R. v. Jordaan

Court File No.: Toronto Region Date: 2014-03-20 Ontario Court of Justice

Between: Her Majesty the Queen — and — Francois Jordaan

Before: Justice Andrea E.E. Tuck-Jackson

Heard on: November 1, 2010; June 24, 2011; March 12, June 19, September 10, November 13, 2012; May 1, September 19, November 1, 2013

Reasons for Judgment released on: March 20, 2014

Counsel:

• Mr. R. Gayne, for the Crown
• Mr. B. Starkman, for the accused Francois Jordaan

TUCK-JACKSON J.:

I. Overview

[1] Francois Jordaan stands charged that he, on or about the 14th day of January, 2010, did operate a motor vehicle with a blood-alcohol concentration in excess of 80 mg of alcohol per 100 mL of blood.

[2] The theory of the Crown is advanced through a number of documentary exhibits, together with the testimony of P.C. Anthony Amantea, P.C. Adam Halagian, P.C. Darrell Hayward, P.C. Julian Andrici, a qualified breath technician, and Ms. Betty Chow, a toxicologist with the Centre of Forensic Sciences.

[3] The defence elected to call no evidence at the trial proper.

[4] On the strength of Reasons for Judgment released on November 28, 2012, I concluded that during the investigation into this matter, the police violated Mr. Jordaan's right to be secure against unreasonable search or seizure, as guaranteed by § 8 of the Canadian Charter of Rights and Freedoms. By way of a remedy, pursuant to § 24(1) of the Charter, I directed that the Crown was disentitled to rely upon the presumption of identity, conferred by ¶ 258(1)(c)(iv), and the presumption of accuracy, conferred by ¶ 258(1)(g), of the Criminal Code. Instead, the Crown bears the full persuasive and evidentiary burdens of proving, beyond a reasonable doubt, that Mr. Jordaan's blood-alcohol concentration at the time of analysis by an approved instrument was (1) accurate and (2) identical to Mr. Jordaan's blood-alcohol concentration at the time of driving.

[5] It is the position of the defence that, having regard to certain frailties in the toxicological opinion evidence led by the Crown, it has not met that burden.

II. Summary of the Relevant Evidence

1. The Impugned Driving & Breath Testing

[6] In my Reasons for Judgment in relation to various pre-trial applications for relief under the Canadian Charter of Rights and Freedoms, dated November 28, 2012, I made certain findings of fact that have equal application to the trial proper. For the sake of brevity, I will repeat, herein, only portions of the evidence that are relevant to the issues before me on the trial proper.

[7] Shortly after 11:00 p.m. on January 14, 2010, P.C. Anthony Amantea and P.C. Adam Halagian of 23 Division pulled over Francois Jordaan on Bridesburg Drive, just north east of the intersection of Dixon and Martin Grove Roads, Toronto. They stopped Mr. Jordaan because P.C. Amantea had observed that the former was not wearing a seatbelt.

[8] P.C. Amantea approached the driver's door of the stopped vehicle on his own. Mr. Jordaan opened his door, prompting the officer to direct him to close it and roll down his window. Mr. Jordaan complied. P.C. Amantea disclosed the reason for the stop and demanded to see documentation pertaining to vehicle ownership and insurance. As Mr. Jordaan retrieved this documentation, P.C. Amantea asked from where he had come and the former indicated that he was coming from downtown. It was at this juncture that P.C. Amantea detected what he described as a "strong odour of alcohol" emanating from Mr. Jordaan's breath. The officer further noticed that Mr. Jordaan's eyes were red and glossy and that his speech had a slur. The documentation that Mr. Jordaan produced was in order. P.C. Amantea further asked Mr. Jordaan whether he had consumed alcohol that night. Mr. Jordaan replied something to the effect that he had had nothing to drink. P.C. Amantea followed up by inquiring why, then, could he smell alcohol on Mr. Jordaan's breath. Mr. Jordaan replied that he had just dropped off a friend who had been drinking. Apparently dissatisfied with this response, P.C. Amantea asked Mr. Jordaan, once again, if he had consumed alcohol and Mr. Jordaan replied, "No. If you want me to take a test, I can." P.C. Amantea formed the suspicion that Mr. Jordaan had alcohol in his system or body. At that point the officer indicated that he was going to ask that an Alcotest be brought to the scene and Mr. Jordaan indicated, "Okay, that's fine."

[9] P.C. Amantea informed P.C. Halagian of what had just transpired during his conversation with Mr. Jordaan. At 11:15 p.m., P.C. Halagian requested over the radio that an Alcotest be brought to the scene.

[10] The two officers remained in their scout car and Mr. Jordaan remained in his vehicle while they waited for the device to arrive.

[11] Five minutes later, at 11:20 p.m., P.C. Darrell Hayward arrived with an Alcotest 7410 GLC bearing serial number ARF J0208.

[12] Once the device had arrived on scene, P.C. Amantea read the approved screening device demand to Mr. Jordaan. He asked Mr. Jordaan if he understood what was being asked of him, and the latter replied in the affirmative. At 11:22 p.m., P.C. Amantea escorted Mr. Jordaan to the former's scout car. P.C. Hayward showed Mr. Jordaan how to use the device. Shortly before 11:24 p.m., Mr. Jordaan blew into the device in the presence of all three officers. The first sample that Mr. Jordaan provided was insufficient for analysis, as demonstrated by the fact that the device did not generate a reading. At 11:24 p.m., Mr. Jordaan provided a second breath sample. This time it was sufficient and the device generated an "F" reading which P.C. Amantea understood to mean that Mr. Jordaan had a blood-alcohol concentration in his body that exceeded the legal limit. P.C. Hayward asked Mr. Jordaan if he wanted to provide another sample of his breath into the device and the latter responded in the affirmative. At 11:26 p.m., Mr. Jordaan provided another suitable sample of his breath and the device generated another "F" result.

[13] At 11:28 p.m., P.C. Amantea arrested Mr. Jordaan for operating a motor vehicle with a blood-alcohol concentration in excess of the legal limit as Mr. Jordaan had twice registered an "F" on the approved screening device in the officer's presence. The officer handcuffed Mr. Jordaan and then read him his rights to counsel. Following a brief exchange in relation to Mr. Jordaan's access to counsel, P.C. Amantea read Mr. Jordaan the breath demand for an approved instrument.

[14] At 11:32 p.m., P.C. Amantea, together with P.C. Halagian, escorted Mr. Jordaan to 22 Division, the closest location of an available breath technician, as per the information provided by the police dispatcher. P.C. Hayward remained at the scene until a tow truck could arrive for Mr. Jordaan's vehicle.

[15] Mr. Jordaan and the officers arrived at 22 Division at 11:43 p.m., making no unscheduled stops en route. Upon arrival, the officers paraded Mr. Jordaan before the Officer-in-Charge of the station.

[16] Following the parading process, the officers led Mr. Jordaan to the report room. P.C. Halagian put in a call for duty counsel at 11:58 p.m. and, at 12:13 a.m., duty counsel called back. The police then put Mr. Jordaan on the phone with duty counsel. When the conversation with counsel had concluded, Mr. Jordaan motioned that he was finished and, at 12:27 a.m., P.C. Amantea took him to the breath testing room.

[17] Mr. Jordaan provided a suitable sample of breath into the approved instrument operated by P.C. Iulian Andrici, a qualified breath technician. Once the testing process had concluded, P.C. Amantea escorted Mr. Jordaan back to the report room. At 12:52 a.m., P.C. Amantea returned Mr. Jordaan to the breath testing room, following which Mr. Jordaan provided a second suitable breath sample into the approved instrument. The taking of those breath samples was captured on video. A DVD of that video recording was marked as Ex. 6 in this proceeding. A Certificate of a Qualified Technician, prepared by P.C. Andrici, was marked as Ex. 3 in this proceeding. It indicates, inter alia, that:

• (1) at 12:35 a.m., P.C. Andrici completed taking the first breath sample and that he found the result of the analysis of that breath sample to be a truncated reading of 110 mg of alcohol in 100 mL of blood; and

• (2) at 12:55 a.m., P.C. Andrici commenced taking the second breath sample and that he found the result of the analysis of that breath sample to be a truncated reading of 100 mg of alcohol in 100 mL of blood.

The alcohol test records generated by the approved instrument indicate the pre-truncated readings. Exhibit 5B indicates that the first reading generated by the approved instrument was 116 mg of alcohol in 100 mL of blood. Exhibit 5C indicates that the second reading generated by the approved instrument was 108 mg of alcohol in 100 mL of blood.

[18] P.C. Andrici had arrived at 22 Division at 11:46 p.m. on January 14, 2010. Shortly thereafter, he began to prepare the Intoxilyzer 5000C for receipt of Mr. Jordaan's breath samples. The officer performed a diagnostic check of the instrument at 11:52 p.m. He then performed a calibration check at 11:53 p.m. A copy of the Certificate of an Analyst which related to the alcohol standard solution used by the approved instrument to perform its calibration check was marked as Ex. 4 in this proceeding. The results of the diagnostic and calibration checks were as he expected them to be. Finally, at 11:57 p.m., he conducted a self-check test. He provided a suitable sample of his own breath into the instrument and, after it analysed same, it registered a reading of "0". At the time of testing, P.C. Andrici had no alcohol in his system. At each phase of testing, the officer caused the instrument to generate a printout of the testing process and the results. The results of the aforementioned tests appear on the Intoxilyzer Test Records marked as Exs. 5A and 5B in this proceeding. At the conclusion of these tests, P.C. Andrici was satisfied that the approved instrument was in good/proper working order and ready to receive samples of Mr. Jordaan's breath. During his examination-in-chief, he reviewed the contents of the Ex. 3, the Certificate of a Qualified Technician, and confirmed that its contents were accurate.

2. The Toxicological Evidence

[19] An affidavit of Inger Bugyra, Forensic Toxicologist with the Centre of Forensic Sciences, was filed as Ex. 7 in this proceeding in accordance with the provisions of § 657.3 of the Criminal Code. Exhibit A thereto is comprised of a report, dated January 3, 2013, which addresses Ms. Bugyra's projected estimate of Mr. Jordaan's blood-alcohol concentration at the time of driving. Ms. Bugyra was unavailable to testify at Mr. Jordaan's trial. Accordingly, the Crown called Ms. Bugyra's colleague, Betty Chow of the Centre of Forensic Sciences, to interpret Ms. Bugyra's report. As confirmed by a letter prepared by Ms. Chow, dated March 8, 2013 and marked as Ex. 8 in this proceeding, she agrees with, and adopts, the conclusions reached in Ms. Bugyra's report. The Crown made Ms. Chow available for cross-examination by Mr. Jordaan's counsel.

[20] The salient portions of the report, as amplified by Ms. Chow's viva voce evidence, reflect the following about the toxicological opinion evidence before the court:

(1) The evidence contains interpretations and opinions based on scientific data;

(2) At the time of driving, namely 11:09 p.m. on January 14, 2010, Mr. Jordaan's projected blood-alcohol concentration would have been between 100 mg of alcohol in 100 mL of blood (assuming a rate of elimination of alcohol from the blood of 10 mg of alcohol in 100 mL of blood per hour) and 135 mg of alcohol in 100 mL of blood (assuming a rate of elimination of alcohol from the blood of 20 mg of alcohol in 100 mL of blood per hour);

(3) The reliability of this opinion is premised upon the following assumptions:

a. At 12:35 a.m. on January 15, 2010, analysis of Mr. Jordaan's breath sample by the Intoxilyzer 5000C generated a result of 116 mg of alcohol in 100 mL of blood;

b. At 12:55 a.m. on January 15, 2010, analysis of Mr. Jordaan's breath sample by the Intoxilyzer 5000C generated a result of 108 mg of alcohol in 100 mL of blood;

c. The Intoxilyzer 5000C generated reliable readings of the blood-alcohol concentration at the time of testing. In this regard, Ms. Chow's review of the Intoxilyzer 5000C Test Record indicates that the calibration of the instrument was checked and it appears to have been in proper working order. There is nothing in the DVD recording of the breath testing procedure that suggests that the results obtained were unreliable. Experience dictates that when the Intoxilyzer 5000C is properly operated by a qualified Intoxilyzer 5000C technician, it provides reliable readings of the blood-alcohol concentration at the time of testing;

d. Breath testing for alcohol is associated with both analytical and biological variability. Breath testing by the Intoxilyzer 5000C typically underestimates an individual's blood-alcohol concentration. Overestimation is rare and is highly unlikely to exceed 10%. This potential for overestimation does not relate to the operation of the approved instrument but, instead, relates to potential variations in rates of elimination of alcohol from the bloodstream and in the blood to breath ratio of a test subject. There is no (and cannot be) any reliable evidence as to what percentage of people are susceptible to an overestimation of their blood-alcohol concentration. Science cannot assign a numerical value to that phenomenon;

e. Mr. Jordaan's blood to breath ratio is 2100:1. The blood to breath ratio refers to relationship between alcohol present in the bloodstream and alcohol present in the breath. An approved instrument indirectly measures the blood-alcohol concentration by measuring the breath-alcohol concentration and then converting the result by the appropriate ratio. Most people have a blood to breath ratio of 2300:1. The Intoxilyzer 5000C is designed to analyse on the assumption that the test subject has a blood to breath ratio of 2100:1. As a consequence, the test results generated by the approved instrument are generally an overestimate of the test subject's actual blood-alcohol concentration. However, the instrument would, by virtue of its calibration setting, overestimate a test subject's blood-alcohol concentration if his or her blood to breath ratio were lower than 2100:1. For example, the approved instrument would overestimate a test subject with a blood to breath ratio of 2000:1 by about 5%. To measure an individual's blood to breath ratio, it is necessary to simultaneously draw a blood sample and take a sample of deep lung breath and then compare the results. As to how rare a blood to breath ratio of less than 2100:1 is, Ms. Chow recited the outcome of a metadata analysis conducted by a number of her colleagues at the Centre of Forensic Sciences. The analysis considered various studies involving blood to breath ratios. On the strength of the data they reviewed, they concluded that about .5% of the population has a blood to breath ratio of less than 2100:1. The accuracy of this figure is, of course, limited by the sampling of the studies that were the subject of the metadata analysis. Ms. Chow drew upon this figure to illustrate what she meant by the term "rare" when referring to the frequency with which an approved instrument overestimates a test subject's blood-alcohol concentration;

f. Mr. Jordaan's body eliminates alcohol from the blood at a rate somewhere between 10 and 20 mg of alcohol in 100 mL of blood per hour. A rate of elimination at or below 10 mg/100 mL/hr is rare;

g. Allowance was made for a plateau of up to two hours. A plateau in the blood-alcohol concentration represents a period of time in which there is no significant change in the blood-alcohol concentration due to the rate of absorption of alcohol into the body being approximately equal to the rate of elimination of alcohol from the body. A plateau of greater than two hours is rare. A plateau of less than two hours will result in an increased blood-alcohol concentration at the lower limit of the projected range;

h. Mr. Jordaan did not consume large quantities of alcoholic beverages within approximately 15 minutes prior to the impugned time of driving; and

i. Mr. Jordaan consumed no alcoholic beverages after the impugned time of driving and before the testing by the approved instrument;

(4) The projected range in blood-alcohol concentration is calculated independent of the subject's gender, height, weight, and age;

(5) Assuming Mr. Jordaan weighs 100 kg, in order to have a blood-alcohol concentration of 80 mg of alcohol in 100 mL of time at the impugned time of driving, he would have to have consumed 2 to 2 ¾ alcoholic beverages (where alcoholic beverage is defined to include 1 ½ fluid oz. of spirits (40% alcohol v/v); 12 fluid oz. of beer (5% alcohol v/v) or 5 fluid oz. of wine (12% v/v) within 15 minutes prior to driving;

(6) The intensity of an odour of alcohol on the breath can be consistent with recent consumption of alcohol, though not necessarily so. However, the intensity of odour tells nothing of how recently, whether 15 or 30 minutes beforehand, the alcohol was consumed. It also is in no way indicative of the blood-alcohol concentration.

[21] As noted above, the pre-driving drinking scenario discussed by Inger Bugyra in her report, and endorsed by Ms. Chow, involved an assumption in relation to Mr. Jordaan's weight, namely, that he weighed 100 kg at the time of the impugned driving and, of course, at the time the approved instrument analysed his breath samples. That assumption of weight was sourced back to an entry that P.C. Halagian made on Mr. Jordaan's Record of Arrest, which was marked as Ex. 2 in this proceeding. When asked about whether this figure accurately captured Mr. Jordaan's weight, the officer candidly indicated that he probably meant to enter a weight of 200 pounds, but, at the time of testifying, was not sure about this. In the witness box, he calculated that 100 kg converted to 240 pounds and then, upon reflection, estimated that Mr. Jordaan weighed closer to 200, than 240 pounds.

[22] When asked about the source of this statistic, P.C. Halagian was unsure. He offered three possibilities: (1) The figure may have come directly from the accused on the night in question in response to a question posed by the officer. If it had come from Mr. Jordaan, the officer could not assist as to whether the information was obtained from Mr. Jordaan before or after he had had a chance to speak with duty counsel; (2) The figure may have come from a police database. The court heard no evidence as to the source of the information regarding the accused's weight within the police database. The court heard no evidence as to how recent or dated the information on the police database might have been; and (3) The figure may have been the product of an estimate by the officer having regard to his observations of the accused on the night in question.

[23] During the course of his submissions, Mr. Gayne, on behalf of the Crown, candidly conceded that there is no reliable evidence of Mr. Jordaan's weight before the court.

III. Issues and the Law

[24] As a preliminary matter, I wish to address an issue raised by Mr. Jordaan towards the end of the Crown's case. Mr. Starkman on his client's behalf objected to the admissibility of evidence of his client's weight on the basis that it was obtained in violation of his rights under the Charter, particularly his right against self-incrimination and his right to counsel. In my respectful view, this argument can be addressed on a summary basis. Assuming for the sake of argument that the Crown relies upon evidence of Mr. Jordaan's weight to make out its case, in my respectful view there is an insufficient evidentiary foundation before me to conclude, on a balance of probabilities, that the impugned evidence was obtained from Mr. Jordaan on the night in question, let alone as a result of a violation. The testimony of P.C. Halagian is equivocal as to the source of information regarding Mr. Jordaan's recorded weight. The entry in the Record of Arrest may have been based on the officer's observations. It may have come from a police database. Accordingly, I have concluded that Mr. Jordaan's application to exclude evidence of his weight under § 24(2) of the Charter is without merit.

[25] In any event, as noted above, Mr. Gayne, on behalf of the Crown has already conceded that there is no admissible evidence of Mr. Jordaan's weight before the court for its consideration.

[26] I will now move on to the main arguments advanced by the defence.

[27] In essence, Mr. Starkman, on behalf of Mr. Jordaan, takes the position that the Crown has failed to prove the factual assumptions underlying Ms. Chow's opinion as to the Mr. Jordaan's projected blood-alcohol concentration at the time of driving. For example, he contends that the Crown has not proven an absence of bolus drinking, or that the Intoxilyzer 5000C readings generated at the time of testing are reliable. In the latter regard, he contends that the Crown has failed to prove that Mr. Jordaan has a rate of elimination between 10 and 20 milligrams of alcohol / 100 mL of blood / hr., and that he has a blood to breath ratio of 2100:1. Put another way, he points out that that the Crown has failed to disprove that Mr. Jordaan falls outside of the parameters of the aforementioned assumptions.

[28] The resolution of the issues raised by the defence requires a clear understanding of the difference between evidentiary and persuasive burdens of proof. I have reviewed a number of authorities on this topic. They stand for the following principles or make the following points:

(1) The term "persuasive (legal) burden" means that a party has an obligation to prove or disprove a fact or issue to the criminal or civil standard. In a criminal case, that burden is proof beyond a reasonable doubt and it rests with the Crown. (See: Sopinka, Lederman & Bryant, The Law of Evidence, 3d Ed. at § 3.7);

(2) The term, "evidential burden" means that a party has the responsibility to insure that there is sufficient evidence of the existence or non-existence of a fact or of an issue on the record to pass the threshold test for that particular fact or issue. It can be discharged by the production of evidence that falls short of proof. (See: Sopinka, Lederman & Bryant, The Law of Evidence, 3d Ed., at § 3.7);

(3) In criminal cases, the persuasive burden normally rests with the Crown. However, the evidential burden is "distributed between the parties". A party who bears an evidentiary burden is at risk of an adverse ruling for failing to meet the threshold test for a particular fact in issue. (See: Sopinka, Lederman & Bryant, The Law of Evidence, 3d Ed., at § 3.7-3.8);

(4) The significance of the evidential burden arises when there is a question as to which party has the obligation to adduce evidence in relation to a material issue before the court for consideration;

(5) Normally the incidence of the evidential burden coincides with the legal burden of proof. However, the evidential and persuasive burdens do not always coexist. The following excerpt from The Law of Evidence, 3d Ed., is apt:

…In criminal cases, the Crown normally has the persuasive burden with respect to all elements of the offence, subject to a constitutionally valid common law rule or a statutory provision allocating the onus of proof to the accused. If the accused wishes to raise a defence which does not simply constitute a denial of an element of the offence, an evidential burden is imposed on the accused. For example, if the accused wishes the jury to consider the defence of a mistaken belief in consent for the crime of sexual assault, the criminal law allocates an evidential burden to the accused to adduce a factual basis for this defence…Once the accused has discharged this evidential burden, the Crown has the persuasive burden to negative the defence of mistaken belief in consent, that is, to disprove the existence of his state of mind. The respective allocation of the evidential burden and the persuasive burden to the accused and the Crown in relation to this defence underlines the need to distinguish between the burdens and to discriminate as to which issues they apply. [emphasis added] (See: Sopinka, Lederman & Bryant, The Law of Evidence, 3d Ed., at § 3.19, 3.21).

(6) In his text, Watt's Manual of Criminal Evidence 2012 Ed., Watt J.A. also outlines the circumstances under which the evidentiary burden shifts to the defence:

In general terms, P bears the legal burden of proving the essential elements of the offence charged. It is incumbent on P to establish the facts essential to the proof of its allegation of crime. Preliminary to the trier of fact deciding whether P has met the legal burden of proof, however, P is required to satisfy the evidential burden in respect of the same issues. Satisfaction of the evidential burden requires the judge to submit the case to the trier of fact to determine whether the legal burden has been met.

In matters of defence, justification, or excuse, D bears the evidential burden. There must be evidence that is apt to convey a sense of reality to the defence, justification, or excuse to entitle D to have it considered by the trier of fact. Where D meets the evidential threshold, the legal burden is upon P to negate the applicability of the defence, justification or excuse… [emphasis in the original] (See: David Watt, Watt's Manual of Criminal Evidence 2012 Ed. at p. 172, § 16.02);

(7) The shifting distribution of evidentiary burdens is consistent with policy, fairness and probability. It is unlikely that the Crown could anticipate all possible defences that could be advanced by an accused and, thus, it would be unfair to require it in its case in chief to lead evidence to negate all such defences. Even if it could anticipate them, it would result in an inefficient use of the court's time to receive evidence that, as it turns out, is unrelated to the merits of the case. (See: Sopinka, Lederman & Bryant, The Law of Evidence, 3d Ed., at § 3.86); and

(8) Presumptions are merely legal or evidentiary shortcuts designed to bridge difficult evidentiary gaps. They are rebuttable by leading "evidence to the contrary". (See: R. v. St. Pierre, [1995] S.C.J. No. 23 at ¶ 23). When the Crown is disentitled to the benefit of a statutory presumption, it must meet all of the evidentiary and legal burdens of proof that would be imposed in the absence of the availability of that presumption.

[29] The primary focus of Mr. Jordaan's complaint is that the Crown has not met its persuasive burden in relation to Ms. Chow's assumption that Mr. Jordaan did not consume large quantities of alcohol beverages within approximately 15 minutes prior to the time of the impugned driving and I will now address that issue.

[30] The case law has come to refer to this assumption as an absence of "bolus drinking". Bolus drinking operates as a defence to a charge of driving "over 80". This was aptly explained in R. v. Hall, 2007 ONCA 8, [2007] O.J. No. 49 (C.A.) at ¶ 15 where the court stated:

At trial the defence sought to invalidate Dr. Buczek's opinion by demonstrating that the appellant consumed a large quantity of alcohol five minutes before the accident. Thus, at the time of the accident, the alcohol the appellant had consumed five minutes earlier may not yet have been absorbed into his bloodstream. Therefore, although his blood-alcohol (sic) exceeded the legal limit later, it may not have been over 80 at the time of the accident.

[31] The appellate authorities have defined bolus drinking in a number of ways. It has been described as:

(1) an "unusual drinking pattern" (See: R. v. Grosse, [1996] O.J. No. 1840 (C.A.) at ¶ 15);

(2) a drinking pattern that is not at a "normal pace" (See: R. v. Hall, supra, at ¶ 20; R. v. Simard, [2009] O.J. No. 4854 (Sup. Ct.) at ¶ 43);

(3) a "large quantity of alcohol shortly before driving" (See: R. v. Bulman, 2007 ONCA 169, [2007] O.J. No. 913 (C.A.) at ¶ 13);

(4) an "abnormal" drinking pattern" (See: R. v. Bulman, supra, at ¶ 14);

(5) the "immediate consumption of alcohol just prior to the time of the impugned driving (See: R. v. Simard, supra, at ¶ 10);

(6) the consumption of "large quantities of alcohol immediately or shortly before driving" (See: R. v. Paszczenko; R. v. Lima, 2010 ONCA 615, [2010] O.J. No. 3974 (C.A.) at ¶ 27); and

(7) a drinking pattern shortly before driving that is "inherently unlikely" (See: R. v. Grosse, supra, at ¶ 15);

[32] The definitions of bolus drinking, as articulated in the case law, are, arguably, problematic because the terms, "large", "unusual", and "abnormal" are highly subjective and lack any meaningful degree of precision. Indeed, scenarios regarded as "bolus drinking" have varied. I note, by way of example, that in R. v. Grosse, supra, at ¶ 4 and 15, the Ontario Court of Appeal held that a drinking scenario involving the consumption of six beers within 30 minutes amounted to evidence of bolus drinking. By contrast, in R. v. Hall, supra, at ¶ 18 and 20, the defence attempted to argue that the consumption of "half a glass of beer" within ten minutes prior to the impugned driving amounted to bolus drinking. In this regard, it is noteworthy that Ms. Chow testified that when she referred in her assumption to "large" quantities of alcoholic beverages, there was no scientific significance to the term, "large". The term is utilized so as not to imply that a sip of alcohol would impact the calculation. In Ms. Chow's opinion, the amount ingested must simply be a sufficient volume to change the projected blood-alcohol concentration.

[33] In my respectful view, it is perhaps simpler to approach the concept of "bolus drinking" as a drinking scenario involving a quantity of alcohol ingested within 15 to 30 minutes prior to the impugned driving that, if true, is capable of supporting the inference that that the accused's blood-alcohol concentration at the time of driving is below the legal limit, notwithstanding that, at the time of testing, it is above the legal limit. In assessing whether the Crown has proven the absence of bolus drinking, the trier of fact may consider the inherent likelihood of the scenario, having regard to common sense and common knowledge about how people behave.

[34] Where do the burdens of proof lie regarding the absence bolus drinking? The Ontario Court of Appeal in R. v. Paszczenko; R. v. Lima, supra, has expressly clarified that (1) the Crown bears the persuasive burden to prove the absence of bolus drinking; (2) the Crown it is entitled to rely upon the common sense inference that people do not normally ingest large amounts of alcohol just prior to, or while, driving; and (3) the defence bears a practical evidentiary burden to put bolus drinking in play before the trier of fact:

There can be no dispute that the onus is on the Crown to prove the facts underlying the expert's report, including the assumptions upon which the expert relies…

In establishing that an accused has not engaged in bolus drinking, the Crown is in the unenviable position of having to prove a negative. But how does it meet that onus in circumstances where – as is likely in many cases – it has no statement or evidence from the accused as to his or her drinking pattern at the relevant time and no other witnesses or evidence to shed any light on that issue? That is the dilemma posed, principally, by the Lima appeal.

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 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, 2007 ONCA 169. As noted above, bolus drinking has been said to be a "relatively rare" phenomenon: Phillips, at pp. 158-162. "No bolus drinking" is therefore largely a matter of common knowledge and common sense about how people behave.

I would frame the rationale for this approach as the imposition of a practical evidentiary burden on the accused, not to persuade or convince the trier of fact that there was bolus drinking involved, but to point to something in the evidence (either in the Crown's case, or in evidence led by the defence) that at least puts the possibility that the accused had engaged in bolus drinking in play. The imposition of a practical evidentiary burden to come forward with evidence is simply another way of explaining the invitation to draw a common sense inference which puts the accused in essentially the same spot if he or she cannot point to some evidence to overcome either hurdle.

…Here, the effect of the evidentiary shift is not to require the accused to convince the trier of fact of anything, but simply to be able to point to some evidence on the basis of which it can be said the issue of bolus drinking is alive on the record.

For the reasons explained above, applying the common sense inference where there is no evidence of bolus drinking in circumstances where the Crown is required to prove the negative (i.e., no bolus drinking) is simply an example of the Schwartz notion of an evidential burden, in my view. It does not involve attaching an onus of proof to the accused or the creation of a presumption or deeming provision in the sense forbidden in Grosse. On that basis, it would be more straightforward, it seems to me, to refer to this evidentiary exercise as a shift in the practical evidentiary burden on the basis of which – absent something to put bolus drinking in play – an inference may (but not must) be drawn.

(R. v. Paszczenko; R. v. Lima, supra, at ¶ 21, 28–29, 32, 34, 37)

[35] The Crown can rely on direct evidence to prove the absence of bolus drinking. For example, it could tender an admissible out-of-court utterance by the accused as to what he or she had to drink and when. However, as noted above, the availability of such evidence will be rare. The Crown can also rely on circumstantial evidence to prove the absence of bolus drinking. The appellate authorities have identified a number of examples of evidence capable of supporting such an inference:

(1) Evidence of a lack of opportunity:

A. Evidence that no empty or partially-consumed bottles of alcohol were located in the accused's vehicle shortly after the impugned driving (See: R. v. Grosse, supra, at ¶ 15; R. v. Paszczenko; R. v. Lima, supra, at ¶ 38);

B. Evidence that the accused was not seen leaving an establishment licensed to sell alcohol or some other location where alcohol is readily available (See: R. v. Grosse, supra, at ¶ 15; R. v. Paszczenko; R. v. Lima, supra, at ¶ 38); and/or

(2) Evidence of intoxication within minutes of the impugned driving which, necessarily, is inconsistent with recent ingestion of alcohol not yet absorbed into the bloodstream (See: R. v. Bulman, supra, at ¶ 15), including:

A. Unexplained unusual driving or a collision (See: R. v. Paszczenko; R. v. Lima, supra, at ¶ 5, 38); and/or

B. a (strong) odour of alcohol, in combination with other indicia of intoxication (See: R. v. Paszczenko; R. v. Lima, supra, at 5, ¶ 11); and/or

C. bloodshot and glassy eyes (See: R. v. Paszczenko; R. v. Lima, supra, at ¶ 5, 11); and/or

D. (slightly) slurred speech (See: R. v. Paszczenko; R. v. Lima, supra, at ¶ 5, 11); and/or

E. unsteadiness on the feet (See: R. v. Paszczenko; R. v. Lima, supra, at ¶ 5); and/or

F. No post-arrest increase in the symptoms of indicia (See: R. v. Paszczenko; R. v. Lima, supra, at ¶ 38); and/or

(3) Any (as there may be more than one) hypothetical pre-driving drinking scenario consistent with bolus drinking that, having regard to the application of common sense, is, inherently unlikely (See: R. v. Grosse, supra; R. v. Bulman, supra; and R. v. Simard, supra).

[36] The Crown need not tender evidence of all the aforementioned factors. It simply needs to tender sufficient evidence such that, at the end of the case, the trier of fact is satisfied, beyond a reasonable doubt, as to the absence of bolus drinking. In particular, in my respectful view, the Crown is not obliged to tender evidence, through a toxicologist, of a hypothetical pre-driving drinking scenario consistent with bolus drinking, and then establish that it is inherently unlikely, in order to prove an absence of bolus drinking. The Ontario Court of Appeal in R. v. Paszczenko; R. v. Lima, supra, where no such evidence was relied upon and the convictions were upheld, concluded as much:

Mr. Zoppi argues that the report fails to define what "rapid consumption" or "shortly before" means or what quantity of alcohol would have to be consumed in what period of time to constitute "large quantities" and thereby establish bolus drinking. Some judges in the lower courts – including the SCAJ in Paszczenko – have expressed similar reservations: see, for example, Lin. There may be cases where more precision with respect to these concepts becomes necessary. Suppose, for example there was evidence that an accused had consumed 3 bottles of beer in the space of 20 minutes before the incident. Would that constitute bolus drinking? On the other hand, in Grosse, the evidence was that, in general a person would have to consume the equivalent of 6 beers or 9 oz. of alcohol for bolus drinking to be a factor.

But judges are capable of understanding, in broad terms, what "rapid" consumption, "shortly before" and "large" quantities entail. There is nothing on the record in either the Lima or the Paszczenko case to suggest any consumption of alcohol in the period prior to the respective incidents, much less "rapid" consumption of "large" quantities. The lack of precision is therefore of little moment in these proceedings. [emphasis added] (See: R. v. Paszczenko; R. v. Lima, supra, at ¶ 57).

[37] What the Court of Appeal in R. v. Paszczenko; R. v. Lima, supra, appears to be indicating is that, for all intents and purposes, any (as there may be more than one) hypothetical pre-driving drinking scenario consistent with bolus drinking conveyed through a toxicologist becomes relevant once an accused points to evidence of his or her pre-driving drinking chronology, tendered by the Crown or the defence, in an effort to put into play the issue of bolus driving. [1] Of course, as clearly set out above, this is not the only way that the defence can put the issue of bolus drinking in play. It can also point to circumstantial evidence led by the Crown (or an absence of evidence) that lends an air of reality to the presence of bolus drinking. However, if the accused undertakes this latter approach to the issue of bolus drinking, evidence of the aforementioned hypothetical is less relevant, if not irrelevant.

[38] In order to put the issue of bolus drinking in play, Mr. Starkman points only to evidence that Mr. Jordaan had a strong odour of alcohol on his breath when the officer detained him. He argues that the strong odour of alcohol is evidence of recent consumption. I agree that such evidence is capable of supporting the inference of recent consumption of consumption. However, at no time did Ms. Chow indicate that an odour of alcohol, standing alone, was an indicator as to the volume of consumption. Accordingly, standing on its own, this indicia is logically incapable of supporting the inference of bolus drinking.

[39] Has the Crown proven, on the strength of the evidence before me, the absence of the bolus drinking? I have concluded that it has.

[40] There is no reliable evidence of any hypothetical pre-driving drinking scenario consistent with bolus drinking (as I have defined that concept in ¶ 33, supra) that has been placed before the court in relation to Mr. Jordaan. The hypothetical tendered through Ms. Chow is premised on an assumption that the subject in question weighs 100 kg. There is no evidence before this court that Mr. Jordaan weighed 100 kg. Accordingly, I am not in a position to consider whether such a scenario is inherently unreliable and, thus evidence of the absence of bolus drinking, as was done by the trial judge in R. v. Grosse, supra. In any event, the more recent decision in Ontario Court of Appeal in R. v. Paszczenko; R. v. Lima, supra, appears to have narrowed the relevance of such hypotheticals to those situations where there is evidence before the court of the accused's drinking chronology shortly before driving to which the defence points as some evidence on the basis of which it can be said the issue of bolus drinking is alive on the record. There is no such evidence in the record before me in this case.

[41] I am, however, of the view that there is ample other evidence that, taken together, supports the inference of an absence of bolus drinking. In this regard, I rely upon the following constellation of factors:

(1) There is no evidence before the court that the arresting officers located empty or partially-consumed bottles of alcohol in Mr. Jordaan's car following his detention;

(2) There is no evidence before the court that Mr. Jordaan was seen leaving an establishment licensed to sell alcohol or some other location where alcohol is readily available;

(3) Immediately upon his detention, Mr. Jordaan evinced indicia which, taken together, was consistent with intoxication, namely, a strong odour of alcohol on his breath, red and glossy eyes, and slurred speech; and

(4) There is no evidence before the court that Mr. Jordaan's indicia of intoxication increased over time, following his initial detention.

[42] I will now turn to the remaining issue. Mr. Starkman does not appear to be contesting the validity of the assumptions that the average person has a blood to breath ratio of 2300:1, that the Intoxilyzer 5000C is calibrated to apply a ratio of 2100:1 during its breath analysis, or that the average person eliminates alcohol from his or her system at a rate of somewhere between 10 and 20 milligrams of alcohol / 100 millitres of blood / hr. Thus, he has not mounted the type of "challenge to the expert" contemplated in R. v. Paszczenko; R. v. Lima, supra, at ¶ 45. What he is arguing is that without the benefit of the presumption of accuracy set out in ¶ 258(1)(g) of the Criminal Code, the Crown must prove, as part of its case in chief, that Mr. Jordaan falls within the parameters established by these assumptions or, put another way, does not fall beyond their parameters.

[43] To take this argument to its logical extension, the defence would have the Crown tender as part of its case evidence that Mr. Jordaan falls within the parameters (or does not fall beyond them) of every assumption underlying Ms. Choi's opinion, regardless of whether there was any merit to the issue. It would be unfair and inefficient to require the Crown to pre-emptively negate all such possible defences arising from the underlying assumptions. This would be tantamount to imposing a positive obligation on the Crown, in every case of sexual assault, to lead evidence that an accused lacked on honest but mistaken belief in consent, or, in the case of an allegation of failing to comply with a term of qualified house arrest, to lead evidence that none of the exceptions to house arrest had application, as part of its case in chief.

[44] In my respectful view, the defence has confused the applicable persuasive and evidentiary burdens. If the defence can point to any evidence that Mr. Jordaan does not fall within the parameters of any given assumption, then, and only then, does the Crown bear a burden to prove the contrary. To borrow the language of Watt J.A. from his Manual of Criminal Evidence, Mr. Jordaan must point to evidence "that is apt to convey a sense of reality to the defence" that any given assumption underlying Ms. Chow's opinion is inapplicable in the circumstances of his case. Once this has occurred, the legal burden is on the Crown to negate the applicability of the defence.

[45] In the instant case, there is no air of reality to the suggestion that Mr. Jordaan falls outside of the parameters of the assumptions regarding the rate of elimination of alcohol from the bloodstream or the blood to breath ratio. There is neither direct, nor circumstantial evidence before this court which puts that issue into play. Just because "some" people fall beyond the parameters of the assumptions, it does not logically follow that that serves as some evidence that Mr. Jordaan, in particular, falls beyond the parameters.

IV. Conclusion

[46] I have evidence before me that suggests that the approved instrument was in proper working order at the time of testing, and was properly operated by a qualified breath technician. Ms. Chow's review of the relevant documentation, together with the DVD recording of the testing process, raised no concerns, in her professional opinion, as to the reliability of the results generated. In my respectful view, the Crown has proven that Ms. Chow was entitled to rely on the approved instrument test results as a reliable indication of Mr. Jordaan's blood-alcohol concentration at the time of testing. I am further satisfied that all other assumptions underlying Ms. Chow's opinion as to Mr. Jordaan's blood-alcohol concentration at the time of driving have been proven beyond a reasonable doubt. Accordingly, I find as a fact that at the time of driving, Mr. Jordaan had a blood-alcohol concentration in the range of 100 to 135 milligrams of alcohol in 100 millilitres of blood. On the strength of this finding of fact, I find Mr. Jordaan guilty of the offence of operating a motor vehicle with a blood-alcohol concentration in excess of the legal limit.

Released: March 20, 2014

Signed: "Justice A. Tuck-Jackson"

Footnote

[1] It would appear that, in this regard, the appellate decision in R. v. Isleifson, [1986] O.J. No. 772 (Supr. Ct.) is no longer good authority and has been overtaken by the reasoning in R. v. Paszczenko; R. v. Lima, supra.