R. v. Glaizghi
Ontario Court of Justice
Before: Justice P. Harris
Reasons for Judgment released on: June 23, 2014
Counsel:
- J. Flaherty, for the Crown
- S. Shikhman, for the Defence
THE CHARGE
[1] The defendant, Feven Glaizghi, was charged on October 20, 2012, with impaired operation of a motor vehicle and 'excess alcohol.' The issues in this case are: (1) impairment and (2) whether the Crown has disproven bolus drinking.
SUMMARY OF ISSUES
[2] The defence in this case has argued that the indicia relied on by the Crown for impairment does not meet the Stellato test and secondly that the Crown had failed to prove beyond a reasonable doubt the absence of bolus drinking ─ being the assumption relied upon by the toxicologist in giving her opinion about Ms. Glaizghi's blood alcohol concentration at the time of the alleged offence: R. v. Grosse; R. v. Bulman; R. v. Hall; R. v. Paszczenko; R. v. Lima.
THE EVIDENCE
[3] Mr. Ghulam Hussain, a taxi driver for 8 – 9 years, testified that on October 20, 2012, he picked up passengers at King Street West and Bathurst Streets and headed west and stopped at a red light at Tecumseh Street in Toronto. He stated that between 2:30 a.m. and 2:40 a.m., he was rear-ended while he waited at a red light. He testified: "I am in the lane where streetcars go." According to Mr. Hussain, he was stopped in the passing lane of the two lanes on the north side of King Street travelling in a westbound direction. He stated: "The car hit the back of my car badly." "That car turned around in front of me and went north on Tecumseh." He gave evidence that the car that hit him went north on Tecumseh Street about 12 to 15 metres where it stopped moving because of a "bent, burst tire" on the front of the car, right side. He stated he turned north on Tecumseh and put on his flashers, parked behind the car and completed his business with his passengers.
[4] Mr. Hussain described a lengthy three-way discussion between the driver, Ms. Glaizghi, himself and the owner of the taxi he had called on his mobile. He testified he said to the female driver: "You can pay my damage and we will be okay. I won't call the police. She said: 'Okay.' So I called the owner." He told the owner that the driver offered $200.00 and the owner accepted that offer. Mr. Hussain said he asked for the money and the driver refused. He again asked how much she wanted to pay and testified: "She say $100.00" Mr. Hussain said he spoke to the owner and he said: "Take $100.00." So he went back to the driver and she was not willing to pay $100.00. He told her: "you are not willing to do anything so I have to call police." He testified she said "you are threatening me, harassing me in the name of police. I'm a student of the law." He said she appeared angry and aggressive. He stated that this discussion with the driver took 15 to 20 minutes and then police arrived 10 to 15 minutes after he asked his "dispatch" to place a call to police. He testified that the left rear tire on his vehicle was bent and turned to the side and the bumper was damaged. At the time of the collision there was a light rain falling, according to Mr. Hussain.
[5] In cross-examination, Mr Hussain was asked how long after the accident the police arrived and he answered: "Within 30 minutes". He was advised that the police arrived at 3:30 am and was asked: "would it be safe to say the accident was anywhere around 3:00 am?" He answered: I'm talking about 2:30 [as the time of the accident]"… "I say it happened after 2:30… 2:38, 2:40."
[6] P.C. Stephen Mugford testified that at 3:12 am he received a call about a property damage accident and arrived on scene at Tecumseh Street and King Street West at 3:30 am. He gave evidence that he spoke to the driver of the vehicle that collided with the taxi, Ms. Glaizghi, and she took a while to respond, her head was tilted, her eyes wide, she looked distant or not totally present. He subsequently smelled alcohol on her breath; thereupon, he made an ASD demand and after a number of attempts to provide a breath sample, there was an "F" result. Consequently, the officer arrested Ms. Glaizghi and took her to the nearest division. He stated he did not form an opinion "she was impaired" until later on, between 4:00 am and 4:40 am. The officer said the opinion was based on the following: she was very irrational, there was an overpowering smell of alcohol, she made a number of attempts to "blow", and he had to answer the same questions from her. He later indicated that by 3:54 am there were more delays in her speech. He stated that in the police vehicle she was not completely comprehensible, he had to direct her to pay attention when they arrived at the division and later he had difficulty trying to obtain the telephone number for a lawyer she wanted to call. Overall, he said "she was very difficult to deal with."
[7] In cross-examination the officer agreed that it had been raining that morning. He stated Ms. Glaizghi said she was coming from a fashion show. He agreed she had no problem "Getting out of the car" and there was nothing unusual about her "steps" to the police vehicle. He testified that he had noted at 4:01 am that she was becoming difficult during the 'parade' [before the Staff Sergeant of the division], not answering questions and staring at him. He agreed that her "cooperation" had become worse after 4:01 am than before that.
[8] P.C. Javier Salermo testified that he arrived on scene at King Street west and Tecumseh Street at 3:30 am and investigated the accident. He stated that the Mazda [the vehicle driven by the defendant] had severe damage to the right front quarter panel and passenger door and the right front tire was facing out at a 45° angle. It was "undriveable." "There was a large debris field on King Street where the collision took place." He stated that the taxi sustained damage to the rear quarter panel, taillight and bumper.
[9] Ms. Betty Chow, a Toxicologist from the Centre of Forensic Sciences in Toronto, was qualified and gave expert evidence as to the defendant's blood alcohol level at the time of the driving incident based on the science of projecting blood alcohol levels back in time along a well-established absorption/elimination curve. The breath readings were admitted as agreed fact as follows: (1) at 5:43 am the reading was 172 mgs. percent and, (2) at 6:12 am the reading was 179 mgs. percent. Ms. Chow based her opinion on a number of assumptions, only one of which has significance for this trial. The underlying assumption for her opinion was that there had been no bolus alcohol consumption within 15 minutes of the driving incident because, as she stated: "15 minutes after consuming a quantity of alcohol, a significant proportion of the alcohol would be absorbed into the blood" of that individual. Ms. Chow later testified that: "A majority makes it into the blood in 15 minutes." Since there was some controversy about the time of the driving incident, she offered an opinion based on hypothetical time frames. If the driving incident had occurred between 2:00 to 2:30 am, she projected a blood alcohol content of between 180 to 245 mgs. percent; if the driving incident had occurred between 2:30 to 2:44 am, she projected a blood alcohol content of between 180 to 235 mgs. percent; if the driving incident had occurred between 2:44 to 3:15 am, she projected a blood alcohol content of between 175 to 230 mgs. percent.
[10] On the basis of all of evidence I conclude that if the "no bolus drinking assumption" is proven, the alcohol content of the defendant's blood would have fallen somewhere between 180 and 235 mgs. percent in the time frame 2:30 to 2:44 am. The weight of the evidence points to this time frame (2:30 to 2:44 am) primarily because the taxi driver Mr. Hussain was very firm in his evidence (he testified he made a note of the time) ─ "I say it happened after 2:30… 2:38, 2:40." The toxicologist was asked hypothetically ─ if the incident time frame was 2:44 to 3:15 am and the driver was female, and there was no alcohol in her blood at the time of the incident (i.e. alcohol was only consumed during the 15 minutes before the incident), how much vodka would she have to drink to reach a BAC of 172 mgs. percent at 5:43 am? Her answer was 7 to 8.5 oz. of 40 % spirits like vodka.
[11] In cross-examination, Ms. Chow was asked what level of alcohol consumption within 15 minutes of the 2:30 to 2:44 am time frame would place the defendant under a BAC of 80 mgs. percent given the same breath sample readings. Ms. Chow performed the calculation based on the defendant's weight and gender and projected that 4 to 5.5 oz. of 40% spirits would result in a BAC projection of less than 80 mgs. percent at the time of the driving incident. Ms. Chow agreed that if bolus drinking took place and a person's BAC was rising, she would expect the person to appear "less sober as time goes on."
[12] The defendant, Feven Glaizghi, testified that she came to Toronto looking for work in September 2012 after studying law in Saskatchewan. She gave evidence that on October 20th she completed work at 1:30 am and drove a co-worker to Union Station, arriving before the 2:00 am closing of the Toronto subway system. From there she said she drove to a licensed club on King Street West, the Century Room, where she joined some co-workers after a fashion show. She stated the bar had closed by the time she arrived but she was admitted because of her connection with the show. She described how she took some time to find her group in the crowded premises and because of bottle service; her colleagues were pouring their own drinks. As she arrived, her group was leaving and she was poured a large quantity of straight vodka to "catch up." She stated she drank that quickly and as she was leaving a co-worker poured another large, "very strong" glass of vodka and cranberry juice which she drank while she was leaving the bar. She said she went directly to her vehicle which was parked in front of the premises and drove west on King street approximately 500 metres where she was involved in the accident at Tecumseh Street. Ms. Glaizghi gave evidence that the taxi had stopped close to parked cars in the curb lane as she approached and as it seemed to be picking up fares, she decided to drive around it. As she was driving to the left to avoid the cab she said she felt the tires slip on the wet streetcar tracks, the car jerked and the right side of her car hit the taxi. That was about 2:30 am according to her. She testified she did not feel any effects of alcohol when she left the Century Room. She estimated the period of time from the first drink to the accident as 11 to 16, 17 minutes.
[13] In cross-examination she gave evidence that when she arrived at the party with her co-workers in the bar, "Everyone was drunk." She felt she was being "social" to have a drink. Ms. Glaizghi was asked why she would drink when everyone was leaving and she said she was not thinking about a plan to drive at that stage. She stated she slowed down about 3 car lengths from the taxi and was going, "About 10 kms. per hour" when she tried to go around the taxi. She agreed she did not know how long it took to get to the Century Room or what time she arrived. Ms. Glaizghi was asked why she was so exact about how long "things took" at the Century Room: "We're you continually looking at your watch?" She replied that, "The time was based on when I arrived ─ they were getting ready to leave." She was asked: "But you have the exact time of drinks and how long it would take to get home?" She agreed.
ANALYSIS
(a) The Impaired Operation Charge
[14] First, to the extent that credibility issues must be resolved in determining the result in this case, I have instructed myself in accordance with the principles set out in R. v. W.(D.). Second, I am guided by the following legal principles in respect to the offence of impaired operation:
In R. v. Stellato, Labrosse J.A. stated:
In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
It is trite law that there is no single test or series of observations of impairment. There should be a consideration of a combination of several tests or observations including speech, smell of alcohol, manner of walking and aspects of the eyes, etc. and circumstantial evidence is not to be considered in isolation: the entirety of the evidence must be considered in determining whether the prosecution has discharged the burden of proof.
[15] I do not accept the defendant's evidence about her state of impairment, or lack thereof, at the time of the accident, nor does it, standing alone, leave me in a state of reasonable doubt about her culpability on the charge of operating a motor vehicle while her ability to do so was impaired by the consumption of alcohol. However, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. I have concluded I am not so convinced and that the defendant must be acquitted of this charge for the following reasons:
(a) Aside from the accident and Ms. Glaizghi's angry and aggressive tone, there was no evidence forthcoming from the taxi driver, Mr. Hussain that would establish any of the classic indicia of 'impaired operation."
(b) The arresting officer, P.C. Mugford was in close quarters with the defendant from the time of his arrival on scene at 3:30 am and he gave evidence that he did not conclude, "she was impaired until later on in the evening…. between 4:00 and 4:40 am." He agreed she had no problem "getting out of the car" and there was nothing unusual about her "steps" to the police vehicle. He testified that he had noted at 4:01 am that she was becoming difficult during the 'parade' [before the Staff Sergeant of the division], not answering questions and staring at him. He agreed that her "cooperation" had become worse after 4:01 am than before that.
(c) While a rear-end collision is generally inferential of a serious misjudgment on the part of a driver who collides with a standing vehicle (if it was standing), the road surface was wet, Ms. Glaizghi was not familiar with Toronto driving conditions such as streetcar tracks and there was disputed evidence about where the taxi was in relation to the passing lane, the red light, and whether the taxi started to move just as the Glaizghi vehicle started to pass it on the left. P.C. Javier Salermo arrived at the scene and prepared an accident report and gave evidence of a "large debris field on King Street where the accident took place." His evidence of the location of the debris field may have settled some of the above-noted questions about how the accident took place. Without the benefit of this evidence or any expert opinion as to the position of the vehicles on the roadway at point of impact, I cannot with any confidence conclude who was at fault in the accident.
[16] In all the circumstances, I am not satisfied there is sufficient evidence of impairment by the consumption of alcohol in respect to the operation of the defendant's motor vehicle to establish that offence beyond a reasonable doubt having regard to the test set out in R. v. Stellato.
(b) The Excess Alcohol Charge
[17] The defendant's blood-alcohol readings more than two hours after the incident were 172 and 179 mgs. per cent. The Crown's toxicology expert gave an opinion that the defendant's blood-alcohol level at the time of the incident would have been between 175 and 245 mgs. per cent depending on different assumptions as to the time of the incident. I have made the determination that the time of the incident was between 2:30 and 2:44 am as a result of the evidence of the only two witnesses present during the accident, Mr. Hussain and Ms. Glaizghi. Since they both testified that the accident took place at about 2:30 am (Mr. Hussain provided a range of 2:30 to 2:40 am), the toxicology opinion can be narrowed to an estimated BAC range of 180 to 235 mgs. percent at the time of driving. Of course, the validity of this opinion is premised upon the Crown proving the "no bolus alcohol" assumption. The defence sought to invalidate the expert's opinion by adducing evidence that the defendant consumed a large quantity of alcohol within fifteen minutes of the time of the incident. Because of this bolus drinking, it was argued, the alcohol may not have been absorbed into her bloodstream at the time of the incident, so that, although her blood-alcohol exceeded the legal limit later, there was a reasonable doubt that it was over 80 mgs. at the time of the incident.
[18] The defence relied on: (1) the defendant's evidence of bolus consumption in a nearby club, a short time before the collision; (2) the general absence of indicia of impairment at the scene such that the arresting officer would not have charged her with impaired operation at that time ― but did so when her condition deteriorated later at the police division; and (3) the rising blood-alcohol levels on the Intoxilizer 8000 at 5:43 am and 6:12 am (172 and 179 mgs. percent) as indicative of bolus consumption just before the driving incident. The Crown relies on the toxicologist's assumptions and the common sense, reasonable inference that normal people do not consume large quantities of alcohol shortly before driving.
[19] Ms. Glaizghi's evidence about the number of drinks she consumed, the specific amount of alcohol she consumed and when she consumed that alcohol, was in my view, manifestly unreliable. According to her evidence, when she arrived at the party with her co-workers in the bar, "Everyone was drunk." She felt she was being "social" to have a drink. She stated she "chugged" her first drink to "catch up" with the consumption levels of the others and then went looking for a washroom. Ms. Glaizghi was asked why she would drink when everyone was leaving and she said she was not thinking about a plan to drive at that stage. The defendant testified her time calculations were based on some type of deductive process: she was asked: Were you continually looking at your watch?" She replied that, "The time was based on when I arrived ─ they were getting ready to leave." There is no basis for thinking this evidence is any more than after-the-fact reconstructive guesswork with a view to compressing the drinking evidence into the 15 minute bolus drinking window of absorption delay.
[20] I acknowledge that some level of bolus drinking would explain the lack of significant indicia of impairment at the scene of the accident having regard to the high readings at the police division. The only inference I can draw from that evidence would be based on judicial notice that her BAC was likely rising at the time of the driving incident. However the lack of indicia of impairment at the scene does not support an inference that her BAC at the time she last operated the vehicle was at or below 80 mgs. percent. Neither does the latter inference flow from breath readings that are still increasing between 5:43 am and 6:12 am. As well, a finding of not guilty on the impaired operation charge does not necessarily dictate a not guilty result on the s. 253(b) charge. These conclusions are not required to be legally consistent. On the basis of Ms. Glaizghi's evidence, virtually all of the alcohol consumption took place 15 to 17 minutes before the accident. According to the toxicology evidence which was accepted by the defence, she would have had to have consumed approximately 7 to 8.5 oz. of vodka in the 13 – 15 minutes between the first drink and the time she left the club. (She estimated it would have taken 2 minutes to drive to the scene of the accident). This is an outrageous amount of alcohol to drink just to be sociable particularly in view of the fact the party was over and her colleagues were leaving the club. In the circumstances, I am not able to accept the defendant's evidence as to the timing and quantities of alcohol consumed for the following reasons:
(a) The defendant's time calculations are built on a deductive analytical process involving the reconstruction of events based on how long she thought the different actions and interactions (she could recall) would have taken. This deductive reasoning was undertaken sometime after the events of October 20th through the refracted prism of a mind befuddled with at least twice the prohibited level of alcohol at 5:43 and 6:12 am. There is simply no basis in reality for the belief that a day or more after the fact she could recall every movement, every interaction with colleagues and calculate the time each activity took so precisely that she could be sure that all the drinking took place entirely within 15 minutes (or so) of the accident on King Street West.
(b) There is no basis in logic or rationality to feel the need to "catch up" to others who she recognizes as being drunk when she arrives, particularly when they were in the process of leaving the club at the end of the night. It seems to me it is possible to be just as "social" with colleagues by simply 'sipping' rather than "chugging" the drink she was handed. Most telling was her response to the question ─ why would she drink when everyone was leaving? She said she was "not thinking about a plan to drive at that stage." So, apparently, she was not thinking about a plan to drive when everyone was leaving, and this is within 15 minutes of entering her car to drive home. It just does not make sense.
(c) The quantity of alcohol consumed at the Century Room was unknown and unquantifiable. For the unabsorbed bolus alcohol consumption to afford the defendant a defence to the excess alcohol charge, the quantity she drank at the club before driving has to be determinable. According to the toxicology evidence, the alcohol consumption that would be consistent with a BAC of 80 mgs. percent or less at the time of the driving incident could vary from a projected 7 to 8.5 oz. of vodka if all the alcohol was consumed within 15 minutes of the driving incident to as little as 4 to 5.5 oz. of vodka in the last 15 minutes (if there was earlier drinking such that her BAC was close to the legal limit of 80 mgs. percent at the time of the driving. The point is ─ if I knew the quantity of alcohol consumed in the 15 minutes before the accident ― that specific volume would either confirm or discredit the validity of the bolus drinking defence. If it was 7 to 8.5 oz. of vodka (as reckless as that might be), that would prove that the defendant was very likely under the legal limit at the time of driving. However, if the amount of vodka consumed in the 15 minutes before the incident was less than 4 oz., on the basis of the toxicology evidence, the defendant would have had a BAC of over 80 mgs. percent at the time of driving in order to arrive at the final BAC readings at the police division. Without reliable evidence of the timing and quantities of alcohol consumed, the bolus drinking proposition is ultimately little more than speculation and guesswork.
[21] The next question for consideration is whether the Crown has met its burden of proving the facts underlying the toxicologist's "no bolus drinking" assumption. I have concluded that I cannot accept the evidence of the defendant as to bolus consumption for the reasons given, and that evidence does not raise a reasonable doubt as to whether the blood/alcohol level at the time of the driving incident was at a prohibited level notwithstanding the fact that I do accept her testimony that the club she had attended was only 2 minutes from the accident scene. I just do not believe her evidence of bolus consumption based as it is, on a dubious process of recollection as to the timing and quantities of alcohol consumed.
[22] One might then ask ― has the Crown met its onus by proving that Ms. Glaizghi had not engaged in bolus drinking? There are no statements and no other witnesses as to her drinking pattern at the club. In R. v. Paszczenko; R. v. Lima the Court of Appeal considered this question and reached the following conclusions:
[29] 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. As noted above, bolus drinking has been said to be a "relatively rare" phenomenon: Phillips, at pp. 158-62 C.C.C. "No bolus drinking" is therefore largely a matter of common knowledge and common sense about how people behave.
CONCLUSION
[23] I have applied the reasonable inference suggested in the case authorities and have concluded that normal people do not consume large quantities of alcohol shortly before driving and that is was inherently unlikely that the defendant's evidence could be correct, that in the space of 15 minutes or so, before driving home, she consumed the equivalent of 7 to 8.5 ounces of alcohol. I have rejected her evidence on this issue and having done so, there is no evidence of bolus drinking, nor is there any other evidence to undermine the common-sense inference of drinking at a normal pace: R. v. Hall.
[24] Additionally, while it was insufficient to meet the criminal standard of proof on the charge of impaired operation, there was some circumstantial evidence tending to support the view that there was no bolus drinking ― based on the circumstances at the scene of the driving incident. Ms. Glaizghi conducted herself in communications with Mr. Hussain in a manner that could only be described as bizarre and when P.C. Mugford first dealt with her he described her as taking "a while to respond, her head was tilted, her eyes wide, she looked distant or not totally present." Given these facts, together with the application of the common sense inference, I have concluded that the Crown has proven the facts underlying the toxicologist's "no bolus drinking" assumption to the requisite standard. Consequently I have determined that the charge of "over 80" has been proven beyond a reasonable doubt and there will be a finding of guilt on that charge. As noted above, Ms. Glaizghi is acquitted of the impaired operation charge.
P. Harris, J.
JUNE 23, 2014.