Court Information
Ontario Court of Justice
Date: 2014-06-25
Court File No.: Toronto 12001591
Parties
Between:
Her Majesty the Queen
— AND —
Christina Dragos
Judicial Officer and Counsel
Before: Justice K. Caldwell
Heard on: April 1 and May 8, 2014
Reasons for Judgment released on: June 25, 2014
Counsel:
- Ms. Mareike Newhouse — counsel for the Crown
- Mr. Daniel Libman — counsel for the defendant Ms. Christina Dragos
Reasons for Judgment
K. Caldwell J.:
[1] Ms. Dragos is charged with driving while her blood alcohol level was over the legal limit of 80 mg[^1].
[2] The presence or absence of bolus drinking is the only issue in this case. Ms. Dragos does not dispute the accuracy of the breathalyser readings but argues that they do not reflect the amount of alcohol in her body at the time of driving as she contends that she had consumed most of that alcohol just prior to being stopped thus it hadn't been absorbed in her blood when she was actually driving.
[3] I find Ms. Dragos guilty as I reject her evidence and find that it does not leave me with a reasonable doubt.
Overview of the Evidence
[4] Ms. Dragos testified that she drove from her home in Mississauga to her girlfriend Kiera's home in the west end of Toronto where she left her car. She then headed to the bar Sneaky Dee's in the College and Bathurst area. A few hours later she left, returning to Kiera's where she planned to spend the night. An argument erupted between Kiera, Kiera's boyfriend, and Ms. Dragos. Extremely upset, she then left with a beer in hand and drove to her friend Brandon's apartment nearby as she hoped to stay there. That proved impossible but while outside his building, she continued to drink quickly along with Brandon. She and Brandon then got in her car and headed for Sven's home that was also nearby.
[5] The police observed her speeding while she was driving, allegedly to Sven's. She was stopped, failed the roadside screening test, and ultimately provided two samples of her breath at the station, with readings of 118 mg at 5:50 am and 110 mg at 6:13 am. After she failed the screening device, the officer who prepared the car for a tow found partially empty beer cans in the car.
Assessment of Ms. Dragos' Evidence
[6] Ms. Dragos admitted that she had some difficulty with the timing of her drinks but to the best of her memory she described her drinking pattern that night as follows:
- 11:10 to 11:45 pm – a 1 ounce tequila shot followed by a regular sized bottle of beer;
- 1 am - a further 1 ounce tequila shot;
- 3:30 am – 3:35 am – ½ can of beer;
- 3:45 am – 4:55 am – second ½ of the beer can, followed by a second full can, and then began a third can;
- 3:55 am until 4:05 am stop by police – finished the third can.
[7] This case involves the intersection of section 258(1)(c) and section 258(1)(d.1) of the Code. Section 258(1)(c) outlines the presumption that if certain pre-conditions are met[^2], then the lowest breathalyser reading reflects the accused's blood alcohol level at the time of driving. Under section 258(1)(d.1), this presumption can be rebutted by evidence "tending to show" that the accused's consumption of alcohol was consistent both with a blood alcohol level that did not exceed 80 mg at the time when the offence was allegedly committed and with the blood alcohol level of the breathalyser readings as per section 258(1)(c).
[8] In practical terms, this scenario arises most often in the so-called "bolus drinking" cases such as this case.
[9] In assessing such cases it is first necessary to understand what is meant by the phrase "tending to show". In R v Gibson[^3], the SCC held that "evidence tending to show" must be assessed on a "reasonable doubt" standard. This holding was reiterated two years ago in R v St-Onge Lamoureux[^4].
[10] Further, in R v Boucher the SCC emphasized that this does not mean that the burden of proof shifts to the accused. Instead, "it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt"[^5].
[11] If, then, I am left with a reasonable doubt that the accused was driving with in excess of 80 mg given evidence tending to show that the accused's blood alcohol level did not exceed 80 mg at the time the offence allegedly occurred and tending to show that the concentration of alcohol was as determined by the breathalyser samples as per section 258(1)(c), then the case has not been proven by the Crown.
[12] In R v. Boucher, the Court went on to note that before the trier of fact gets to this ultimate determination, it is necessary to examine the factual foundation upon which the expert opinion is based. If the trial judge finds that factual foundation is not credible and rejects it, then the expert evidence on the accused's blood alcohol level, though still relevant and admissible, has no probative value. "The issue of whether the expert opinion evidence 'tends to show' that the accused's blood alcohol level did not exceed 80 mg at the material time only arises if the accused's evidence of consumption is believed"[^6].
[13] I do not believe Ms. Dragos' evidence of her drinking that night and I find that it does not leave me with a reasonable doubt. I make that finding for the following reasons:
First, I do consider that drinking large quantities of alcohol just prior to and while driving is unusual behaviour and a "relatively rare" phenomenon[^7]. This fact does not settle the issue in this case, of course, as Ms. Dragos' evidence and the open beer in the car does put the issue in play. It is still a factor, however, that I have considered in assessing her evidence;
Ms. Dragos admittedly was untruthful to the breath technician. She told the officer that her last drink had been at midnight or 1 am and admitted in evidence that this statement was untrue. I accept that she panicked and was nervous at the time but I find that the fact she was not honest with the officer on this point detracts from her credibility regarding this issue at trial;
According to her evidence, she took significant steps at the outset of the evening to ensure that she did not drive after she had been drinking. She maintained that she left her car with a friend in the far west end of Toronto and then took public transit to the bar that night. I find it incredible that after having taken such deliberate steps she would then leave her friend's house with beer in hand and continue drinking while driving. I appreciate that she said she was extremely upset but I reject her evidence that she would then behave in the fashion she did given her earlier caution;
For the same reasons, I find it then even more incredible that she would continue drinking with her friend Brandon especially as she knew by this point that she would have to leave his place as she could not spend the night and further that she would once again continue drinking as she drove;
I also find that her testimony that she couldn't remember what means of transportation she used to return to her friend's house from Sneaky Dee's also detracts from her credibility. I would not expect her to remember every detail of that evening but I would expect that she would recall this particular detail if she was relaying an accurate rendition of the events that night.
[14] Further, I have considered the fact that the officers found a ½ can of Pabst Blue Ribbon beer in the cup holder between the driver and passenger seat, another empty Pabst beer can nearby, and a twelve-pack of Pabst with three cans missing in the car. Such evidence does corroborate her evidence that she drank three cans of beer that night and that some of that drinking was done in the car. This evidence does not corroborate her contention that this was the only alcohol she drank that night (with the addition of the two shots and bottle of beer at the bar) nor does it tend to show that the Pabst beer was drunk within thirty minutes of being stopped by the police. I am also aware that the onus of proof does not shift to Ms. Dragos. For all of the reasons I have already outlined, however, I reject her evidence of both the volume and timing of her drinking that night.
The Expert Evidence
[15] Given my rejection of the factual foundation underpinning the expert's, Mr. Moftah's, evidence, it is not necessary for me to consider his evidence[^8]. As I found it problematic, however, I will still make reference to it.
[16] I found Mr. Moftah's evidence extremely difficult to understand, despite repeated clarification questions posed by both counsel and by me. I suspect that at least part of the reason was that it appears that he based his calculations in preparation for trial on a different drinking scenario than that which was put forth by Ms. Dragos at trial. I reach that conclusion given the different scenario in his report, his manner, and the nature of Mr. Libman's questions to him at trial[^9].
[17] The bottom line is that he testified that Ms. Dragos would have had between 52 mg and 108 mg of alcohol in her blood at 6 am.
[18] One of the problems with his calculation is that none of the tests were actually taken at 6 am – they were taken at 5:50 and 6:13 am respectively. I assume he chose 6 am as this was the halfway point between the two tests but his evidence wasn't clear on this point.
[19] Further, Ms. Dragos' readings were 118 mg at 5:50 and 110 at 6:13. The upper end of the possible range outlined by Mr. Moftah is below both readings. Section 258(1)(c) specifies that the lowest reading is the reading at the time of driving when the two results differ thus I will deal only with the reading of 110 mg.
[20] In order to reach the 110 mg reading based upon Mr. Moftah's evidence, Ms. Dragos would have to eliminate alcohol at the very lowest end of the possible elimination range and the machine would have had to over-estimate, albeit slightly, the amount of alcohol in her system. I note that this would have occurred with a machine that Mr. Moftah testified tends to underestimate the readings 80 to 95 % of the time.
[21] In addition, no specific rate of elimination tests were performed on Ms. Dragos. The evidence, then, is based upon Ms. Dragos falling at the far end of the rate of elimination spectrum of the general population with no testing indicating where Ms. Dragos actually falls within that range.
[22] R v Ibanescu and R v Gibson made it clear that expert evidence of this type is relevant and admissible at trial but also commented upon the limited probative value of such evidence as it relates to the general population[^10].
[23] Further, the 110 mg reading was obtained at 6:13 am, later than the time at which Mr. Moftah placed Ms. Dragos within the range of 52 mg and 108 mg. This fact is significant given that Ms. Dragos would have continued to eliminate alcohol and thus one would expect to see an even lower reading at 6:13 am than the range provided by Mr. Moftah.
[24] Even if I had accepted Ms. Dragos' evidence, then, there would have been issues with section 258(1)(d.1) (ii), given Mr. Moftah's evidence.
Conclusion
[25] For the reasons just outlined, I find Ms. Dragos guilty beyond a reasonable doubt of operating her car with in excess of 80 mg of alcohol per 100 ml of blood in her body.
Released: June 25, 2014
Signed: "Justice K. Caldwell"
Footnotes
[^1]: When I refer to blood alcohol levels simply as "mg", I am referring to "mg of alcohol per 100 ml of blood".
[^2]: It is agreed that the requisite pre-conditions were met in this case.
[^3]: 2008 SCC 16 at para. 17
[^4]: 2012 SCC 57 at para. 16
[^5]: R v Boucher, 2005 SCC 72 at para 15, citing R v Proudlock, [1979] 1 S.C.R. 525 at p. 549 and as cited in Gibson, supra, at para. 17.
[^6]: Supra at para. 18
[^7]: R v Grosse, [1996] O.J. No. 1840 (Ont. CA), leave refused [1996] S.C.C.A. No. 465
[^8]: Once again, see R v Gibson, supra, at para. 18.
[^9]: I add, however, that of course the possibility of the different scenario in no way factored into my assessment of Ms. Dragos' credibility. It would be entirely inappropriate to consider that possibility when making my assessment. I only make the observation to explain why Mr. Moftah appeared to be having difficulty conveying his evidence clearly.
[^10]: R v Ibanescu, 2013 SCC 31; R v Gibson, supra, footnote 3. In both cases, this evidence was dealt with in the context of "straddle" evidence. In Gibson the evidence was found to be relevant and admissible. In Ibanescu, the Court clarified that it should be assessed in the manner outlined by LeBel J in Gibson. Justice LeBel commented upon the low probative value of such general population evidence at para. 67 and on the probative value of such evidence specific to the accused at para. 68.