Court File and Parties

Date: January 16, 2015

Court File No.: 13-8960

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Meharpan Hundal

Before: Justice Paul F. Monahan

Heard on: December 8 and 9, 2014

Reasons Released on: January 16, 2015

Counsel:

Ms. A. Lepchuk for the Crown

Mr. B. Starkman for the defendant Meharpan Hundal

MONAHAN J.:

INTRODUCTION

[1] Meharpan Hundal is charged that on or about September 12, 2013 that he did operate a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Criminal Code of Canada (the "Code") (the "over 80" charge). He is also charged that he did operate a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(a) of the Code. Further, he is charged that he did operate a motor vehicle on a street or road or highway or public place in a manner that was dangerous to the public contrary to section 249(1)(a) of the Code.

[2] The breath samples taken by the police were taken more than two hours after the alleged offence and therefore the presumption of identity in s.258(1)(c) of the Code does not apply. A toxicologist was called by the Crown at trial to give expert testimony. The principal issue on the over 80 charge related to whether the Crown had proved the toxicologist's assumption that there had been "no significant consumption of alcohol" just prior to or during the time frame of interest. As part of this issue, it is necessary to consider whether the absence of evidence as to the accused's weight prevents this assumption from being proved.

[3] The principal issue on the impaired driving charge was whether the Crown had proven beyond a reasonable doubt that Mr. Hundal's ability to operate a motor vehicle was impaired by alcohol. The principal issue on the dangerous driving charge was whether the Crown had proven beyond a reasonable doubt that Mr. Hundal exhibited a marked departure from the standard of care that a reasonable person would have observed in the circumstances.

[4] There were no Charter issues raised. The Crown called five witnesses, including the toxicologist and the defence called no evidence.

FACTS

[5] The facts as I have found them are as follows (to the extent that the facts are contested I will so indicate in the recitation of the facts and make my findings accordingly):

Officer Tom Laskowski

[6] Officer Tom Laskowski testified for the Crown. At the time of the events in question he was part of the Vice unit. On September 12, 2013, he was working the night shift with two colleagues, Constables Holder and McLennan.

[7] At 10:08 p.m. on September 12, 2013 Officer Tom Laskowski was travelling southbound on Nuffield in the City of Brampton. His vehicle was travelling at approximately 50 km per hour. He could not recall if it was he who was driving or whether it was one of his colleagues.

[8] A vehicle came up behind them at a high rate of speed and flashed its headlights (the "subject vehicle"). The subject vehicle attempted to pass Officer Laskowski's vehicle on the right and then suddenly passed it on the left. The police followed the subject vehicle for a short distance and it made a sharp turn onto Napanee Street and he parked it at 14 Napanee which appeared to be Mr. Hundal's destination.

[9] Officer Laskowski testified that prior to the arrival of the subject vehicle at 14 Napanee, his vehicle paced the subject vehicle and that it was travelling at 80 km per hour. The subject vehicle made a sharp left turn onto Napanee. The officer did not know the posted speed limit but stated that he did not think it was 80 km per hour.

[10] Officer Laskowski said that he thought the passing by the subject vehicle of Officer Laskowski's vehicle was unsafe and he was concerned about the speed of the subject vehicle.

[11] The subject vehicle arrived at 14 Napanee at 10:10 p.m. and the police began to interact with Mr. Hundal at that time. Officer Laskowski saw Mr. Hundal exit the subject vehicle. He said that Constable Holder spoke to Mr. Hundal first.

[12] Officer Laskowski observed that Mr. Hundal had slurred speech in his conversation with Constable Holder. He also noted that his eyes were glassy and that there was a strong, not faint, smell of alcohol emanating from his breath. He placed Mr. Hundal under arrest for impaired driving at approximately 10:10 p.m. and read him his rights to counsel. There was no issue at trial as to Officer Laskowski having reasonable and probable grounds for the arrest.

[13] The defence contested the evidence from Officer Laskowski that Mr. Hundal had slurred speech. In cross-examination, Officer Laskowski acknowledged that he could not recall the content of the conversation between Constable Holder and Mr. Hundal, nor could he recall the words Mr. Hundal used which Officer Laskowski thought were slurred.

[14] Defence counsel also pointed to the fact that no other police witness who subsequently came into contact with Mr. Hundal observed that his speech was slurred and in fact they generally observed that his speech was good or fair.

[15] I accept the evidence of Officer Laskowski that Mr. Hundal's speech was slurred when Officer Laskowski came into contact with him at approximately 10:10 p.m. Officer Laskowski was careful in his evidence to only testify to matters that he remembered either independently or with the assistance of his notes. As a member of the Vice squad it is apparent that he did not normally deal with alleged drinking and driving offences. He readily acknowledged the shortcomings in his memory. For example, he acknowledged that he could not remember if he was driving the police vehicle nor could he remember the posted speed limit. He further acknowledged that his memory of the events was limited. However, he was fair and clear in his evidence about the matters that he did recall and that included the slurred speech. The fact that other officers did not note any slurred speech is not conflicting evidence. Constable Deol (discussed below) noted that Mr. Hundal's speech was good but Constable Deol did not come on the scene until 10:53 p.m. and he did not take custody of Mr. Hundal until 11:02 p.m. Constable Darcy noted that Mr. Hundal's speech was fair but that was not until after midnight. Accordingly, there is no evidence that conflicts with Officer Laskowski's evidence that Mr. Hundal had slurred speech at 10:10 p.m. I accept that at 10:10 p.m., Mr. Hundal's speech was slurred, his eyes were glassy and there was the strong smell of alcohol on his breath.

Constable Dave Jordan

[16] He testified that he got a call from dispatch at 10:23 p.m. and he took custody of the accused from 10:33 to 11:02 p.m. and read him two cautions. Constable Jordan's custody of Mr. Hundal was brief and he transferred custody to Constable Deol, whose evidence is dealt with below. Constable Jordan dealt with the towing of the subject vehicle. He testified that Mr. Hundal smelled of alcohol but was not "fall down drunk". He had no entry in his notes concerning these points and therefore I place no reliance on his evidence as concerns impairment.

Constable Satinderbir Deol

[17] Constable Deol arrived on the scene at 14 Napanee Street at 10:53 p.m. and took Mr. Hundal into his custody at 11:02 p.m.

[18] He testified that Mr. Hundal was swaying on the way to the police cruiser and that he detected the odour of alcohol on his breath. The swaying occurred when Mr. Hundal was standing still and when he was walking. He observed that Mr. Hundal's speech was good. Constable Deol concluded that Mr. Hundal was impaired by alcohol. His rights to counsel were read and a breath demand made. Ultimately, they arrived at the police station where a private conversation occurred between Mr. Hundal and duty counsel.

[19] At 12:05 a.m., Constable Deol transferred custody of Mr. Hundal to the breath technician, Constable Darcy. The custody of Mr. Hundal was transferred back to Constable Deol at 12:37 a.m.

Constable Tyrus Darcy

[20] Constable Darcy is a qualified breath technician. He obtained two breath samples from Mr. Hundal: the first was at 12:11 a.m. which registered 110 mg of alcohol in 100 mL of blood and the second was at 12:34 a.m. which registered 112 mg of alcohol in 100 mL of blood.

[21] Constable Darcy detected an alcoholic smell on Mr. Hundal's breath and noted that he had watery eyes. Mr. Hundal's speech was fair and there was nothing of note regarding his walking.

Dr. Michael Corbett

[22] Dr. Corbett was called by the Crown and was qualified as an expert witness in forensic toxicology. His report was marked as Exhibit 6 at trial and the Crown had very few questions in-chief of Dr. Corbett with the Crown choosing instead to rely upon Dr. Corbett's written report.

[23] In his report, Dr. Corbett opined that between approximately 10 p.m. and 10:10 p.m. on September 12, 2013, Mr. Hundal's projected blood alcohol concentration (BAC) was between 114 to 161 mg of alcohol in 100 mL of blood.

[24] In arriving at his opinion, Dr. Corbett made four assumptions as follows:

1. No significant consumption of alcohol just prior to the time frame of interest from approximately 10 p.m. to 10:10 p.m. on September 12, 2013, and/or during that time frame;

2. No consumption of alcohol in the time frame from after the time frame of interest to the time of the Intoxilyzer 8000 C subject test result;

3. A rate of elimination of alcohol of 10 to 20 mg/100 mL/hour; and

4. Allowance of a plateau for (i) the time frame from the Intoxilyzer 8000 C subject test to the time frame of interest, or (ii) two hours, whichever is less, using the lower rate of elimination of alcohol.

[25] In his report, Dr. Corbett also noted that Mr. Hundal was 32 years of age, weighed 176 pounds and was 5'10". There was no evidence tendered by the Crown that Mr. Hundal actually bore these characteristics and, specifically, no evidence of his weight.

[26] Dr. Corbett opined in his report that a person having the assumed characteristics (including the 176 pounds) would have to drink two theoretical drinks either immediately before or during the time frame of interest to have a BAC of only 80 mg during the time frame of interest but to have BAC readings of 114 mg and 112 mg at 12:11 AM and 12:34 AM. A theoretical drink was defined as 12 ounces of beer, 5 ounces of wine or 1.5 ounces of liquor.

[27] In cross-examination, Dr. Corbett indicated that the 2.1 theoretical drinks would vary according to weight. If a person weighed 150 pounds, that person would only have to drink 1.8 theoretical drinks and if they weighed 125 pounds that person would on have to drink 1.5 theoretical drinks. If they weighed more than 175 pounds that person would have to drink more than 2.1 theoretical drinks.

[28] Given that Mr. Hundal's weight at the time of the offence is not in evidence, beyond being a matter of general interest, no reliance can be placed on Dr. Corbett's evidence regarding the number of theoretical drinks one would have to drink to have a BAC of only 80 mg during the time frame of interest but to have the BAC readings at 12:11 a.m. and 12:34 a.m.

[29] Dr. Corbett acknowledged in cross-examination that he does not use the phrase "no large consumption of alcohol" and prefers the words "no significant consumption of alcohol". He thinks that the word "large" is vague and he prefers "significant".

[30] Dr. Corbett was asked in cross-examination if at one point somebody is walking steadily and at another point they are not walking steadily whether that could be consistent with alcohol absorbing in the body, all other things being equal, and he said it possibly could be. However, he pointed out that the change in walking steadily could be attributed to a number of things and that there were a number of factors which affect steadiness on one's feet.

ISSUES

[31] The following three issues arise in this case.

Issue 1 – Has the Crown proved beyond a reasonable doubt that Mr. Hundal did operate a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code?

Issue 2 - Has the Crown proved beyond a reasonable doubt that Mr. Hundal did operate a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(a) of the Code?

Issue 3 - Has the Crown proved beyond a reasonable doubt that Mr. Hundal did operate a motor vehicle on a street or road or highway or public place in a manner that was dangerous to the public contrary to section 249(1)(a) of the Code?

[32] I will examine each issue in turn.

Issue 1 – Has the Crown proved beyond a reasonable doubt that Mr. Hundal did operate a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code?

[33] Where a party calls an expert, the party calling the expert bears the onus of proving the assumptions underlying an expert's opinion and absent proof of such assumptions, no weight can be given to an expert's opinion.

[34] The central issue on the over 80 charge issue was whether the Crown had proved the underlying assumption in Dr. Corbett's expert testimony that there had been "no significant consumption of alcohol just prior to the time frame of interest from approximately 10 p.m. to 10:10 p.m. on September 12, 2013 and/or during that time frame". This assumption, or one similar to it, is a common assumption in the expert evidence given by toxicologists in drinking and driving cases and is sometimes referred to as the "no bolus drinking" assumption. The leading case on the issue of the assumptions in an expert toxicologist's report in a drinking and driving case is the decision of the Ontario Court of Appeal in R v. Paszeczenko; R v. Lima which I will refer to simply as the Lima case.

[35] In the Lima case, the toxicologist's evidence was delivered by way of an expert's report without oral testimony. The expert report in the Lima case made the following four assumptions:

1. no rapid consumption of large quantities of alcoholic beverages shortly prior to the incident;

2. no consumption of alcoholic beverages after the incident and before the Intoxilyzer 5000 C test;

3. a rate of elimination of alcohol from the blood ranging from 10 to 20 mg of alcohol in 100 mL of blood per hour; and

4. allowance for a plateau of up to two hours when using the lower rate of alcohol elimination.

[36] The Court of Appeal in Lima held that the third and fourth assumptions (the rate of elimination and the plateau assumption) are matters which the expert can rely on without further proof as they fall within the expert's scientific knowledge.

[37] The first and second assumptions (which the Court in Lima referred to as the no bolus drinking assumption and the no post incident drinking assumption) require specific proof by the Crown.

[38] In the case at bar, the third and fourth assumptions in Dr. Corbett's report mirror the third and fourth assumptions in the Lima case. They do not require specific proof. Dr. Corbett's second assumption is substantially the same as the second assumption in Lima; namely no post-incident drinking. There is no evidence of post-incident drinking in this case so this assumption is proven. Accordingly, the last three assumptions of Dr. Corbett are proven. I note as well that defence counsel in the case at bar took no issue with the proof of these three assumptions.

[39] As indicated above, the issue in this case on the over 80 charge is whether Dr. Corbett's first assumption, namely that there was "no significant consumption of alcohol just prior to the time frame of interest from approximately 10 p.m.to 10:10 p.m. on September 12, 2013 and/or during that time frame", has been proven.

[40] In Lima, the Court of Appeal noted that, as concerns a similar assumption, the Crown is in the "unenviable position of having to prove a negative". The Court of Appeal stated that bolus drinking is a "relatively rare" phenomenon and that the "no bolus drinking" assumption is largely a matter of common knowledge and common sense as to help people behave. The Court of Appeal stated that the trial court can draw a "common sense inference of drinking at a normal pace" and that "people do not normally ingest large amounts of alcohol just prior to or while driving." The Court of Appeal in Lima stated that there is "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 that at least puts the possibility that the accused had engaged in bolus drinking in play." The Court of Appeal stated that absent something to put bolus drinking in play, the so-called common sense inference of no bolus drinking may, but not must, be drawn.

[41] In Lima, the Court of Appeal stated that the common sense inference of no bolus drinking was available to the trial judge in light of a number of factors in that case, including that the accused was stopped while driving his vehicle in an unusual fashion; he exhibited signs of driving while intoxicated (the smell of alcohol on his breath with red, bloodshot and glassy eyes and a flushed face); the inference that there was no alcohol in the accused's vehicle; there was no evidence that the accused had just come from an establishment serving alcoholic beverages; and no change in the indicia of alcohol consumption post arrest. The Court of Appeal emphasized that one would not expect to see indicia of intoxication at the time the accused was pulled over if there was bolus drinking such that the accused was at or "under 80" at the time he was pulled over but "over 80" later on when the tests were done.

[42] In the case at bar, the defence essentially makes two arguments as concerns the first assumption in Dr. Corbett's report. First, the defence argues that there should be no "practical evidentiary burden" imposed on Mr. Hundal as the defence argues that the Court in Lima only imposed that burden because it was dealing with an assumption of no rapid consumption of "large quantities" of alcohol and that the assumption in the case at bar in Dr. Corbett's report is different namely an assumption of no "significant" consumption of alcohol.

[43] I reject this submission. In my view, the assumption of no "significant" consumption of alcohol in Dr. Corbett's report is synonymous with the assumption of no consumption of "large quantities" of alcohol in the expert report considered by the Court of Appeal in Lima. The term "large quantities" of alcohol in Lima was not a defined amount or range. The same is true of the term "bolus drinking" used in Lima. In fact, the Court of Appeal in Lima explained the concept of bolus drinking by reference to cases which involved a wide range of different volumes of the rapid consumption of alcohol with one case referring to the unlikely possibility of 9 ounces of alcohol being consumed in 30 minutes and another case referring to a half a glass of beer allegedly being consumed quickly before leaving a restaurant. The assumption of no consumption of large quantities of alcohol in Lima is really an assumption that people consume alcohol at a "normal pace" over time and don't usually drink while they are actually driving. In other words, regardless of the amount of alcohol consumed which leads to an over 80 reading, the Court can draw the common sense inference that the consumption of the alcohol was spread out over time rather than a significant part of it being consumed quickly just before or during the time frame of interest when the accused was driving. In order to avoid this inference from potentially being drawn, it is up to the accused to successfully point to evidence to support the possibility that such an assumption is incorrect.

[44] In the case at bar, the position is the same as in Lima. The assumption of no significant consumption of alcohol does not refer to a specific amount of alcohol but does assume a normal pacing in the consumption of alcohol and assumes no material drinking while the accused is actually driving. The reason behind the imposition of the practical evidentiary burden in Lima applies equally in the case at bar. Accordingly, it is fair and appropriate that the Court impose a practical evidentiary burden on the accused to point to something in the evidence that at least puts the possibility that the accused has engaged in a significant consumption of alcohol during the time frame of interest or just prior.

[45] The second argument of the defence is in the alternative and assumes that the practical evidentiary burden is imposed on Mr. Hundal. Pursuant to this submission, the defence seeks to point to evidence which it argues supports the possibility of bolus drinking. In this regard, the defence submits that the evidence of slurred speech given by Officer Laskowski should be disregarded because it is inconsistent with the evidence of subsequent police witnesses and what the defence says is the poor memory of Officer Laskowski generally. As part of this argument, the defence points to the evidence of Constable Deol that by about 11 p.m. (about an hour after Mr. Hundal was pulled over), Mr. Hundal was unstable on his feet, which the defence suggests raises the possibility of bolus drinking.

[46] In further support of the possibility of the significant consumption of alcohol during the time frame of interest or just prior, the defence also points to Officer Laskowski's evidence that there was a strong smell of alcohol on Mr. Hundal's breath. The defence relies on the observation by the Ontario Court of Appeal in R v. Grosse that the absence of a strong odour of alcohol suggested in that case that there had been no bolus drinking.

[47] I am not satisfied that the defence has pointed to any evidence that raises the possibility of bolus drinking or the significant consumption of alcohol during the time frame of interest or just prior. I have already indicated that I accept Officer Laskowski's evidence that Mr. Hundal was slurring his words when he first came in contact with him shortly after 10 p.m. Moreover, the slurring of the words should not be looked at in isolation. Officer Laskowski also observed that Mr. Hundal had a strong smell of alcohol on his breath and had glassy eyes. He made no observations one way or the other as to whether Mr. Hundal was steady on his feet.

[48] In my view, the evidence is clear that Mr. Hundal exhibited continuous signs of impairment from the moment he was pulled over through to the time he gave his breath samples.

[49] I also do not accept the defence submission that the Court of Appeal decision's in Grosse stands for the proposition that the presence of strong odour of alcohol raises the prospect of bolus drinking. If that was the case, the possibility of bolus drinking would be raised in most drinking and driving cases.

[50] The defence also points out that there is no evidence of Mr. Hundal's weight and that as a result, the Court ought not to draw the common sense inference of "no significant consumption of alcohol" during the time frame of interest or just prior. In this regard, the defence points out that Dr. Corbett supports his "no significant consumption of alcohol" assumption by making observations in his report about the number of theoretical drinks a 176 pound man would have to drink just prior or during the time frame of interest in order to be at or under 80 at the time frame of interest but to give rise to the breath readings obtained more than two hours later.

[51] While I consider that this argument has some merit in the sense that the term "significant" has no precise meaning in the absence of a consideration of a person's weight, I ultimately find that the Court of Appeal's decision in Lima governs. I have reviewed the Court of Appeal's decision in Lima and the two lower court decisions in that case (the decisions of the Superior Court of justice and Ontario Court of Justice). It is clear that there was no evidence of the weight of the accused in Lima and notwithstanding the absence of such evidence the Court of Appeal still approved of the drawing of the common sense inference of "no large quantities of alcohol" being consumed immediately prior to the time frame of interest in that case. As indicated earlier, the Court of Appeal's approval of the drawing of this inference is really an observation about the normal pacing of the consumption of alcohol and the point that people do not normally drink alcohol while they are actually driving.

[52] While it would be desirable to have the accused's weight and therefore give more specificity to the meaning of "significant", it is not necessary or required for the practical evidentiary burden to be imposed and the common sense inference to be drawn. Further, the absence of the proof of weight in this case does not raise a reasonable doubt as to the proof of Dr. Corbett's first assumption.

[53] In this case, considering the facts as a whole and in light of the failure of the defence to successfully point to any evidence that would raise the possibility of the significant consumption of alcohol during the time frame of interest (while the accused was driving) or just prior, this Court will draw the common sense inference that no such drinking occurred. This inference is entirely consistent with the continuous signs of impairment exhibited by Mr. Hundal from the time he was pulled over through to the time he gave his breath samples. I find that the assumption made by Dr. Corbett that there was no significant consumption of alcohol just prior to the time frame of interest and/or during that time frame of interest is proven in this case.

[54] As a result, I accept Dr. Corbett's opinion that Mr. Hundal had a blood-alcohol concentration of between 114 to 161 mg of alcohol per 100 mL of blood at the time he was pulled over on September 12, 2013. As a result there will be a finding of guilt on the over 80 charge.

Issue 2 - Has the Crown proved beyond a reasonable doubt that Mr. Hundal did operate a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(a) of the Code?

[55] Mr. Hundal is also charged that he operated a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(a) of the Code. In order to prove such a charge, it is not enough for the Crown to show that the accused exhibited signs of impairment by alcohol. The Crown must show that the accused's ability to operate a motor vehicle was impaired by alcohol. The evidence of impairment must only be any degree of impairment ranging from slight to great.

[56] In the case at bar, while I have found that Mr. Hundal exhibited signs of impairment from the moment he was pulled over, I am not satisfied that there is proof beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol. In this case, the driving, while not appropriate, does not demonstrate beyond a reasonable doubt that Mr. Hundal's ability to operate a motor vehicle was impaired by alcohol. His ability to operate the motor vehicle likely was impaired by alcohol but it has not been proven beyond a reasonable doubt.

Issue 3 - Has the Crown proved beyond a reasonable doubt that Mr. Hundal did operate a motor vehicle on a street or road or highway or public place in a manner that was dangerous to the public contrary to section 249(1)(a) of the Code?

[57] Mr. Hundal is further charged that he did operate a motor vehicle in a manner that was dangerous to the public contrary to s.249(1)(a) of the Code. In order to prove such a charge, the Crown must prove beyond a reasonable doubt that there was a "marked departure from the standard of care a reasonable person would observe in the circumstances."

[58] In the case at bar, the evidence from Officer Laskowski was that Mr. Hundal was speeding at 80 km/h, that he made a limited attempt to pass Officer Laskowski's vehicle on the right and thereafter passed him on the left. He also flashed his headlights at officer Laskowski's vehicle.

[59] As indicated earlier, there is no evidence as to the posted speed limit where Mr. Hundal was driving. Accordingly, while it seems likely that he was speeding, in the absence of evidence as to what the posted speed limit was it has not even been proven beyond a reasonable doubt that Mr. Hundal was speeding. While the limited attempt to pass on the right was certainly ill-advised, it does not amount to dangerous driving.

[60] In all the circumstances, I find that it has not been proved beyond a reasonable doubt that Mr. Hundal is guilty of the offence of dangerous driving contrary to Code.

CONCLUSION

[61] For the reasons set out above, I have found that the Crown has proven beyond a reasonable doubt that all of the elements of the over 80 offence have been proven and there will be a finding of guilt in this regard. I have further found that the charges of impaired driving and dangerous driving have not been proven beyond a reasonable doubt and there will be an acquittal on those charges.

Released: January 16, 2015

Justice Paul F. Monahan