Court File and Parties

Information No.: S11-0535

Ontario Court of Justice (at St. Catharines, Ontario)

Between:

Her Majesty the Queen

• and -

Sarah Jessica Thompson

Counsel:

• Mr. B. Hill for the Crown
• Mr. B. Starkman for Sarah Jessica Thompson

Reasons for Judgment

NADEL, J.:

Introduction

[1] On February 5, 2011, Ms. Thompson was charged with impaired driving and being over 80. The evidence in support of the allegations comes from the arresting officer (Scott Cooper), a transporting officer (Robert Conroy), the qualified technician (Michael Malachowsky) and a C.F.S. forensic toxicologist, (Rachelle Wallage).

[2] Ms. Wallage's opinion was required because Thompson was last in care and control at 2:33 a.m. but her first test was not obtained until 5:05 a.m. So, the Crown lost the benefit of the presumption of identity provided for by s. 258(1)(c).

The Impaired Driving Count

[3] When Officer Scott Cooper saw that Ms. Thompson was speeding he checked her speed using radar. He clocked her travelling at 70 kilometres per hour in a 50 kilometre zone, as she travelled through St. Catharines, Ontario. He followed her and saw that she was driving "erratically". She drove as slowly as 10 kilometres below the posted speed and as fast as 20 kilometres over the posted speed as she moved around the vehicles that she encountered.

[4] Cooper followed her and saw her fail to come to a proper stop at an intersection controlled by a traffic light. Ms. Thompson did not stop until she was in the middle of the intersection, where she remained until the light turned green and she proceeded on. Cooper continued to follow her until he elected to stop her by activating his cruiser's warning lights. Ms. Thompson did not stop in response to that signal. Cooper then activated his siren but Ms. Thompson still did not stop. Instead, she continued to drive onwards. Eventually she slowed down to ten or 20 kilometres per hour and continued at that speed for a considerable distance before finally stopping. Cooper estimated that Ms. Thompson drove about 800 metres before she finally stopped in response to his lights and siren.

[5] When Ms. Thompson did stop, she stopped on an elevated overpass above railway tracks. Cooper pulled up beside her and he directed her to pull ahead and park at a parking lot a short distance ahead of the overpass.

[6] Cooper detected the smell of alcohol coming from her breath and she seemed very confused. In addition she was very emotional and alternated between laughing and crying and smiling and frowning. Officer Cooper described Ms. Thompson as being uncoordinated. He testified that when he demanded her documentation she was "fumbling" with it.

[7] When Cooper arrested Ms. Thompson she was still in her vehicle and she initially refused his direction to leave her vehicle. Ultimately, after "considerable communication" he had to touch her arm and tell her to get out of her car, which she then did. When she got out, she displayed a noticeable stagger and was unsteady.

[8] Ms. Thompson was transported to the station by another officer who was summoned for that purpose because Cooper's vehicle was not equipped with a security cage. That officer, Conroy, testified that Ms. Thompson displayed unsteadiness on her feet while being booked but he did not make a note of that observation and treated his involvement with Ms. Thompson as irrelevant to the investigation. I accord him the same consideration.

[9] Officer Michael Malachowsky, the qualified technician, did not receive custody of the defendant until about 5:00 a.m. as he tested two other detainees before dealing with her. When he dealt with her he observed that she had droopy eyes and was slow and lethargic. She emitted an odour of an alcoholic beverage from her breath. He characterized her speech as "fair" and did not detect any slurring, nor did he detect any unsteadiness when she entered the breath room by walking a few steps and sitting in the chair provided.

[10] Malachowsky's opinion was that Ms. Thompson's ability to operate a motor vehicle was impaired by her consumption of alcohol. He arrived at that opinion based upon the totality of "everything" including her physical state as observed by him together with the results of the breath samples that he obtained.

[11] The final portion of the Crown's case on the impaired driving count is the opinion of Ms. Wallage found in her s. 657.3 affidavit, which became Exhibit 3 in this trial. It was her opinion, as an expert toxicologist, that, among other things:

The operation of a motor vehicle requires the integrity of a variety of sensory, motor, and intellectual faculties including divided attention, choice reaction time, judgment of speed and distance, risk assessment, vigilance, and vision. The degree of impairment produced by alcohol is dependent upon BAC. Under controlled experimental conditions, impairment of divided attention tasks has been reported at BACs as low as 15 mg/100mL. Nevertheless, based on a critical review of the relevant scientific literature (laboratory, closed-course driving, and crash risk assessment) it is my opinion that impairment with respect to driving becomes significant at BAC of 50 mg/100mL and increases from then onward.

The Defence Submissions on the Impaired Driving Count

[12] Mr. Starkman submits that the charge of driving while her ability to do so was impaired by alcohol ought to be dismissed. In the defence submission, the evidence falls short of proof beyond a reasonable doubt. In making that submission Mr. Starkman urges that many of the individual pieces of evidence can be innocently explained and that other portions of the evidence are inconsistent with proof of impairment. As examples, he points to the fact that the arresting officer conceded that people respond to the police in a variety of ways; i.e., some are embarrassed and laugh so Ms. Thompson's labile emotional state should not be used to conclude that her ability to drive was impaired by her consumption of alcohol. Further, not all of Ms. Thompson's driving was exceptional. She made turns properly and she did not cross over the lane markings except when passing other vehicles. These aspects of proper driving are inconsistent with proof of "impaired driving". Additionally, Officer Cooper's observations of what documents Ms. Thompson fetched and what she discarded were not precise, which substantially weakens his opinion that she fumbled her documents.

The Law

[13] In R. v. Stellato, the Supreme Court of Canada adopted the reasons given by Labrosse J.A. reported at , 12 O.R. (3d) 90 where he said: "If the evidence of impairment established any degree of impairment ranging from slight to great, the offence has been made out." As noted by the court in R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), courts "…must not fail to recognize the fine but crucial distinction between 'slight impairment' generally, and 'slight impairment of one's ability to operate a motor vehicle." As Durno J. observed in R. v. Raven, [1999] O.J. No. 48 (Gen. Div.) at [47] and [50], one misinterprets Stellato if one reads it as requiring only proof of a slight degree of impairment by alcohol as opposed to a slight degree of impairment of one's ability to operate a motor vehicle as a result of the consumption of alcohol. As the court in Andrews put it, "[t]he question is not whether the individual's functional ability is impaired to any degree. The question is whether the person's ability to drive is impaired to any degree by alcohol …"

The Impaired Driving Count Judgment

[14] While I appreciate the force of the defence submissions, I accept the evidence of Officer Cooper and I am satisfied to the exclusion of any reasonable doubt that on February 5, 2011, Ms. Thompson operated her motor vehicle while her ability to do so was impaired by her consumption of alcohol. I accept that Ms. Thompson was able to perform some driving manoeuvres without apparent difficulty. However, on the totality of the evidence, (including her speeding around other traffic, her failure to appreciate and heed Cooper's lights and siren, her failure to properly stop for a red light, her failure to bring her vehicle to a prompt stop at the side of the road, her choice to stop at the top of an overpass, her slurred speech, her fumbling movements, her stagger and her changeable emotions) I am satisfied that the Crown has met its burden and I find Ms. Thompson guilty on count 1.

[15] I have arrived at my conclusion based solely upon the evidence of Officer Cooper. Notwithstanding, I note parenthetically that it was Officer Malachowsky's opinion, based on "everything" that Ms. Thompson's ability to drive was impaired by her consumption of alcohol, when he dealt with her at about 5:00 a.m. Further, even if Ms. Thompson's BAC was at the legal limit when she was last in care and control, in Ms. Wallage's opinion, Ms. Thompson's ability to operate a motor vehicle would still be significantly impaired by alcohol with such a BAC.

The Over 80 Count

[16] In addition to her s. 657.3 affidavit, Ms. Wallage was presented for cross-examination by Mr. Starkman. In that cross-examination she confirmed the four assumptions that she relied upon to relate the defendant's BAC readings obtained at 5:05 a.m. and at 5:27 a.m. back to the time of her last care and control. Those four assumptions are:

1. No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the time of the incident.

2. No consumption of alcoholic beverages after the incident and before the breath tests.

3. A rate of elimination of alcohol from the blood ranging from 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour (mg/100 mL/hr).

4. Allowance for a plateau of up to two hours.

[17] The "elimination rate" and the "plateau" assumptions can be relied upon by a forensic toxicologist as matters within their field of expertise. The Crown is not obliged to lead evidence to specifically prove these assumptions. (see R. v. Paszczenko; R. v. Lima, 2010 ONCA 615, [2010] O.J. No. 3974 (C.A.) at [43])

[18] The assumption that the detainee has not consumed alcohol between her last care and control and the testing procedures is a matter that must be proved by evidence. (R. v. Paszczenko; R. v. Lima, supra) The evidence before me is that Ms. Thompson was under the control of the police from 2:33 a.m. onwards until she provided breath samples. The defence does not submit that she consumed any alcohol after being detained by Cooper and before she provided those samples. I find that the assumption relied upon by Ms. Wallage that the defendant did not consume any alcohol after the incident and before the breath tests has been proved to the exclusion of any reasonable doubt.

The Bolus Drinking Assumption

[19] The assumption that a detainee has not consumed a "bolus" (meaning a large quantity of alcohol) immediately or shortly before driving is a matter of fact that must be founded on the evidence before the court can rely upon an expert opinion that retrojects a BAC to an earlier time from readings taken outside the two-hour limit established by s. 258(1)(c).

[20] Ms. Wallage testified that, in theory, Ms. Thompson could have a BAC of 143 and 141 milligrams of alcohol in 100 millilitres of blood at 5:05 a.m. and 5:27 a.m., respectively and yet have had a BAC of 80 at 2:33 a.m., if she weighed 110 pounds and consumed a bolus of two to 2.5 standard drinks within 15 minutes of 2:33 a.m. She defined a standard drink as 12 ounces of 5% beer, or 5 ounces of 12% wine or 1.5 ounces of 40% liquor, (the % being alcohol content by volume).

[21] If Ms. Thompson weighed 100 pounds the bolus that she would need to consume is reduced to 1.75 to 2.25 standard drinks. If Ms. Thompson weighed 90 pounds, the necessary bolus is reduced to 1.5 to 2 standard drinks. Hence, Ms. Thompson's weight is a critical foundational fact for Ms. Wallage's opinions.

[22] The Court of Appeal has stipulated that the Crown needs to do very little to establish that a detainee did not consume a bolus of alcohol. In the absence of something in the record to suggest the contrary, the Crown is entitled to rely upon a common sense inference that people do not normally ingest large amounts of alcohol just prior to, or while, driving. The court can infer that that form of behaviour is "relatively rare". (see R. v. Paszczenko; R. v. Lima, supra at [27] to [31])

[23] Given this common sense inference, a practical evidentiary burden is cast upon an accused, "not to persuade or convince the trier of fact that there was bolus drinking involved, but to point to something in the evidence (either in the Crown's case, or in evidence led by the defence) that at least puts the possibility that the accused had engaged in bolus drinking in play. The imposition of a practical evidentiary burden to come forward with evidence is simply another way of explaining the invitation to draw a common sense inference which puts the accused in essentially the same spot if he or she cannot point to some evidence to overcome either hurdle." (R. v. Paszczenko; R. v. Lima, supra at [32])

[24] Mr. Starkman submits that the defence has met this practical evidentiary burden. He submits that the defendant is an obviously diminutive young woman. While the defendant did not testify, Mr. Starkman submits that the court has seen her and that from doing so I am entitled to arrive at an estimate of her weight as being very roughly in the area of 100 pounds.

[25] A trial judge is certainly entitled, within limits, to assess demeanour during testimony. (R. v. Boyce, [2005] O.J. No. 4313) Additionally, there is nothing that precludes a trier of fact from watching an accused as the trial evidence is adduced and assessing an accused's demeanour during the trial process. More directly, a trial judge can look at the accused and compare the accused to images on a recorded exhibit. (R. v. Nikolovski, [1996] S.C.J. No. 122) Finally, it is not uncommon for fact-finders to compare the relative size of individuals involved in a fight, even in the absence of express evidence of their respective heights and weights.

[26] Accordingly, what Mr. Starkman has asked me to do in a general way, is not uncommon. But, on reflection, I cannot accede to counsel's request that I make precise findings about Ms. Thompson's weight, on February 5, 2011, in the absence of express evidence about her weight on that date and there is none in the evidence before me.

[27] The defence did not concede that any comments made by Ms. Thompson to the qualified technician were voluntary. A voir dire on that issue was commenced by the Crown but before the conclusion of that voir dire the Crown withdrew its application to prove voluntariness. In the result, the digital recording of the breath testing procedures was never substantively entered into evidence at the trial. It remains a lettered exhibit, so that a comment made by the qualified technician that Ms. Thompson was "quite light", is not a substantive part of the trial's evidence.

[28] It strikes me that a bolus of two to 2.5 standard drinks within 15 minutes of driving is contrary to common sense and is likely quite a rare phenomenon. On the other hand, it does not strike me as unusual, albeit quite unwise, for someone to have "one more for the road" (with apologies to Johnny Mercer and Harold Arlen). I cannot and need not determine what my decision would have been had there been evidence that Ms. Thompson weighed 90 pounds on February 5, 2011. That necessary piece of evidence was not called.

[29] Nonetheless, I am concerned that the parties may not have considered the fact that the breath testing recording was not part of the trial proper. As a result, and given my decision on count 1, I elect to conditionally stay count 2, without formally arriving at a verdict on it.

Dated at St. Catharines, this 12th of June 2012.

J.S. Nadel (O.C.J.)