Court File and Parties
Court File No.: Newmarket Date: February 21, 2014 Ontario Court of Justice
Between: Her Majesty the Queen — and — Jessica Nicole Carney
Heard: February 21, 2014 Reasons: February 21, 2014
Counsel: Ms. Shambavi Kumaresan for the Crown Mr. Paul Mergler for Ms. Carney
KENKEL J.:
Introduction
Ms. Carney is charged with impaired driving and driving with a blood alcohol level in excess of the legal limit.
The defence called evidence focused on a single issue related to bolus drinking. At the close of the defence case the Crown said they were not calling reply evidence. After preparing submissions the Crown later applied to re-open the case and applied for an adjournment so they could call the toxicologist witness they chose not to have attend the trial. Both applications were refused.
Evidence at Trial
With respect to the Over 80 charge, the breath tests resulted in two readings in good agreement: 252mgs at 158am and 225mgs at 233am. Both tests occurred outside the 2 hour limit so the presumption of identity does not apply. The Crown tendered a written report of a toxicologist. That report calculates the accused's blood alcohol concentration (BAC) at the time of operation to have ranged from 235mgs to 280mgs. The report also notes that any person's ability to drive would be impaired at that blood alcohol level.
The report of Ms. Solbeck is based on four standard premises including an assumed lack of bolus drinking shortly prior to driving – "No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident." Ms. Carney testified to drinking a large amount of alcohol that evening including consumption just prior to the time of driving which the evidence shows would be within 15 minutes of the stop.
Ms. Carney admits that on the evening in question she twice lied to the police about her drinking and that her evidence today reflects much higher consumption. While the court is not permitted to speculate about what BAC might result from the large amount of alcohol she says she drank, it's fair to say that there's nothing about the BAC measured hours later that would be patently at odds with her testimony. The strong odour of alcohol observed by both officers is also a circumstance which is consistent with the level of drinking she described. Her stated timing of her last drink is not inconsistent with the odour observed by the arresting officer. While I approach her evidence with caution I find her testimony credible with respect to the amount of alcohol overall and the timing and size of the final drink.
The Crown's report states that a "large quantity of alcohol" is defined "primarily by the weight and gender of an individual". The report notes that a calculation can be performed to assess the impact of such a quantity on the projected BAC. That calculation was not done in this case.
Analysis
There's no evidence before this court explaining what would amount to a "large quantity of alcohol" in relation to this accused. There's no evidence what impact if any the consumption of the amount of beer the accused described shortly before driving would have had on the accused's blood alcohol level at the time of driving. There's no evidence what blood alcohol concentration would have resulted from the large amounts of alcohol the accused remembers consuming.
While the three remaining elements of the toxicologist's opinion were supported by the evidence at trial and well explained, the Crown has failed to prove that there was "no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident". While the accuracy of the readings is not in doubt, the failure to prove the foundation for the toxicologist's report means there's no evidence relating those readings back to the time of driving.
With respect to the allegation of impaired driving, while the arresting officer certainly had reasonably grounds to stop the vehicle and conduct a screening device test at the roadside there's not sufficient evidence to prove the allegation of impairment beyond a reasonable doubt. I acknowledge that's remarkable given the extent of the accused's drinking that evening and her extraordinary blood alcohol level even hours later.
Conclusion
- Both counts are dismissed.
Released February 21, 2014
Signed: Justice Joseph F. Kenkel