at the police station were 103 milligrams of alcohol in 100 millilitres of blood at 8:56 p.m. and 105 milligrams of alcohol in 100 millilitres of blood at 9:18 p.m. on that date. There is actually no evidence before the court that those were the readings as the readings had been truncated and Cst. Maxwell did not testify as to the actual readings, however there seems to be no issue that the readings set out in the report were those provided by defence counsel to Dr. Krishnan and were the actual readings prior to truncation.

[35] Dr. Krishnan also sets out in his report that given the drinking scenario suggested by Mr. Snider the readings would be at 8:56 p.m. between 96 to 118 milligrams of alcohol in 100 millilitres of blood and at 9:18 p.m. between 88 to 100 milligrams of alcohol in 100 millilitres of blood. I note that the report, and I am assuming this is an error and would be reasonably corrected by Dr. Krishnan, refers to the second noted readings to be 7:36 p.m. Given the report as it is drafted it is clear that the time is in error and the doctor actually meant 9:18 p.m.

[36] Relevant to the readings at the time of the stopping at the RIDE program, Dr. Krishnan has set out three scenarios:

1. Assuming 1.33 cans were consumed within ten minutes of the stop at 7:36 p.m. Mr. Snider's readings could be between 76 to 84 milligrams of alcohol in 100 millilitres of blood.

2. Assuming 1.5 cans were consumed within ten minutes of the stop at 7:36 p.m. the readings would have been between 70 to 79 milligrams of alcohol in 100 millilitres of blood.

3. Assuming 2 cans were consumed within ten minutes of the stop at 7:36 p.m. the readings would have been between 53 to 61 milligrams of alcohol in 100 millilitres of blood.

Issues to be Determined

[37] The Crown and the defence have reasonably narrowed the issues in this matter. There is no issue taken with respect to the readings at the detachment and the defence concedes that the approved instruments used at the detachment, as well as at the scene, were in proper working order, functioning properly, and were properly operated.

[38] The issues that have evolved are as follows:

1. Did Cst. Maxwell have the necessary reasonable suspicion to make the demand under s. 254(2) requiring Mr. Snider to provide a sample of his breath into an approved screening device?

2. If in fact such grounds did not exist and the court therefore finds a violation of Mr. Snider's s. 8 rights under the Charter, should evidence be excluded upon a proper analysis of s. 24(2)?

3. If the court finds that no such breach existed or if such breach did exist evidence should not be excluded, the only trial issue to be determined is whether or not Mr. Snider's evidence concerning his pattern of drinking, if accepted, raises a reasonable doubt that at the time of the stop at the RIDE program at 7:36 p.m. Mr. Snider's blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood?

Analysis of Facts and Law

a) Issue of Reasonable Suspicion

[39] In order for there to be a valid approved screening device demand pursuant to s. 254(2) of the Criminal Code, the demand:

a) must be made by a peace officer;

b) with reasonable grounds to suspect

(i) that a person has alcohol or a drug in their body; and

(ii) that person has within the preceding three hours operated or had care and control of a motor vehicle.

[40] The reasonable suspicion must be established on a subjective and objective basis. The officer must have an honestly held suspicion that the person has alcohol or a drug in his body and objectively there must exist reasonable grounds for that belief (see Regina v. Bernshaw, [1994] S.C.J. No. 87 and Regina v. Mutisi [2011] O.J. No. 4546). The case law clearly establishes that the standard of reasonable suspicion is the lowest legal standard contained within the Criminal Code and is not onerous. In the context of alcohol the test is consumption alone and a smell of alcohol on an accused's breath is sufficient to establish this. An officer does not have to accept the accused's denials that he or she has consumed alcohol and there is no requirement that an officer believe an offence has actually been committed (see Regina v. Lindsay, [1999] O.J. No. 870; Regina v. MacPherson (2000), 150 C.C.C. (3d) 540).

[41] The words "reasonable suspicion" are not some magical incantation or formula which must be uttered precisely by the witness. It is quite sufficient if the testimony found reliable, taken as a whole, establishes that the witness had the minimal reasonable suspicion. If the smell of alcohol comes from the vehicle whether clothing or even as described as "from the person" then this would be insufficient evidence to satisfy the section absent any other indicia to rely upon. Where the officer draws, however, on evidence of an odour of alcohol on their breath it is a safe and reasonable assumption to suspect alcohol in the body. It is whether or not the totality of the evidence leads to a reasonable conclusion that the officer's subjective state of mind was that the standard of reasonable suspicion of alcohol in the body was met.

[42] Here the evidence is clear that Cst. Maxwell was suspicious of Mr. Snider's response to his question as to whether or not alcohol had been consumed that day. Mr. Snider had responded that he had not had "anything". The officer then queried Mr. Snider in that regard when he asked him "nothing" and again Mr. Snider answered no. With those responses in mind, the officer indicated to Mr. Snider that he could in fact smell alcohol and Mr. Snider offered that the smell of alcohol was attributed to the empties as he had not consumed alcohol. This was after the officer had indicated clearly to Mr. Snider that he could smell stale alcohol on Mr. Snider's breath. In light of that and the denials and based on his past experience with respect to "stale alcohol" meaning alcohol had been consumed sometime prior, the officer formed the suspicion that Mr. Snider had alcohol in his system.

[43] It was then that the demand for the approved screening device was made and the test ultimately conducted. Although not specifically stated in Cst. Maxwell's evidence, there is a reasonable inference that he simply did not believe Mr. Snider as Mr. Snider's denial did not ring true in view of the odour of alcohol which the officer indicated he could smell on Mr. Snider's breath (and not simply from the car). It was then that he made the demand to put the matter to "the test". Cst. Maxwell I find was very direct with Mr. Snider, confronted him with his concerns and I find subjectively and objectively the officer could reasonably draw a suspicion that Mr. Snider did indeed have alcohol in his system. I find Cst. Maxwell subjectively believed such was the case and objectively that belief was reasonable.

[44] As a result the application will be dismissed.

b) Issue of the Presumption of Identity

[45] Where samples of an accused's breath are taken pursuant to a demand under s. 254(3) of the Criminal Code the Code establishes separate presumptions in s. 258(1) to facilitate proof of an accused's blood alcohol level. There are effectively two presumptions of identity and one presumption of accuracy.

[46] The presumption of accuracy in s. 258(1)(g) establishes prima facie that the technician's reading provides an accurate determination of the blood alcohol level at the time of the tests. In this particular case there is no issue taken with respect to the results of the testing on the Intoxilyzer 8000C. The issue here is with respect to the presumption that those test results accurately reflect the blood alcohol level of Mr. Snider at the time of his driving.

[47] The presumptions of identity are set out in s. 258(1)(c) and s. 258(1)(d.1) of the Criminal Code.

[48] Pursuant to s. 258(1)(c) an accused's blood alcohol level at the time when the offence was alleged to have been committed is the same as the level at the time of the Intoxilyzer tests. Pursuant to s. 258(1)(d.1) of the Criminal Code where the alcohol level exceeds 80 milligrams at the time of the tests there is a presumption that it also exceeded 80 milligrams at the time when the offence was alleged to have been committed (see Regina v. Boucher 2005 SCC 72, [2005] S.C.J. No. 73 and Regina v. Gibson 2008 SCC 16, [2008] S.C.J. No. 16).

[49] In Regina v. St. Pierre, [1995] S.C.J. No. 23, at paragraph 23 the Supreme Court noted:

The scheme established in the Criminal Code for proving the offence of "over 80" contains presumptions to assist the Crown in surmounting two important evidentiary hurdles. But for these presumptions, the Crown's task would be significantly more difficult. It is crucial, therefore, to keep in mind that presumptions are merely legal or evidentiary shortcuts designed to bridge difficult evidentiary gaps, and that they are rebuttable upon the leading of "evidence to the contrary". If such evidence to the contrary is led, the Crown can still proceed to try to prove its case without the benefit of these evidentiary shortcuts.

[50] Following St. Pierre, the Criminal Code was amended to add s. 258(1)(d.1) which effectively expanded the presumption of identity. That section has now been further amended.

[51] Section 258(1)(d.1) now reads as follows:

(d.1) if samples of the accused's breath or a sample of the accused's blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both

(i) a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and

(ii) the concentration of alcohol in the accused's blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;

[52] This section provides that where an accused's blood alcohol level exceeded 80 milligrams at the time of the testing, it is presumed in the absence of evidence to the contrary to have exceeded 80 milligrams at the time when the offence was alleged to have been committed. The effect of this section was not to change the type of evidence needed to rebut the presumption of identity in s. 258(1)(c) of the Criminal Code or the presumption of accuracy in s. 258(1)(g), but to reinforce the presumption of identity (see Regina v. Boucher 2005 SCC 72, [2005] S.C.J. No. 73 at paragraph 22).

[53] Mr. Snider challenges the presumption of identity, but accepts the testing at the time on the Intoxilyzer 8000C resulted in readings that were accurate at that time. He effectively argues that the reading at the time of the testing is not the reading at the time of the operation of his vehicle, not because the reading at the time of testing was inaccurate, but simply because it does not reflect his blood alcohol level at the time of driving. He states this is the case as a result of the late or bolus consumption of alcohol immediately before being stopped in the RIDE program.

[54] In dealing with this issue, initially it is necessary to determine the facts in play. The defence has called evidence on this issue and that evidence is comprised of the evidence of Mr. Furlong and Mr. Snider. Mr. Furlong is of some assistance as he corroborates the evidence of Mr. Snider with respect to the events of that particular day and the late consumption of alcohol by the group prior to departing the shop. He is of little to no assistance in determining what Mr. Snider consumed during that period of time and indeed his recollection of what he might have consumed is somewhat vague, but I accept his evidence that there was:

a) late consumption of alcohol at the shop;

b) no consumption of alcohol by any of the group during the course of the day; and

c) the group left the shop shortly before Mr. Snider did as testified to by Mr. Snider.

[55] With respect to the evidence of Mr. Snider, I have considered that evidence and I find that Mr. Snider presented as a credible and reliable witness. He was forthright, candid and I find quite honestly testifying as to his consumption on the day in question. He was consistent in cross-examination and I accept his evidence. I would make it clear it is not simply being left in reasonable doubt by the evidence, I accept his evidence. In doing so I have not considered the failure on the approved screening device (see Regina v. Coutts (1999), 136 C.C.C. (3d) 225) nor Mr. Snider's statements to Cst. Maxwell at roadside, i.e., the denial of consumption. I have not considered those issues in assessing the credibility of Mr. Snider, but even if I was in a position legally to consider those matters in such assessment I would still find Mr. Snider to have been an honest witness and accepted his evidence. I say that fully appreciating it might belie common sense and certainly good judgment for individuals, particularly such as Mr. Snider to consume large quantities of alcohol over a very short period of time and then operate a motor vehicle. Notwithstanding that, however, I accept that Mr. Snider exercised very bad judgment on the date in question and consumed the alcohol in the manner he testified to.

[56] I find as a fact in this regard the following:

1. Mr. Snider and the others worked throughout the day on June 19, 2010 from about 8:00 a.m. until 6:30 p.m.

2. Mr. Snider and the others attended at a shop on the property and at about 6:45 p.m. commenced to consume beer which had been brought to the location by his son. That beer consisted of cans of a volume and alcohol percentage suggested in the evidence.

3. The group consumed the beer in the quantities suggested by Mr. Snider and the drinking took place over a period of about 45 minutes. The other three in the group left the shop before Mr. Snider and I accept at that point Mr. Snider still had remaining "more than a quarter, but at least the last third" of the third beer. He then consumed that and the entire fourth beer, leaving the shop at 7:30 p.m. to 7:31 p.m. and was stopped approximately five minutes later at 7:36 p.m. in the RIDE program. I find then on Mr. Snider's evidence which I accept that he consumed one and a third cans of beer within ten minutes of being stopped and a total of four beers over the timeframe from 6:45 p.m. until 7:30 p.m. to 7:31 p.m.

4. I also accept the evidence of Dr. Krishnan as noted in his report with respect to the blood alcohol concentration calculated at 7:36 p.m. with 1.33 cans of beer being consumed within ten minutes of stop as being within the range of 76 to 84 milligrams of alcohol in 100 millilitres of blood. On the basis of that consumption and that timeframe together with the other alcohol consumed I accept at the time of testing at the detachment the readings as noted in Dr. Krishnan's report are within the range as set out in the certificate.

[57] The real issue is not whether I accept Mr. Gibson's evidence or not as I do accept that evidence. The issue then becomes whether or not that evidence is in any event sufficient to rebut the presumption of identity set out in the Code and specifically in s. 258(1)(d.1). Again, s. 258(1)(d.1) sets out that the results of the analysis is proof that the concentration of alcohol in the accused's blood at the time when the offence is alleged to have been committed exceeded 80 milligrams of alcohol in the absence of evidence tending to show that the consumption of alcohol was consistent with both:

a) the concentration of alcohol in the accused's blood did not exceed 80 milligrams of alcohol when the offence was alleged to have been committed; and

b) the concentration of the alcohol in the accused's blood as determined under paragraphs (c) and (d) as the case may be at the time the samples were taken.

[58] The section requires that the evidence show the consumption of alcohol resulted in a blood alcohol concentration that was consistent with the test results and that Mr. Snider's blood alcohol content was below the legal limit at the time of the driving. Under s. 258(1)(d.1) then there must be evidence which shows both.

[59] The court has accepted Mr. Snider's evidence and also the evidence of the expert. At its highest, Mr. Snider's evidence together with the expert evidence indicates at the time of driving Mr. Snider's blood alcohol concentration would have been between 76 to 84 milligrams of alcohol per 100 millilitres of blood, i.e. Mr. Snider could have been under or he could have been over the legal limit. This leaves the court in the position of having in place what has been referred to as straddle evidence and the question then becomes whether or not the court is to be left in reasonable doubt given the wording of s. 258(1)(d.1) and that form of evidence.

[60] The issue of straddle evidence was considered in Regina v. Gibson [2008] S.C.C. 16. That case was decided under the previous version of s. 258(1)(d.1) but is still applicable here as the current section requires that an accused still show that his or her blood alcohol concentration did not exceed 80 milligrams of alcohol in 100 millilitres of blood at the time of driving. In that case the Supreme Court actually heard two appeals, one of Gibson and one of MacDonald. There, at the trial level both accused had been charged with over 80 and provided breath samples that exceeded the legal limit. At their trials they introduced evidence as to the pattern of drinking at the material time and both adduced expert evidence to rebut the presumption in s. 258(1)(d.1) of the Criminal Code that the readings provided proof that their blood alcohol concentrations exceeded the legal limit at the time of driving. The expert evidence, similar to the evidence here, with respect to the blood alcohol concentration at the time of driving was expressed in terms of a range of possible blood alcohol concentrations considering the amount of alcohol said to be consumed, the pattern of drinking, the accused's age, height, weight and gender. In each case the range of the hypothetical blood alcohol concentration straddled the legal limit, as it does here. In MacDonald's case, an expert also had conducted tests on MacDonald to determine his elimination rate but those tests had been determined six months after the offence date and based on the elimination rate determined during that testing MacDonald's blood alcohol concentration would actually have been under the legal limit at the time he was stopped by the police given the scenario that the defence evidence portrayed.

[61] The matter eventually reached the Supreme Court of Canada and the issue of straddle evidence was discussed at length. Although there is no majority judgment with respect to the issue in Regina v. Gibson as stated in the Crown's written submissions, four of the justices held that straddle evidence was not capable in law of rebutting the presumptions set out in s. 258(1). Three of the justices held that it would be very rare for such evidence to be capable in law of displacing the presumptions and whether it actually did raise reasonable doubt would have to be determined by the trier of fact when assessed in light of all of the evidence including the approved instrument results. Although four of the justices held that such evidence could never displace the presumptions, that statement was clarified somewhat by three of the other justices who substituted the word "rarely" for "never" on the grounds that "never" would violate the presumption of innocence.

[62] Mme Justice Charron speaking for the four justices in stating that such evidence would never be capable indicated as follows:

In order to displace the presumption, the evidence must show, therefore, that based on the amount of alcohol consumed, the accused's blood alcohol concentration would not have been above the legal limit at the time of driving, regardless of how fast or slow the accused may have been metabolizing alcohol on the day in question. Of course, the court need not be convinced of that fact. It is sufficient if the evidence raises a reasonable doubt.

[63] Mr. Justice LeBel for the three justices concurring in the result noted as follows:

In sum, straddle evidence is by its very nature consistent with both innocence and guilt. Accordingly, such evidence will rarely suffice on its own to raise a reasonable doubt as to the accuracy of a breathalyzer result admitted in accordance with the relevant provisions of the Criminal Code. For the reasons given, however, it is not inadmissible on that ground. Evidence that does not in itself tend to show that the blood alcohol ratio of the accused was at or under the legal limit cannot be excluded for that reason. Here as elsewhere, ultimate sufficiency and threshold admissibility are conceptually distinct issues. Once straddle evidence is admitted, it will be left to the trier of fact to determine whether that evidence, considered in light of the evidence as a whole, raises a reasonable doubt as to the accuracy of the breathalyzer result. And I hasten to add that the straddle evidence and the other evidence relied on by the defence will warrant an acquittal only if it tends to prove that the blood alcohol level of the accused at the relevant time did not exceed 80 milligrams. In cases where the range of possible blood alcohol levels is based on average elimination rates across the population as a whole, straddle evidence will rarely be sufficient in itself to raise a reasonable doubt about the presumed fact that the blood alcohol level of the accused exceeded the legal limit. It nevertheless remains admissible for the reasons given and may, bearing in mind the evidence as a whole, constitute evidence to the contrary for the purpose of rebutting the presumption in s. 258(1)(d.1). Whether a reasonable doubt exists must be assessed in light of all the evidence, given that the Crown has adduced evidence, in the form of a breathalyzer test result, of a blood alcohol content over the legal limit at the time of the offence.

[64] Cases that have considered what the ratio actually is in Regina v. Gibson seem to have adopted the reasoning of Justice Charron. See Regina v. Beards, [2008] ABPC 255, Alberta Provincial Court, Regina v. Eddingfield, [2008] SKCA 84, Saskatchewan Court of Appeal, Regina v. Hughes, [2008] ABQB 336, Alberta Queen's Bench, leave to appeal denied [2009] ABCA 11, Alberta Court of Appeal, and Regina v. Almond, [2011] O.J. No. 3591.

[65] Given the reasoning in Gibson and the clear wording of s. 258(1)(d.1) then and as it now reads, the presumption of identity referred to within that section can only be rebutted by evidence that tends to show the accused's blood alcohol concentration did not exceed the legal limit. Here, the evidence is not conclusive in that regard and even accepting the evidence of Mr. Snider as I do, that evidence does not tend to show that his blood alcohol concentration did not exceed the legal limit at the time of driving. Here, there is no evidence with respect to rate of elimination at the relevant time which may have assisted Mr. Snider as the blood alcohol concentration might have taken into account such specific rate of elimination as opposed to the general range between 10 and 20 milligrams set out in Dr. Krishnan's report. As noted by the four justices in Gibson, straddle evidence is an attempt to defeat the presumption set out in the Code and as such does not tend to show that an accused's blood alcohol concentration did not exceed the legal limit at the time of the offence. Straddle evidence merely confirms that the accused falls into the "category of drivers targeted by Parliament", namely those who drive having consumed enough alcohol to reach a blood alcohol concentration exceeding 80 milligrams. The fact that Mr. Snider may have been over or under on the evidence before the court, including his own evidence, is not sufficient in the circumstances of this particular case as such evidence is not capable of raising a reasonable doubt. Further, there is nothing in the evidence otherwise which would enable the court if it was so inclined to adopt the reasoning of Justice LeBel and the two other justices to find this is a "rare case" where such evidence might raise a reasonable doubt.

[66] As a result, all essential elements of the charge before the court have been proven to the degree required and there will be a finding of guilt and a conviction registered.

Released: April 11, 2012

Signed: "Justice G.F. Hearn"