Court File and Parties

Court File No.: 12-0384

County of Renfrew

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mark Gallivan

Before: Justice Robert G. Selkirk

Heard: June 3rd, 2013

Reasons for Judgment Released: June 20th, 2013

Counsel:

• John Pepper, for the Crown
• James Foord, for the accused Mark Gallivan

Reasons for Judgment

SELKIRK, J.:

[1] The accused is charged with Impaired and Over 80 arising out of an incident on March 7th, 2012 in the Town of Arnprior, Ontario.

[2] The issue in the Impaired is whether the Crown has proven the accused's ability to drive was impaired beyond a reasonable doubt. The issue in the Over 80 is whether the Crown has proven beyond a reasonable doubt that there was no large quantity of alcohol consumed within fifteen minutes of being stopped. This is necessary because the tests were taken outside of the two hour limit and a Centre of Forensic Science read-back was required because the Crown does not have the benefit of the presumption in s.258 of the Criminal Code. That there was no bolus drinking is a pre-condition to the validity of the toxicologist's finding that the blood alcohol concentration at the time of driving was over 80.

Facts

[3] Constable Fitzgerald testified that at 22:48 hour he heard squealing tires and the roar of an engine approaching his location. It sounded like it was coming from the parking lot of a bar. What turned out to be the accused in his truck was then observed to turn onto Daniel Street and accelerate aggressively. Constable Fitzgerald followed it. He paced it at a speed of 85 kilometres per hour as it drove towards the Arnprior downtown. He had all of his emergency lights flashing but the vehicle did not stop. There was another vehicle in front of the accused and it pulled over which caused the accused to pull around it. He kept going until Constable Fitzgerald pulled up beside the accused and then ahead of the accused and started to slowly angle the accused off towards the curb. Only then did the accused stop his vehicle. This was at 22:50. He said the location of the stop was north of the Liquor Control Board of Ontario (LCBO) where Daniel Street starts to incline up a hill. It was also past where William Street intersects with Daniel Street because he saw a second officer turned onto Daniel Street from William Street and that was south of his location. The significance of these details will become apparent.

[4] When Constable Fitzgerald approached the accused he noticed a strong odour of alcohol on the accused's breath. The accused was asked to step out so Constable Fitzgerald could confirm the odour was from the accused's breath which he did. Constable Fitzgerald noted the accused's eyes were red and bloodshot. He also noted that when he exited the vehicle, the truck started to roll back. Constable Fitzgerald yelled at the accused to put the brake on which the accused did.

[5] Constable Fitzgerald indicated that there was nothing out of the ordinary about the accused's speech or his ability to walk.

[6] At 22:57 Constable Fitzgerald made an Approved Screening Device demand. On his sixth attempt the accused blew a Fail and was arrested for Over 80 and Impaired.

[7] Constable Fitzgerald was advised that the closest breath technician was at the Kanata OPP detachment. They arrived there at 23:45 hour. The accused was turned over to the breath technician at 00:52 hour.

[8] Constable Bell, a qualified breath technician, testified that the accused's first test was at 01:08 and the results were 108 mgs. of alcohol in 100 ml of blood and that the second test was at 01:30 and resulted in blood alcohol concentration of .103. Constable Bell testified that the accused's ability to walk and his balance were fine. He said his speech was also fine and perhaps a slight slur on his 'S's.

[9] Both officers, based on their observations, as well as their respective breath tests, offered the opinion that the accused's ability to drive was impaired by alcohol.

[10] As the tests were taken outside of the two hours permitted in order for the Crown to have the benefit of the presumption in s.258 an expert opinion was sought from the Centre of Forensic Science. The report indicated that at the time of the stop the blood alcohol concentration would have been between 100 and 150 mgs. of alcohol per 100 ml. of blood. This finding was based on the usual four pre-conditions of elimination rate between 10 mgs. and 20 mgs. per hour, two hour plateau, no alcohol after being stopped and no large consumption of alcohol within fifteen minutes of being stopped. The last pre-condition is the only one in issue.

Defence Evidence

[11] The accused called one witness, Mira Appleton, who testified as follows. Ms. Appleton is a friend of the accused. She was in the front passenger seat of his truck. Two other friends were in the back seat. She indicated that she and her girlfriend, Sherry, went to the Prior Sports Bar that evening at approximately 6:30 p.m. She met the accused and his friend there at 6:45 p.m. They stood at the bar and consumed beer and wings. At 10:30 they were leaving, they had already paid their bill when the bartender, without being asked and without being paid, gave them each a shot of tequila. She did not want her shot so the accused drank it as well. They then immediately left, got into the accused's truck and drove off. She said the accused was not speeding and in cross-examination said he was certainly not doing almost twice the speed limit. She said she was turned around and talking to her friend, Sherry, who was in the back seat when she saw the emergency lights flashing behind them but she did not know if it was the police, an ambulance or a fire truck. She said she did not see the accused swerve around a vehicle because she was looking to the rear. She did see the cruiser pull-up beside their vehicle and that there was some communication through the open windows between the two drivers. She said the accused pulled over within "one second" of being told to do so in a location where the road was flat and which was still south of the LCBO which was further up the road. She did not notice the truck roll back or the accused jump back in to set the brake. It was her opinion the truck would not roll back because the road was flat at that point.

[12] After the accused was arrested she said she walked home.

[13] She indicated that the maximum time between the accused drinking the shots and being stopped was two minutes.

[14] In cross-examination she was asked how she knew it was tequila if she did not have any. She first said the bartender said it was tequila. Then she said it was her friend who said it was tequila. She then said she knew because the bartender poured the shots in front of her and she saw the tequila label on the bottle. When it was pointed out that earlier she had said the bartender "brought them four shots" she said that was the same thing as pouring them in front of her. She did not know who ordered them or paid for them because no one in her group did.

[15] She said the truck had tinted windows. She repeated that the officer was telling them to pull over. I took that to mean through open windows because of the tint.

[16] She said she only knew it was the police when it was right behind them although she agreed that Daniel Street is well-lit at night being the main road from the Trans Canada to downtown.

Credibility Assessment of Defence Witness

[17] A trier of fact can believe some, all, or none of a witness's evidence. I believe Ms. Appleton that she and the accused and two other friends were at the bar from approximately 6:30 to 10:45. I believe her evidence that they drove off from the bar and within two minutes were stopped by the police. Beyond that I believe very little else of her evidence and I specifically reject as a fabrication the story about four shots of tequila mysteriously arriving just as they were about to leave the bar.

[18] From the look on her face one could see her make up her evidence as she went along on how she knew it was tequila. First it was the bartender, who said it was tequila when she was told that is hearsay, she then said it was her friend who said it, but when that was also identified as hearsay she then said she knew because the bartender poured the shots in front of her and she saw the label on the bottle. This of course is inconsistent with her evidence that the bartender brought them four shots. I do not accept her explanation that "brought us four shots" and "poured four shots in front of me" are the same thing at all. "Brought us four shots" can only mean four shots already poured.

[19] If the shots were being poured in front of her and she did not want one, surely she would have said, "None for me". She did not do this.

[20] Of course this skips past the point that she did not know who ordered the shots or who, if anyone, paid for the shots. This all occurring after they had paid their bill and were leaving. This is far too unlikely to have any credibility. In the real world free shots of tequila do not appear for no apparent reason from no apparent person.

[21] I found her to lack credibility and reliability for a number of other reasons. For example it is highly unlikely that Constable Fitzgerald was conversing with the accused through open windows while speeding down a main street at 85 km per hour while trying to edge the accused's vehicle off to the side. First, no one drives with their windows open at 11:00 p.m. in March in the Ottawa Valley. Second, no one tries to talk with a driver of another car while performing a highly dynamic stop. Constable Fitzgerald thought this suggestion was preposterous given the circumstances and I agree.

[22] I also reject her evidence that the accused was not speeding and certainly was not doing almost twice the speed limit. I accept Constable Fitzgerald's evidence on this point.

[23] I find her not to be reliable as to where the stop took place. Constable Fitzgerald took detailed notes shortly thereafter. Although he did not note the cross street he knew it was north of the LCBO and north of William Street because he saw the second cruiser come off of William Street and it was behind him. This was significant because at that point there is a slight incline on Daniel Street which would explain why when the accused got out without setting the brake the vehicle started to roll back. I find it did roll back slightly as described by Constable Fitzgerald which it would not have if stopped where Ms. Appleton said on flat level ground. Not putting the brake on and the vehicle rolling backwards could be seen as a driving error consistent with being impaired. I believe Ms. Appleton did not want to concede this point and therefore the street had to be level. I reject her evidence on that point as well.

[24] I also reject that she or anyone else did not know it was the police until it was right behind or beside them. Daniel Street is well lit and straight. The differences between a cruiser, an ambulance and a fire truck are so significant that no one could reasonably confuse them. I believe she said this to explain why the accused did not pull over until forced to do so. I do not accept her evidence that the accused pulled over within one second of being signalled to do so. I accept Constable Fitzgerald's evidence on that point as well.

Legal Analysis: Over 80 Charge

[25] I will address the Over 80 count first. The issue raised is authoritatively addressed by the Ontario Court of Appeal in Paszczenko, 2010 ONCA 615.

[26] At paragraph 21 the Court writes:

There can be no dispute that the onus is on the Crown to prove the facts underlying the expert's report, including the assumptions upon which the expert relies. As Sopinka J. noted in R. v. Lavallee, [1990] 1 S.C.R. 852, at p. 898: "before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist." See also, R. v. Grosse, (1996), 29 O.R. (3d) 785 at p. 790 (C.A.), leave to appeal refused, [1996] S.C.C.A. No. 465. As noted above, however, the issue here is not whether the Crown must prove the assumptions, but how it is required to do so.

[27] Under the heading, The "No Bolus Drinking" Assumption, at paragraphs 27 to 29, the Court writes:

"Bolus drinking" is generally meant to describe the consumption of large quantities of alcohol immediately or shortly before driving: see Grosse, at p. 788; R. v. Hall, (2007), 2007 ONCA 8, 83 O.R. (3d) 641 (C.A.), at para. 14. See also Phillips at pp. 158-162, for a description of the "relatively rare" phenomenon, although not by the "no bolus drinking" name.

In establishing that an accused has not engaged in bolus drinking, the Crown is in the unenviable position of having to prove a negative. But how does it meet that onus in circumstances where – as is likely in many cases – it has no statement or evidence from the accused as to his or her drinking pattern at the relevant time and no other witnesses or evidence to shed any light on that issue? That is the dilemma posed, principally, by the Lima appeal.

At one level, the answer is straightforward: the Crown need do very little. The toxicologist's report is premised – amongst other things – on there being no bolus drinking. In the absence of something on the record to suggest the contrary, on what basis could a trier of fact conclude there was bolus drinking? This Court has answered the question posed by concluding that triers of fact may resort to a common sense inference in such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving: see Grosse, Hall, and R. v. Bulman, 2007 ONCA 169. As noted above, bolus drinking has been said to be a "relatively rare" phenomenon: Phillips, at pp. 158-162. "No bolus drinking" is therefore largely a matter of common knowledge and common sense about how people behave.

[28] At paragraph 32 the Court makes this point:

I would frame the rationale for this approach as the imposition of a practical evidentiary burden on the 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.

[29] One can summarize the above points as follows:

1. The Crown has the burden of negating bolus drinking on a standard of proof beyond a reasonable doubt.
2. There is no onus on the accused to establish bolus drinking.
3. There is a practical evidentiary burden to point to some evidence either in the Crown's evidence or in the evidence called by the defence that puts the issue "in play".

[30] The Court, at paragraph 35, further discusses the difference between a persuasive burden and an evidentiary burden. It writes:

Chief Justice Dickson distinguished between a persuasive burden (which, constitutionally, cannot be shifted to the accused) and an evidentiary burden (which in some circumstances may be) in R. v. Schwartz, [1988] 2 S.C.R. 443. He pointed out that the former requires proof of the existence of a certain set of facts whereas the latter does not require the party with the evidential burden to convince the trier of anything. At p. 466, he said:

Judges and academics have used a variety of terms to try to capture the distinction between the two types of burdens. … I prefer to use the terms "persuasive burden" to refer to the requirement of proving a case or disproving defences, and "evidential burden" to mean the requirement of putting an issue into play by reference to evidence before the court. The party who has the persuasive burden is required to persuade the trier of fact, to convince the trier of fact that a certain set of facts existed. Failure to persuade means that the party loses. The party with an evidential burden is not required to convince the trier of fact of anything, only to point out evidence which suggests that certain facts existed. The phrase "onus of proof" should be restricted to the persuasive burden, since an issue can be put into play without being proven. [Emphasis added.]

[31] R. v. Bulman, 2007 ONCA 169, Ontario Court of Appeal at paragraph 13 is cited for the proposition that, "A reasonable inference is that normal people do not consume large quantities of alcohol shortly before, or while driving."

[32] In R. v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641, Ontario Court of Appeal, the evidence of bolus drinking came from a defence witness, a Mr. Portsmith, who testified that the accused drank half a glass of beer just before they left the restaurant. The trial judge found Mr. Portsmith's credibility to be dubious and that his evidence was unreliable. At paragraph 20, the Court writes:

It is abundantly clear when one reads the reasons of the trial judge in their entirety that she places no weight whatsoever on the testimony of Mr. Portsmith. She found Mr. Portsmith's evidence not only unreliable, but she disbelieved him and found him to be a witness who lied and who was not credible. There can be no doubt that the trial judge rejected his evidence on this issue entirely. Having done so, there was no evidence whatsoever of bolus drinking, nor was there any other evidence to undermine the common-sense inference of drinking at a normal pace, on which the trial judge was therefore entitled to rely. (my emphasis).

[33] The correctness of the above cases is confirmed in the Supreme Court of Canada decision of R. v. St-Onge Lamoureux, 2012 SCC 57, at paragraph 174.

[34] Like the trial judge in Hall, I find the defence witness in this case, Ms. Appleton, to be of dubious credibility and unreliable. There is therefore, having rejected her evidence and finding that it does not raise a reasonable doubt, no evidence of bolus drinking as in the two shots of tequila consumed within two minutes of the stop.

[35] There is, however, the evidence that I did accept and that is that the accused left a bar within two minutes of being stopped. This is consistent with Constable Fitzgerald's evidence. Is that evidence which puts the issue "in play"? I find the answer to that question is found in a decision of Wake J., R. v. Calabretta, 2008 ONCJ 27, where after citing Grosse, Hall and Bulman he writes, at paragraph 35:

In the case before me, other than the fact that the defendant was observed driving out of the parking lot of a licenced premises, there is no other evidence to suggest that he had consumed large quantities of alcohol immediately before getting into his motor vehicle and driving away. I think that it is a reasonable inference to make that the defendant was a normal person who would not have engaged in such a practice.

[36] I draw the same inference in the case at bar.

[37] I find the Crown has established beyond a reasonable doubt that there was no bolus drinking. The report and the opinion as to the blood alcohol concentration is admissible and un-contradicted. The accused will be found guilty of the Over 80 count.

Legal Analysis: Impaired Charge

[38] On the count of Impaired driving, I am also satisfied that the accused is guilty. This is also based on the un-contradicted opinion evidence of the toxicologist that, "an individual would be impaired in their ability to operate a motor vehicle at a blood alcohol concentration within the prospected range", which in this case was 100 to 150 mgs. of alcohol in 100 ml. of blood.

[39] The lack of evidence as to slurred speech or difficulty with his balance or ability to walk is also answered by the toxicologist who writes, "the impairing effect of alcohol is marked in driving situations that are unpredictable and that require a rapid and appropriate response. Impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance."

[40] Any degree of impairment of the ability to drive is sufficient for conviction. (See Stellato, SCC).

[41] The Crown also points to the speeding; the truck rolling back; the failure to pull-over; the strong odour of alcohol and the bloodshot eyes as evidence consistent with the toxicologist's opinion that Mr. Gallivan's ability to drive was impaired by alcohol.

Disposition

[42] I will convict on the Over 80 and judicially stay the Impaired.

Released: June 20th, 2013

The Honourable Mr. Justice Robert G. Selkirk