Court File and Parties

Court File No.: Halton Region, Central West 10-3176

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Paul Brown

Before: Justice Alan D. Cooper

Heard on: August 16, 17, December 20, 2011 & April 23, July 31, 2012 & February 6, November 27, 2013

Reasons for Judgment released: April 25, 2014

Counsel:

• Emily L. Pecorella Roda for the Crown
• Douglas R. Lent for the accused Paul Brown

Case Background

The First Driving Incident

[1] On October 1, 2010, Paul Brown was charged in Burlington with impaired driving and the related charge of operating a motor vehicle after having consumed an amount of alcohol in excess of the legal limit.

[2] Mark Harris, a high school teacher, was driving his car on Highway 6 northbound, north of the Queen Elizabeth Highway. He was with his girlfriend Sara Ritchie. At approximately 6:30-6:45pm, Mr. Brown drove up behind them in their lane in a Nissan X-Trail vehicle and Mr. Harris moved over one lane because he thought he would be hit from behind. Brown was driving very fast and was swerving, and almost struck the concrete barrier separating the northbound and southbound lanes. When approaching Highway 5, he looked like he was going to drive into other vehicles which had slowed down for the traffic light, but then veered across three lanes at the last second, crossed a concrete lane separator, and turned right to go east on Highway 5. Ms. Ritchie called police on her cell phone and gave a description of Mr. Brown and his vehicle, and reported his vehicle licence number as ANLB985.

[3] Mr. Harris also turned right to follow the defendant, and saw him drive into a liquor store parking lot, where he appeared to be falling asleep or passing out. Mr. Brown then drove out of the parking lot and went eastbound again on Highway 5. The defendant later pulled into the parking lot of "McLean's American House Restaurant." At this point, the couple was told by the dispatcher to leave the pursuit. Both Mr. Harris and Ms. Ritchie identified the defendant as the driver of the Nissan X-Trail.

The Second Driving Incident

[4] Between 7:15-7:30pm, a second incident occurred, in which Mr. Brown was also involved. Luc Piche, a retired Air Canada employee and his wife were in their pickup truck stopped at a red light in the left of two eastbound lanes on Highway 5 at Guelph Line. He was hit from behind by Leanne Toth, who was driving a Volkswagen car, which had been struck from behind by Mr. Brown's vehicle.

[5] Mr. Piche testified that the defendant got out of his vehicle and came within two feet of him. Mr. Brown was staggering as he walked, and the smell of alcohol was coming from his mouth. Mr. Piche did not think the defendant was sober. Before Air Canada, he had worked as a bartender and doorman for fifteen years. He said Mr. Brown stumbled on the words he was using.

[6] Leanne Toth said the accident occurred at approximately 7:30pm, "or just before." Mr. Brown told her he was sorry but it seemed as if he didn't know what had happened, as if he didn't care. When she spoke to him a second time, he again said he was sorry, but was slurring his words. It was then that Ms. Toth realized he was intoxicated. She could smell alcohol on him and saw him stagger back to his vehicle. She said she called the police and they arrived within two minutes. She was taken to a hospital for her injuries, which consisted of a sprain in the middle of her spine, as well as a whiplash. She had physiotherapy twice a week for six months, and still had back pain when she gave her testimony.

[7] When cross-examined, Ms. Toth agreed that in her statement to the police she said the accident took place at 7:20pm. She also said she used to work at a golf club and had taken the Smart Serve course and had seen intoxicated persons at the club. She had consulted a lawyer and had sued or intended to sue the defendant for causing her injuries.

The Police Investigation

[8] Halton police officer Katie Horseman was in charge of this investigation. She arrived at the accident scene at 7:26pm and first spoke to Mr. Brown, who seemed to be in shock. He said "I hit her. I don't know what happened, but I slammed into her." She then spoke to Ms. Toth, and then to Mr. Piche. When she spoke to the defendant again, he was asked for his identification documents three times. Each time he would open his wallet and then close it, but eventually did produce the necessary documents. He denied drinking alcohol but was stumbling over his words and seemed confused. He was unsteady on his feet and was stumbling as he walked, and one foot tripped over the other. The officer could now smell alcohol on the defendant's breath. Before arresting Mr. Brown at 7:39pm for impaired driving, the officer had received telephone information about a previous traffic complaint to the police concerning a vehicle with the same licence plate number at the defendant's.

[9] Halton Police had no qualified breath technician available, so officer Horseman was directed to take Mr. Brown to the Burlington Ontario Provincial Police station. On the way he said "I'm not really that drunk." They arrived at 8:04pm, and the defendant was lodged in a cell because the breath technician was busy with another person who was to be tested. At 8:45pm, the grounds of arrest were given to the breath technician, officer Charnjit Singh Bhamber, and Mr. Brown was turned over to her at 8:49pm.

[10] During officer Horseman's evidence in chief, the breath room video was played. A Crown witness, Justin Hinman, a Centre of Forensic Sciences toxicologist, sat in court and watched this video. Officer Bhamber, the breath technician, was also in court to watch part of it. After breath samples were obtained, officer Horseman took custody of the defendant and took him to the Burlington police station. At some point, Mr. Brown was taken by other officers to the central lockup facility in Oakville.

[11] In cross-examination, officer Horseman agreed that when first speaking to the defendant, she did not smell alcohol or note other symptoms of impairment. When she went to her cruiser and checked her computer, she learned of an earlier call regarding a possible impaired driver in Waterdown, and the suspect vehicle had the same licence plate number as Mr. Brown's vehicle.

[12] Officer Horseman did not know why the defendant was taken from the Burlington station to the central lockup in Oakville, but said that decision was made by Staff Sergeant Delaney. Mr. Brown said that his wife and daughter were not able to pick him up at the Burlington station, but officer Horseman agreed that she did not ask if anyone else could do so.

[13] Ontario Provincial Police officer Charnjit Singh Bhamber, was the qualified breath technician in this matter. She said there was a delay in testing Mr. Brown due to behavioural difficulties with another person ahead of him. Officer Bhamber prepared the approved instrument for testing, but conceded she needed to conduct a second calibration check because the simulator had not been turned on the first time. At 9:25pm, a sample of the defendant's breath gave a reading of 270 milligrams of alcohol in 100 millilitres of blood. At 9:50pm, a reading of 260 was obtained. The defendant told the officer that he had a "couple" of beers earlier in the day, and nothing to drink after the accident.

[14] In cross-examination, defence counsel suggested there was no second calibration check, because had there been, a printout would have been available. Officer Bhamber could not explain why there was no printout, but insisted that a second calibration test had taken place.

[15] Justin Hinman, the Crown toxicologist, testified that he saw the breath room video being played during the trial, and heard the testimony of officer Bhamber. He described the Intoxilyzer 8000C used in this case as an accurate machine when in proper working order and properly operated. In his opinion, the machine was in proper working order and was operated competently by officer Bhamber. He thought Bhamber may have been in error in thinking the simulator was not on when doing the first calibration check. In his opinion, it had been turned on. In his opinion, the accuracy of the blood alcohol readings would not have been affected even assuming that that the simulator was turned off, and then on again.

[16] In Mr. Hinman's opinion, and assuming the time of driving was between 7pm-7:30pm, the defendant's blood alcohol level would be between 260 and 315 milligrams of alcohol in 100 millilitres of blood.

Legal Issues Raised by the Defence

[17] In addition to requiring to prove guilt beyond a reasonable doubt on both charges, the defence has also raised the following issues:

(i) The voluntariness of all statements made by the defendant is in issue.

(ii) Charter – Sections 7, 8, & 9 – It is alleged that there were no reasonable and probable grounds to arrest Mr. Brown and he was arrested without a warrant.

(iii) Charter – Sections 10(a) & 10(b) – It is contended that the defendant was not given a reasonable opportunity to contact his counsel of choice.

(iv) Charter – Section 9 – The defence raises the issue of "overholding" and argues that Mr. Brown was not released from custody when he should have been. It is alleged that the defendant was arbitrarily detained from the completion of his last breath test at 9:50pm on October 1, 2010, to 9:15am on October 2, 2010.

(v) Charter – Section 7 – This was raised concerning missing audio/visual recordings from the Halton Police central lockup at 20 Division station in Oakville. The defence said it learned of the existence of such recordings only when officer Delaney testified at trial on April 23, 2012.

(vi) The Charter remedies requested are a stay of proceedings under section 24(1) or, in the alternative, an exclusion of all inculpatory evidence under section 24(2).

The Crown Witnesses on the Issues of Overholding and the Missing Audio/Visual Recordings from the 20 Division Station in Oakville

[18] Staff Sergeant Susan Delaney of the Halton Police was the officer in charge of 3 District, which included the 30 Division station in Burlington. At 10:51pm on October 1, 2010, she saw Mr. Brown at the Burlington station when he was brought there by officer Horseman, after providing breath samples at the OPP detachment in Burlington.

[19] The defendant told her "I'm a fire captain in Brampton, if that changes anything." He was told that it did not. Officer Delaney smelled alcohol on his breath, his face was flushed, his speech was not completely clear, and his mobility was a bit unsteady. He was obviously impaired. Officer Delaney was aware that Mr. Brown had blood pressure and heart problems, and suffered from depression. His blood alcohol readings were 270 and 260. Officer Delaney made the decision to send the defendant to central lockup at the 20 Division station in Oakville due to his high level of intoxication and for his own health. If released, he might have a heart attack or attempt to drive a motor vehicle. Officer Delaney specifically asked the defendant if he had someone who could pick him up and he said he did not, and the officer refused to release him unless he had someone to transport him and look after him.

[20] Officer Ryan Snow was the officer in charge of central lockup in Oakville. Special Constables Spark and Payne had picked Mr. Brown up in Burlington, and they arrived in Oakville at 11:51pm on October 1. The defendant had 3 ½ times the legal limit of alcohol in his system and was detained for his own safety. Officer Snow did not want him to operate a motor vehicle or get harmed if he was released in a drunken state. After a while, Mr. Brown seemed to be sleeping peacefully. Officer Snow never asked the defendant if there was someone available to pick him up. In his opinion, it was safer to hold Mr. Brown than to appear as a witness at a Coroner's inquest.

[21] Sergeant Blair Moroso was the supervisor of the central lockup facility in Oakville after officer Snow went off duty. The defendant remained in his custody from 5:30am until 9:15am on October 2. He was not released before this due to his level of intoxication. Even at the time of his release Mr. Brown still had over the legal amount of alcohol in his system. Officer Moroso did not want the defendant to be a danger to the public or incapable of preventing harm to himself.

[22] Inspector Jackie Gordon of the Halton Police gave evidence that after the defence requested a copy of the audio/visual recordings from the central lockup at 20 Division in Oakville, she checked to see if they were available. The recordings were kept for 479 days, and were deleted after that period of time. The defence only requested them after hearing officer Delaney's evidence on April 23, 2012, which was past the 479 day limit. Had they been requested within the 479 day period, they could have been made available.

Defence Evidence

[23] Paul Brown testified only on the section 9 Charter application concerning the overholding issue, and not for the purpose of any other Charter issue or for the trial proper. In October of 2010 he lived in Burlington with Melissa Breakwell, who was away in Ottawa at the time. He was retired from the Brampton fire emergency services after being so employed for 29 years. He has no criminal record or outstanding charges. His sister-in-law Marcia Breakwell was available to pick him up at the Burlington police station, but he never told the police this, and he said he was never asked if there was anyone who could give him a ride home. He agreed that he was intoxicated when in police custody and had drank alcohol after he had taken an anti-depressant. His doctor had warned him not to do this, but he had done this in the past without any problems. His doctor never told him this could affect his driving. He agreed that he was well treated when in police custody.

[24] The last defence witness was Marcia Breakwell, who also testified on the Charter application. She resided in Mississauga with her family and is a nursing professor. She and her husband were available to pick Mr. Brown up at the police station had they been called, which they were not.

Legal Analysis

Onus

[25] The onus is on the defence to establish a breach of the Charter on a balance of probabilities. However, with respect to section 8, if the search was conducted without a warrant, the Crown must prove, on a balance of probabilities, that the search was reasonable: R. v. Collins, [1987] 1 S.C.R. 265. If the search was unreasonable and a breach of section 8, or if there has been a breach of sections 7, 9, or 10, the defence has the burden of establishing that the impugned evidence, if admitted, would bring the administration of justice into disrepute. On the trial proper, the Crown must prove the essential elements of the charges beyond a reasonable doubt.

Whether the Statements of the Defendant were Voluntary

[26] On February 6, 2013, the court ruled that all statements made by Mr. Brown to the police were proven by the Crown, beyond a reasonable doubt, to have been made voluntarily.

Charter Application – Sections 7, 8, and 9 – Reasonable and Probable Grounds

[27] The defence alleges that officer Horseman had no reasonable and probable grounds to arrest Mr. Brown for impaired driving. After the accident he said to her that "I hit her. I don't know what happened, but I slammed into her." The defence contends that since the defendant was compelled by sections 199 and 200 of the Ontario Highway Traffic Act to furnish the officer with information concerning the accident, the statement of the defendant cannot be used at trial for any purpose, including reasonable and probable grounds.

[28] The leading case is R. v. White, [1999] 2 S.C.R. 417, in which the court held that statutorily compelled statements will be protected by use immunity under s. 7 of the Charter only to the extent that the relevant statement may properly be considered compelled under section 61(1) of the British Columbia Motor Vehicle Act, which is similar to section 199(1) of the Ontario Highway Traffic Act.

[29] The test for compulsion is whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given.

[30] The basis of a subjective belief exists because compulsion implies an absence of consent. The requirement that the belief be reasonably held also relates to the meaning of compulsion. The Crown does not bear the onus of establishing that an accident report was not made pursuant to the statutory duty to report. Rather, since the onus lies on the person raising the Charter challenge to establish an infringement of his or her rights, it is the accused who must establish on the balance of probabilities that the statement was compelled.

[31] Mr. Brown did not testify on the trial proper but did testify for the purpose of the Charter application, but only in relation to the section 9 overholding issue, and not in relation to the section 7 compelled statement issue. Therefore, he has not met the onus upon him, and his statement is admissible, and establishes that he was the driver of his vehicle at the time of the accident.

[32] Additionally, officer Horseman spoke to the other motorists Ms. Toth and Mr. Piche, after speaking to the defendant initially, so it is reasonable to assume that Mr. Brown would have been pointed out as the driver of the third vehicle involved in the accident. Mr. Brown was the only person who seemed to be connected to the Nissan X-Trail vehicle with plate number ANLB985.

[33] In addition to being satisfied that the defendant was the operator of this vehicle at the time of the accident, officer Horseman had ample grounds to conclude that the defendant's ability to operate a vehicle was impaired by the consumption of alcohol.

[34] In my view, reasonable and probable grounds were clearly established, and there have been no breaches of the Charter.

Charter Application – Sections 10(a) and 10(b)

[35] On February 6, 2013, defence counsel advised the court that the section 10 application was not being advanced any longer.

Charter Application – Section 9 - Overholding

[36] Section 498 of the Criminal Code reads as follows:

Release from custody by officer in charge

498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

• (a) release the person with the intention of compelling their appearance by way of summons;
• (b) release the person on their giving a promise to appear;
• (c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or
• (d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

Exception

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

• (a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
  • (i) establish the identity of the person,
  • (ii) secure or preserve evidence of or relating to the offence,
  • (iii) prevent the continuation or repetition of the offence or the commission of another offence, or
  • (iv) ensure the safety and security of any victim of or witness to the offence; or
• (b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

Where subsection (1) does not apply

(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).

Consequences of non-release

(3) An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer's duty for the purposes of

• (a) any proceedings under this or any other Act of Parliament; or
• (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the officer in charge or other peace officer did not comply with the requirements of subsection (1).

[37] The issue to be decided is whether the alleged overholding of the defendant breached section 498 of the Criminal Code and resulted in an arbitrary detention and a breach of section 9 of the Charter. If it did, is the appropriate remedy a stay of proceedings under section 24(1) of the Charter, or some lesser remedy?

[38] The defence submits that Mr. Brown ought to have been released at 9:50pm on October 1, 2010, when he completed his second breath test at the Ontario Provincial Police detachment in Burlington. Instead he was taken by officer Horseman to the Halton Police 30 Division station in Burlington. Then the defendant was taken by custodial officers from Central Lockup at the 20 Division station in Oakville, and not released from there until 9:15am on October 2, 2010.

[39] Mr. Brown had no criminal record or outstanding charges, was polite and cooperative, his identity and his residential address were known. However, his blood alcohol readings were 270 and 260 milligrams of alcohol in 100 millilitres of blood, and he suffered from depression, and had a heart condition and high blood pressure.

[40] Staff Sergeant Susan Delaney, the officer in charge of the Halton Police station in Burlington felt that Mr. Brown should be sent to Central Lockup in Oakville because, if released in Burlington, he might have a heart attack or get into a vehicle and drive in his impaired condition. She asked him if he had someone who could pick him up in Burlington, and he said he did not.

[41] Sergeant Ryan Snow, the first of two officers in charge of Central Lockup in Oakville, testified that the defendant was detained for his own safety. He did not ask if anyone was available to pick Mr. Brown up because it was safer to hold him than to appear as a witness at a Coroner's Inquest.

[42] Sergeant Blair Moroz, who took over as officer in charge after officer Snow's shift ended, was the officer who released the defendant at 9:15am. He did not let him go before this because he may have been a danger to himself or the public due to his high level of intoxication.

[43] Mr. Brown, when giving evidence, conceded that he was intoxicated when in police custody, and had not told the police his sister-in-law was available to drive him home. He also said he was well treated by his police custodians.

[44] It is my conclusion that the Halton Police were amply justified in detaining the defendant until 9:15am on October 2, 2010, for his safety and that of the public. There has been no breach of section 9 of the Charter, in my view.

Charter Application – Section 7 – Destruction of Audio/Visual Recordings

[45] After the defendant was charged, Mr. Lent, on October 8, 2010, submitted a general, written request for disclosure, according to the document attached to the defence application. On April 23, 2012, when Staff Sergeant Susan Delaney was giving evidence, she said that the Central Lockup facility in Oakville routinely makes audio and video recordings of prisoners. On April 24, 2012, Mr. Lent wrote to the Crown requesting disclosure of these items. He was later advised that the retention period was approximately ten months, and therefore no longer available.

[46] The defence argues that the destruction of these audio/visual recordings constitutes a violation of section 7 of the Charter, and asks for a stay of proceedings under section 24 of the Charter, or, in the alternative, "the exclusion of the appropriate inculpatory evidence obtained."

[47] In response, the Crown called Halton Police Inspector Jackie Gordon. She testified that on October 1 and 2, 2010, the prisoner areas of the Central Lockup were video recorded, but there were no audio recordings made. Such recordings are routinely kept for 479 days and then destroyed or erased. Because Mr. Lent did not request them until April 23, 2012, they are no longer in existence. It is extremely expensive to keep such recordings, according to her testimony.

[48] The Crown submits that surveillance video of an accused person in custody after breath testing is not normally disclosed unless a specific request is made, and the relevance explained by defence counsel. The was no specific request for this video until April 23, 2012, and, in any event, the video does not affect Mr. Brown's right to make full answer and defence.

[49] Criminal proceedings can be stayed if there has been unacceptable negligence on the part of the Crown or the police. See R. v. La, [1997] 2 S.C.R. 680 and R. v. Bero, [2000] O.J. No. 4199 (C.A.).

[50] Even had Mr. Lent specifically requested this video, and never got it, is of no great moment since it was after he gave his breath samples. Even assuming it was of relevance on the overholding issue, as to whether the defendant was intoxicated, it was the evidence of Mr. Brown that he, in fact, was intoxicated when in police custody. It is the opinion of this court that there has been no breach of section 7 of the Charter.

The Trial Proper

(a) The Impaired Driving Charge

[51] Mark Harris and Sara Ritchie observed a male in his late 40s or early 50s, with gray hair, and a moustache, driving a Nissan X-Trail, with the same licence plate as the defendant's, driving in a very erratic manner on Highway 6 north, and Highway 5 east. The above description of the driver is consistent with what Mr. Brown really looks like, and the vehicle was definitely his. It is a reasonable inference that Mr. Brown is the one who was driving at the time.

[52] Later, also eastbound on Highway 5, Mr. Brown caused an accident by running into another vehicle ahead of him, which in turn ran into another. At the accident scene, he was identified as the driver who responsible for the accident by Mr. Piche and Ms. Toth, whose cars were struck. He also told officer Horseman that he was the driver responsible for the collision. The evidence from these three witnesses clearly establishes beyond any reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by the consumption of alcohol.

(b) The Over 80 Operation Charge

[53] Officer Bhamber, the qualified breath technician, was challenged by the defence as to whether there really was a second calibration test or not. However, I am satisfied by the evidence of Justin Hinman, the Centre of Forensic Sciences toxicologist, that after seeing the breath room video played in court, and hearing the evidence of officer Bhamber, he was of the opinion that the machine was in proper working order and was operated competently by officer Bhamber. He thought Bhamber may have been in error in thinking the simulator was not on when doing the first calibration check. In his opinion, the accuracy of the blood alcohol readings would not have been affected even assuming that that the simulator was turned off, and then on again.

[54] The defence contended that the Crown had not proven that Mr. Brown did not have any alcohol to drink just prior to, and after the accident. However, there were no alcohol containers found in his vehicle and Mr. Brown told officer Bhamber that he had only consumed a couple of beers earlier in the day, and nothing after the collision. I accept this evidence.

[55] Section 258(1)(c) of the Criminal Code reads as follows:

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

• (c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
  • (i) REPEALED: Repealed before coming into force, effective December 31, 2010 (S.C. 2008, c. 20, s. 3).
  • (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
  • (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
  • (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
  • evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things - that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

[56] Since the defendant's blood alcohol readings were taken outside the two hour presumption period, the Crown is unable to rely on this presumption. However, it can still rely on the evidence of the Centre of Forensic Sciences Toxicologist Justin Hinman, as to the progressive absorption of alcohol into the bloodstream in order to relate the readings back to the time of the offence: see R. v. Burnison, [1979] O.J. No. 22 (C.A.). In Mr. Hinman's opinion, and assuming the time of driving was between 7pm-7:30pm, the defendant's blood alcohol level would have been between 260 and 315 milligrams of alcohol in 100 millilitres of blood. The Crown has also proven this charge beyond a reasonable doubt.

Conclusion

[57] In view of the principles set out in R. v. Kineapple, [1975] 1 S.C.R. 729, the Crown can elect which of the two charges it wishes a finding of guilt to be entered on. The other charge will be ordered to be stayed.

Released: April 25, 2014

Signed: Justice Alan D. Cooper