Court File and Parties

Court File No.: Central East - Newmarket 12-03895 Date: 2013-10-21 Ontario Court of Justice

Between: Her Majesty the Queen — and — Peter Reid

Before: Justice P.N. Bourque

Judgment

Released on October 21, 2013

Counsel:

• J. Lee for the Crown
• C. Still for the accused Peter Reid

BOURQUE J.:

Crown Evidence

Police Constable Robyn Normore

[1] Police Constable Robyn Normore is a York Regional Police constable with 4 years experience. She was engaged in blocking a road to traffic in the early morning hours of April 14, 2012. A vehicle driven by the defendant approached her parked vehicle. Their interaction at the roadside has led to a charge of driving with excess alcohol.

[2] She stated that she spoke to the defendant while he was seated alone in his car. He asked twice if he could proceed but the officer told him the road was blocked. The following is the timeline of the further actions of the officer:

Timeline

Time	Event
22:00	Saw the defendant's car approach. She goes up to car and engages defendant in conversation. Smells odour of alcohol coming from mouth. Defendant says he has been drinking "scotch and others".
22:07	Officer forms a reasonable suspicion that defendant has been drinking and makes the roadside demand. Officer gets the device from her cruiser (she has checked it at the start of her shift and it was calibrated on April 1, 2012) and gives the defendant instruction. The defendant provides a sample and registers a fail.
22:11	Officer forms grounds that defendant has more than 80 milligrams of alcohol in 100 millilitres of his blood and arrests him for over 80. Nearby male officer Duffield searches the defendant and officer places cuffs on defendant and puts him in back of her cruiser.
22:26	Read the rights to counsel. The defendant said he understood and wanted duty counsel.
22:27	Cautioned the defendant and he said he understood, did not want to say anything in answer to the charge.
22:30	Made the breath demand. Asked if he understood and he said "yes". Retrieved the defendant's keys from his vehicle and spoke to Officer Duffield about the tow for the defendant's vehicle.
22:41	Began transport to 4 District.
22:52	Arrival at 4 District.
22:56	Attended before Sergeant Adams for booking, obtained defendant property and placed in bag and lodged.
23:06	Placed defendant in a cell.
23:14	Placed a call to duty counsel.
23:35	Duty counsel returned the call. Defendant brought into phone room to speak with duty counsel.
23:42	Defendant finished call and returned to the cells. There was a prior ongoing breath test procedure and defendant had to wait until that was finished.
00:17	Turned defendant over to the breath technician.

[3] In cross-examination, the officer stated that she probably asked the defendant when his last drink was but did not put it in her notes. She does not have an independent recollection of asking him. She did not describe the smell of alcohol as "strong", just that she could smell it outside the window of the driver's side.

[4] She was aware of the mouth alcohol issue and the fact that readings within 15 minutes of the last drink may not be accurate. She agreed with defence counsel's assertion that a drive from St. John Side road and Yonge Street to St. John Side road and Kennedy road could be done in 5 to 7 minutes.

Peter Tsuchiya

[5] ...is a qualified breath technician. He was on general patrol and was summoned to 1 District to do a breath test at 23:11 on a subject who was not the defendant. With regard to this defendant, his actions were as follows:

Timeline

Time	Event
00:01	Finished previous subject and began to set up for the defendant. Prepared instrument, self and automatic checks, entered information. Came to conclusion that instrument in proper working order for the first sample.
00:05	Spoke to Normore and read her grounds which she had written onto the Alcohol Influence Report.
00:14	Data for this defendant entered into the device.
00:17	Defendant brought to technician. Confirmed that he spoke to a lawyer and that he was satisfied with lawyer. Defendant said he did not have another language.
00:18	Breath technician demand. Explained the procedure, produced fresh mouthpiece and had defendant blow to check for obstructions and visually check for obstructions.
00:23	Sample directly into instrument and suitable reading of 115 milligrams of alcohol in 100 millilitres of blood. The officer asked the defendant questions from the Alcohol Influence Report but the defendant declined to answer upon the advice of his counsel.
00:29	Defendant returned to holding cells.
00:47	Second sample of breath taken with readings of 106 milligrams of alcohol in 100 millilitres of blood.
00:53	Defendant returned to cells.

[6] Filed as Exhibit 1 was the printout from the breath machine, the results of the calibration checks, and self tests done by the officer upon the Intoxilyzer 8000C.

Toxicologist Evidence

[7] The Crown sought to file the report of a toxicologist as the first breath test was taken more than two hours after the last driver (10:00 p.m. to 12:23 a.m.). I ruled that pursuant to section 657.3(2), that the Crown would have to produce the toxicologist as the defendant wished to cross-examine the expert on the issue of "bolus drinking" and specifically, what constitutes a "large quantity" of alcohol.

Daryl Mayers, Ph.D.

[8] ...was certified as an expert in toxicology. Filed as Exhibit 2 is a report prepared at the request of the Crown. It was his evidence that the device was operating properly and that the results obtained by the breath technician (115 milligrams of alcohol at 00:23 and 106 milligrams of alcohol at 00:47) were accurate. By his calculations, he estimated that the range of breath readings of the defendant at 10:05, the time of last driving, were 106 milligrams to 150 milligrams of alcohol in 100 millilitres of blood. His report and his evidence in court listed 4 factors which form the foundation for this opinion.

[9] One of the factors is the absence of the consumption of large amounts of alcohol within approximately 15 minutes of 10:05. He admitted that a consumption of 1 to 2 ounces of a 38 per cent proof liqueur could, depending upon the size of the person, constitute a large amount of alcohol. He also admitted that the consumption of that amount of alcohol would certainly change his opinion as to the blood alcohol level of the defendant at 10:05.

Defence Evidence

Peter Reid

[10] ...testified in his own defence. He stated that he drives for a living. He stated that on the evening of April 14, 2012, he attended at a Bill Meek's house to have dinner and watch television. He stated that while there, he had a glass of scotch when he first arrived. He also stated that they had dinner together and he had a glass of wine during dinner. After dinner, they had desert and he had several cups of coffee. He stated that they watched a movie on television. He stated that just before 10:00 p.m., he felt he had to go home to let his dog out as the dog was old and ill and there was no one else home that evening to let him out.

[11] He stated that his friend had already poured him a glass of Sambuca (a liqueur with an alcohol concentration of 38 per cent; the defendant got a similar bottle and checked the concentration on the bottle), but he had not drunk it yet. He stated that as he got up, he downed the Sambuca and he thought it was between one and two ounces. He then got into his car and he saw the time on the clock of his car as being 10:00 o'clock. He then drove out to St. John's Side Road and went east toward McCowan Road. He was stopped at Yonge Street and Kennedy Road by officer Normore. With regard to the evidence of officer Normore and officer Tsuchiya, he was in general agreement.

[12] He was cross-examined thoroughly by the Crown attorney about his drinking habits (which he says were some drinks 2 or 3 times a week, with not large amounts), and stated that he was 6' 2" tall and weighed 170 to 175 pounds.

[13] The Crown put maps to the defendant (Exhibits 3"A", "B" and 3"C") which show that the distance from the Meek residence to the intersection of Kennedy Road and St. John's Side Road was approximately 10 kilometres. Taking into account various average speeds (from 50 to 70 kilometres per hour), the time taken to go between these two points would have been from 12 to 8 and-a-half minutes. The defendant had originally stated in his evidence that he believed that the total time taken was some 5 minutes and he was probably going between 50 and 60 kilometres per hour. He also stated that there was only one light on his route of travel.

William Meek

[14] ...is the friend of the defendant and for the most part, confirms the events in his home on the evening of April 14, 2012. He describes the drinking in largely the same fashion. Of most importance, he describes the defendant wanting to leave suddenly just before 10:00 p.m. to take care of his dog, drinking the 1-1/2 ounces of Sambuca just as he was leaving, and then leaving quickly. He cannot, of course, give any assistance to the defendant in terms of how long he was driving before being stopped by the police.

Bolus Drinking

[15] By the decision in R. v. Dineley, the court approved Brewer J.'s decision in R. v. Mariano, wherein she held that notwithstanding the provisions of Bill C-2, and there is no challenge made to the accuracy of the results of the accused's breath tests, evidence can be introduced to give rise to the possibility that something, apart from normal biological processes, happened between the time of the alleged offence and the time of the breath tests that could have affected the accused's blood alcohol concentration, for example, an accused person can still rebut the presumption of identity by leading evidence of bolus drinking or post-offence drinking.

[16] With regard to the sufficiency of such evidence, I would think that the defendant need only raise such evidence as may lead the trier of fact to have a reasonable doubt about whether the defendant, at the time of last driving, had a blood-alcohol level which exceeded 80 milligrams of alcohol in 100 millilitres of blood in the particular circumstances of this case.

[17] In our case, the Crown cannot rely upon a certificate (as the breath tests were taken more than two hours after the last driving) and thus cannot rely upon the presumption of identity. The Crown seeks proof of the blood-alcohol concentration of the defendant at the time of last driving by the expert testimony and report. Both are subject to the limitation in the report that: "No consumption of large quantities of alcoholic beverages within 15 minutes prior to the incident".

[18] In R. v. Paszczenko, the Court of Appeal held that in cases where the presumption of identity cannot be relied upon:

...there is 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.

Has the Defendant Raised a Reasonable Doubt About the Issue of Bolus Drinking?

[19] This case did not proceed using the presumption of identity contained in section 258(1)(c) of the Criminal Code. The breath results were not taken within 2 hours of the time of the last driving. The Crown instead used the expert opinion of a toxicologist in his report (Exhibit 3) and his viva voce evidence. As stated in R. v. Grosse:

It would not be appropriate for the courts to broaden the scope of the statutory presumption when the carefully created conditions in s. 258 cannot be me. Where the Crown cannot rely upon the presumption in s. 258(1)(c), it must prove its case in the ordinary way.

[20] The conclusions of the report (that the defendant's minimum blood-alcohol level at 10:05 p.m. was 106 milligrams of alcohol in 100 millilitres of blood) are specifically "dependant upon the following additional factor(s): ...No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident."

[21] I believe that there is a long line of cases, from Grosse through Paszczenko, that stand for the proposition that "before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist....The issue here is not whether the Crown must prove the assumptions, but how it is required to do so." The issue of non-bolus drinking has been described as "foundation facts" that must be proven in evidence as opposed to information obtained by the toxicologist as part of their expertise (elimination rates and plateau assumptions fall into this category) which do not need to be proven in each case.

[22] The court has traditionally concluded 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. "No bolus drinking is therefore largely a matter of common knowledge and common sense about how people behave: see Paszczenko, at para 29.

[23] There is therefore a practical evidentiary burden upon 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: see Paszczenko, at para 32.

[24] I believe therefore that the Crown has the burden of proving beyond a reasonable doubt that in this case, "there has been no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident".

Analysis of the Evidence

[25] Certainly the defendant must have been incorrect about the exact time it took him to get to when the police stopped him. However, even if I look at the worst scenario (a continuous 50 kilometres an hour), he would have had 3 minutes to spare, and if the middle speed (60 kilometres an hour) he would have had 5 minutes to spare.

[26] While this also impinges on his credibility somewhat, the main part of his evidence that he drank 1 to 2 ounces of 38 per cent proof alcohol just as he was leaving Mr. Meek's home is confirmed by Meek. Even if he is wrong, and the drive was more than 5 minutes, he would still, using the least favourable speed, have been able to make it to the location where he was stopped just within 15 minutes. It is more likely that he was indeed traveling faster and there had more time.

[27] Other than the issue of the time for the travel, neither the defendant nor Mr. Meek were seriously shaken in any other part of their cross-examination. Even if I cannot accept all of their evidence, the question remains whether I am left in a reasonable doubt by their evidence. I believe that that for the following reasons I am left in doubt on this issue:

(a) The defendant at no time showed any signs of impairment and especially not at the roadside at 10:05 p.m.;

(b) The expert tendered by the Crown stated that 2 ounces of 38 per cent proof alcohol drunk within 15 minutes could be a "large quantity of alcoholic beverage based on the weight of the individual";

(c) I accept that the defendant drank 1 to 2 ounces of 38 per cent proof liqueur within approximately 15 minutes prior to his last occupation of the driver's seat of his automobile;

(d) I accept that the amount consumed by the defendant would have the effect of changing the results obtained in the experts report.

Conclusion

[28] Having accepted the defendant's evidence, I find that the Crown has not proven the pre-condition in the expert's evidence (that there has been no bolus drinking) and therefore, this issue leaves me with a reasonable doubt as to whether the defendant, on April 14, 2012, at 10:05 p.m. was operating a motor vehicle with a blood-alcohol reading in excess of 80 milligrams of alcohol in 100 millilitres of blood, and I acquit the defendant of the offence as charged.

Signed: "Justice P.N. Bourque"

Released: October 21, 2013