Ontario Court of Justice

Date: 2014-02-14

Court File No.: Walkerton 12-1071

Between:

Her Majesty the Queen

— AND —

Kevin Gordon Sweiger

Before: Justice Brophy

Heard on: 11 December 2013 and 15 January 2014

Reasons for Judgment released on: 14 February 2014

Counsel:

• Danise Scapinello, for the Crown
• Hedley Thompson, for the defendant Kevin Gordon Sweiger

BROPHY J.:

INTRODUCTION

[1] Kevin Gordon Sweiger has been charged with impaired driving and operating a motor vehicle while his blood alcohol concentration exceeded 80 mg alcohol in 100 mL of blood contrary to section 253(1)(a) and (b) of the Criminal Code of Canada.

[2] The trial was heard on December 11, 2013 and January 15, 2014. There were no Charter applications. The Crown called a number of civilian witnesses, investigating police officers and filed a number of reports from the Centre of Forensic Sciences relying upon section 657.3 of the Criminal Code.

[3] In this case the police obtained and executed a search warrant for blood from University Hospital in London, Ontario. The defence concedes that the warrant was validly obtained and properly executed.

NARRATIVE

[4] On August 6, 2012, Mr. Sweiger, in the early morning hours, was operating an all-terrain vehicle and went off the road rolling the machine causing damage to it and injuring himself. He was discovered by friends unconscious on the road and after emergency treatment was airlifted to London where he was treated at University Hospital. While there blood was drawn for medical purposes.

[5] As part of the Ontario Provincial Police investigation into the incident a search warrant was obtained for the purpose of seizing blood samples from the hospital. Those samples were then provided to the Centre of Forensic Sciences for an analysis of his blood alcohol concentration.

[6] The projected blood alcohol concentration was found to be 187 to 262 mg of alcohol in 100 mL of blood between approximately 3 AM and 3:45 AM on the date in question.

[7] The expert report also indicated that at that level of blood alcohol concentration a person's ability to operate a motor vehicle would be impaired.

ISSUES

[8] The defence argues that there is a continuity issue with respect to the samples analyzed by the CFS.

FACTS

[9] The basic facts are not in dispute.

[10] Friends and acquaintances of the accused testified that on the afternoon of August 5, 2012 and into the early morning hours of August 6, 2012 he drank a number of bottles of beer, both before going to the Paisley Beef Fest, while at the Paisley Beef Fest and after returning to the residence of Ben Walker in the Township of Arran-Elderslie, northwest of Chesley, Ontario.

[11] The civilian witnesses testifying about the alcohol consumption were cautious in their evidence and clearly favouring the accused. Nevertheless the evidence is consistent that Mr. Sweiger had been consuming beer on a fairly constant basis throughout the evening and following morning.

[12] Mr. Walker testified that the accused took his ATV for the purpose of driving home. Mr. Sweiger lived on a farm west of Mr. Walker's residence. This took place sometime between 3 AM and 3:45 AM on August 6.

[13] After Mr. Walker and another person went into the house and were in the kitchen they saw headlights to the west pointing south. They thought something was wrong and ran west on the road and found Mr. Sweiger lying on the middle of the road without a helmet on unconscious. The ATV was in the north ditch overturned.

[14] One of them went to the Sweiger residence and the parents of the accused called 911. Subsequently an EMS vehicle attended, along with the police. The accused was taken by ambulance to the Chesley hospital and shortly after that airlifted to London.

[15] Two nurses from University Hospital, Beatrice Schaeken and Kelly Castellani, testified as follows.

[16] At 7:39 AM trauma blood work was done. That is to say that Beatrice Schaeken drew blood from Mr. Sweiger pursuant to a doctor's order. Kelly Castellani recorded the time the blood was drawn and wrote down the identifying information with respect to the blood being that of the accused, including writing his name on the vials containing the blood, and then placed them in a plastic bag and sent them to the core lab for processing. Although the specific number of vials was not mentioned in the evidence, clearly there was more than one.

[17] Detective Constable Linda Weltz of the South Bruce Ontario Provincial Police was charged with the task of obtaining a warrant for the seizure of the blood held at University Hospital.

[18] She obtained the warrant on August 8, 2012. She attended that same day in the afternoon at the London Health Sciences Centre, Victoria Campus, on Commissioners Road and gave a copy of the warrant to the medical records department at 2:16 PM. She then attended the medical laboratory at 2:28 PM to execute the search warrant with respect to the blood sample. At 2:34 PM she received the blood vials. At 2:35 PM she applied a CFS seal to the plastic bag containing three separate vials. She noted that the name of Mr. Sweiger appeared on each vial. One vial was noted to be the original and two vials were noted to be aliquot portions. The vials were presented to her in a zip lock plastic bag which was described as a vial hazard bag. She put the CFS seal on that bag and then put the bag in a styrofoam cooler with a cold pack contained therein. The CFS seal number placed on the vial hazard bag was 2Q35104. Two further seals were placed on the styrofoam box. These were CFS seals 2Q35105 and 2Q35106.

[19] Officer Weltz then returned to her detachment at 5:18 PM.

[20] At the station she prepared the necessary paperwork including the Case Submission Form required by the Centre of Forensic Sciences.

[21] On August 9, 2012 she shipped to the CFS by CANPAR the styrofoam cooler box containing the three vials seized pursuant to the warrant.

[22] The medical records, which were part of the items to be seized pursuant to the warrant, were received on August 15, 2012 and October 8, 2012. Parts of the medical records were filed in this case without objection. Contained in that material was a toxicology report that indicated that on August 6, 2012 there was ethanol detected in the blood of Mr. Sweiger.

[23] The Case Submission Form submitted to the CFS identified the case and particularly that it related to Kevin Gordon Sweiger. It set out a case history and that a "vial of a sample of blood taken from Kevin Sweiger" was seized.

[24] The Case Submission Form set out the Ontario Provincial Police incident number as LP12222246.

[25] The Centre of Forensic Sciences produced four reports. All four reports referenced the OPP incident number noted above and the name Kevin Gordon Sweiger.

[26] The first report was a toxicology report that indicated that three items were received as part of the Sweiger case submission. The first item was blood, the second and third items were serum. The toxicology report indicated that item number two was analyzed and found to have an ethanol content of 194 mg per 100 mL. The report stated that the serum ethanol concentration of 194 mg in 100 mL is equivalent to a blood alcohol concentration of 167 mg of alcohol in 100 mL of blood at the time of sample collection. This report had some notes attached to it which said, among other things, that all item transfers occurring within CFS are recorded in the laboratory information management system. It also said that a full continuity report from the system is available on request. It further stated that attribution of items to an individual or location is based on information provided to the Centre of Forensic Sciences.

[27] The second report is dated September 4, 2012. This report is in the form required pursuant to section 657.3 of the Criminal Code. The report was for the purpose of determining a projected blood alcohol concentration. The incident involved is described as happening at approximately 3:45 AM with the blood drawn at approximately 7:40 AM. The conclusion reached in this report is that the projected blood alcohol concentration at approximately 3:45 AM is 187 to 247 mg alcohol in 100 mL of blood. The report went on to indicate that it was independent of certain factors but dependent upon additional factors. Those additional factors were not present in this case and the defence raised no issues with respect to same.

[28] This report went on to say that in the expert opinion of the maker of the report an individual would be impaired in their ability to operate a motor vehicle at a blood alcohol concentration within the projected ranges.

[29] The third report is in the same format as the second report and specifically says that the blood was collected at the hospital at approximately 7:39 AM. That report is dated December 5, 2013 and no doubt was produced as a result of the Crown's office carefully examining the case and noting that the blood was collected at 7:39 AM. The projected blood alcohol concentration at approximately 3:45 AM remained the same.

[30] The fourth report is in the form of an email from a scientist at the CFS to the Crown having charge of this file, again referencing Kevin Gordon Sweiger and the OPP incident number. The defence took no exception to this email supplementing the earlier reports. This report was for the purpose of setting out a projected blood alcohol concentration with reference to an incident that occurred between approximately 3 AM and 3:45 AM. The result is that the blood alcohol concentration at the high-end goes up. The projected blood alcohol concentration in the time period between 3 AM and 3:45 AM is 187 to 262 mg of alcohol in 100 mL of blood.

[31] It should be noted that the defence does not object to the expertise of the maker of the report nor with its scientific conclusions.

SUBMISSIONS

Defence Argument

[32] The defence concedes that there is evidence that the accused was operating the ATV at the relevant times.

[33] However in the defence submission the case depends upon the blood analysis and that depends upon whether the Crown has proven that the substance analyzed by the CFS was the blood of the accused.

[34] The continuity argument has several parts.

[35] The first complaint is that the nursing records say the blood was drawn and sent to the lab at the hospital. The evidence from the two nurses is that blood was drawn. However there is no description as to the number of vials of blood drawn. The defence argues that the proper inference is that there was one vial only. When the search warrant for the blood was executed three vials were produced by the hospital. The vials each had the name of the accused on them and two of the vials are described as the aliquot portion or share. The defence says the Crown has not proven that the blood taken by the nurse was the same material that was provided to the police pursuant to the execution of the warrant. This turns on the question of what happened to the blood at the lab in terms of there now being three vials and the fact that two of them are described as aliquot shares.

[36] The argument is that the term "aliquot share" is a specialized term and there is nothing in the evidence that tells the court what that is or what it means. In the absence of expert evidence on that point the defence says that the court can properly find that the hospital manipulated the blood in some fashion and can the court then be confident that the three vials turned over to the police were in fact the product of the blood taken from the accused on August 6, 2012.

[37] This is compounded by the report from the CFS which describes three vials, one containing blood and two containing serum. The CFS report states that a vial of serum was tested for alcohol content. The defence says that there is nothing in evidence that says the serum was a blood product that came from the accused.

[38] Finally the defence argues that there is uncertainty with respect to what the CFS tested. Was it in fact what was submitted by the police? The cross-referencing of identification numbers is, in the defence submission, unsatisfactory for purposes of establishing continuity. For example the CFS seal numbers used by officer Weltz are not referenced in the CFS reports. The defence argues that the protocols adopted by the OPP and the CFS are not sufficiently robust to establish continuity.

[39] At its core the defence issue is that the evidence contains ambiguity as to whether what was tested by the CFS was in fact the blood that was taken from the arm of Mr. Sweiger, and hence the Crown has not proven beyond a reasonable doubt a key element in its case.

Crown Response

[40] The Crown responds by saying that it has been established that the accused was operating the ATV between 3 AM and 3:45 AM on August 6, 2012. The Crown says that the evidence is clear that he had been drinking and that he rolled the machine.

[41] With respect to the continuity issue the Crown emphasizes that on the totality of the evidence with respect to the blood warrant and the testing at CFS it is clear that the blood taken from Mr. Sweiger at the hospital was the same material that was tested and analyzed by the CFS.

[42] The Crown says that the analysis proves the blood alcohol concentration was over the legal limit and that makes out both the over 80 charge and, in the circumstances of this case, the impaired driving charge.

ANALYSIS

[43] The court is of the view that there is sufficient continuity related to the blood obtained from Mr. Sweiger to be satisfied that it was indeed the material analyzed by the Centre of Forensic Sciences.

[44] The key to this case is to understand that there are many ways to prove continuity. The absence of the CFS seal number on the report in and of itself is not fatal. The question is whether or not there is other evidence that proves that the material sent to the CFS was what was seized from the hospital. I am satisfied there is.

[45] After Officer Weltz received the three vials she noted that Mr. Sweiger's name was written on each one of them. As part of her package she referenced an OPP incident number. The case submission then went to the CFS with Mr. Sweiger's name on the Case Submission Form and on each of the three vials along with a reference to the OPP incident number. The reports from the CFS all reference Mr. Sweiger and the same OPP incident number. In my view this is sufficient to establish continuity between Officer Weltz and the CFS.

[46] A comparison has been made to the process used in drug prosecutions. Certificates of Analysis that are received from Ottawa with reference to Controlled Drugs and Substances Act prosecutions coordinate using a number provided by the lab in Ottawa. This system is different than the one used by the CFS. It may be better. But that isn't the point. The question is whether the process used by the CFS is sufficient to tie their analysis to the material supplied by the OPP. It is obvious to me that it was.

[47] The defence raises a question about the meaning of an aliquot portion or share. It is suggested that this has a technical meaning which is beyond the ken of the ordinary person. It may be a term of art, but it is not something that is not easily understood. The Encarta Dictionary English (North America) definition states that aliquot describes a number or quantity that will divide another number or quantity without leaving a remainder. The New Shorter Oxford English Dictionary says that aliquot means something that is contained in the whole an integral number of times. Clearly in this case aliquot means that the blood was divided into three parts. Nothing mysterious about that.

[48] It is noted that the CFS analyzed serum received as part of the submission from the OPP. The CFS chose to deal with it on the basis that while it was serum, nevertheless it was identified as belonging to Mr. Sweiger and coming from University Hospital as a product of the blood warrant. It seems to me that the CFS is uniquely able to determine that the material is part of the blood that was drawn and is able to examine that material for the purpose of analyzing what its blood alcohol concentration was. I see no difficulty on this point. There is nothing to suggest that the serum was not part of the blood sample taken from Mr. Sweiger.

[49] The expertise of the scientist in this case has not been challenged. It follows that the procedure adopted by the scientist was appropriate and that would include analyzing the serum for the alcohol concentration and relating that to the accused.

[50] The final point is that it would be passing strange that the hospital, when it was answering a warrant with respect to a Kevin Gordon Sweiger, produced material that had his name on it but was not his blood. There is no air of reality with respect to this submission.

[51] In light of the expert evidence from the CFS impairment of the accused on the night in question is proven beyond reasonable doubt. That expert evidence combined with the driving evidence and the evidence of drinking proves beyond a reasonable doubt that the accused was impaired by the consumption of alcohol while operating the ATV.

CONCLUSION

[52] For all of these reasons Mr. Sweiger is found guilty of the two offences charged, the over 80 offence and the impaired driving offence.

Released: February 14, 2014

Signed: "Justice Brophy"