Court Information

Ontario Court of Justice

Date: June 10, 2015

Court File No.: Central East - Newmarket 4911-998-13-03789-00

Parties

Between:

Her Majesty the Queen

— And —

Gordon Coutts

Before: Justice David S. Rose

Heard on: October 20, 2014 and May 15, 2015

Reasons for Judgment released on: June 10, 2015

Counsel

B. Jurianz and K. Stewart — counsel for the Crown

S. Price — counsel for the defendant G. Coutts

ROSE J.:

Overview

[1] Mr. Coutts is charged with Drive Over 80 on April 28, 2013. At his trial on this charge, Date, Identification and Jurisdiction were admitted by him. A Charter Application was filed at trial alleging infringements of section 10(b) of the Charter, but that Application was abandoned by Mr. Price during the trial. The evidence centered around the events of that day, namely April 28, 2013. The Issue at this trial is whether the Crown has proven beyond a reasonable doubt that Mr. Coutts' Blood Alcohol Content (BAC) at the time of driving was Over 80. This in turn requires an assessment of Mr. Coutts' evidence of his drinking pattern that day and what conclusions, if any, follow from that.

Evidence

[2] Mr. Alexander Stevens testified that he had dated Mr. Coutts for about a year, ending in about December of 2013. On April 28, 2013 he received a call from Mr. Coutts while he was on his way home. Mr. Coutts explained that someone hit his car in the parking lot of Canada's Wonderland, but that the car was still driveable. It was some time in the afternoon, but could have been in the early evening. Mr. Stevenson told Mr. Coutts to try to make his way over to his house to figure the situation out, but Mr. Coutts never arrived. The next time he saw him was when he picked Mr. Coutts up from the police station. Mr. Coutts explained to Mr. Stevenson that he had blown over the legal limit while driving, after being pulled over by a police officer. Mr. Stevenson did not receive a lot of details.

[3] PC Nethercott of the York Regional Police Force testified that he was on traffic enforcement duty about 7:11 p.m. that day, driving westbound across Wellington Street West in Aurora. He saw a car travelling eastbound on Wellington and could see immediately that the car's hood was bent up as if it had been involved in a collision. He was concerned that the driver of that car could not see properly over the engine hood. There was nothing about the manner of driving which would indicate to Nethercott that the driver was having difficulty seeing the roadway ahead.

[4] Nethercott stopped the vehicle at the entrance of a school just west of Haida Drive. The car in question was a white Chevy Cruze with two occupants. A woman, Jaclyn Reid, was in the front passenger seat. The driver was the accused. Nethercott considered the damage to the Cruze to be quite significant. He approached the vehicle and got close to Mr. Coutts' mouth area where he smelled an odour of an alcoholic beverage from his mouth. He asked Mr. Coutts about the damage to the car, and if he had been drinking alcohol that day. He was told that Mr. Coutts had one drink but this changed later to two drinks. The accused's speech was normal, and there was no fumbling when he produced his documents. Indeed, there were no physical signs of impairment noticed by PC Nethercott. Mr. Coutts said that he had left Canada's Wonderland and, when he went to his parked car, he discovered the damage. Nethercott, in his words, wasn't buying that story, and formed an opinion for an ASD demand, which he read at 19:16 hours. Nethercott was operating on the information that the last drink that Mr. Coutts had consumed was over 2 hours previous, and so at 19:20 the accused provided a suitable sample into an ASD, which resulted in a Fail reading. At 19:20 he arrested Mr. Coutts and placed him in handcuffs. Rights to counsel were read to him at 19:27, a caution at 19:31, and a Breath Demand at 19:31. Nethercott testified that he didn't believe Mr. Coutts when he said he had consumed only two drinks, and nothing to drink in the previous two hours.

[5] Nethercott looked in the Chevy Cruze, found some evidence of alcohol, and asked another officer to do an inventory. Nethercott believed that he saw some sealed alcohol and a receipt that he took with him but he didn't spend too long on the inventory search. He could not recall how many bottles of sealed alcohol he saw and didn't remember seeing any empty ones. His inventory search was, in his words, quick. He left the scene with Mr. Coutts at 19:54, arriving at 1 District at 20:07. It took until 20:39 to get into the booking area.

[6] Mr. Coutts was clear in his conversation with PC Nethercott that evening that he wanted to speak to his father's lawyer, and so Nethercott called Wally Coutts, the father of the accused, and explained that he needed the phone number for a lawyer. He received the phone number for Stephen Price, and called Mr. Price. At 21:25 Mr. Price spoke with the accused in the private phone room. That call ended at 21:29, and then Mr. Coutts was turned over to the Breath Technician, Constable Goodall. Nethercott received Mr. Coutts back from Goodall at 21:58. He received a certificate from Cst. Goodall too, which was marked as Exhibit 1. That document shows that at 21:34 the accused provided a first sample of breath into an Intoxilyzer, and a second one at 21:56. The BAC of both samples was recorded as being 160 mg of alcohol in 100 ml of blood.

[7] Cst. Goodall of YRPS testified that he conducted breath tests on Mr. Coutts on 28 April 2013, and that those tests generated standard test print outs, which were admitted at trial. He observed Mr. Coutts to be talkative and pleasant, with slight effects of alcohol.

[8] Buttressing the Crown Case is a March 25, 2014 Expert Report drafted by Daryl J. Mayers of the Centre of Forensic Science. That report opines that Mr. Coutts BAC at 7:11 p.m. on April 28, 2013 was between 160 and 205 mg. of alcohol in 100 ml. of blood. Dr. Mayers' report makes 4 assumptions:

1. A rate of elimination of alcohol from the blood ranging from 10 – 20 mg of alcohol in 100 millilitres of blood per hour (mg/100mL/hr).

2. Allowance for plateau of up to two hours.

3. No large consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident.

4. No consumption of alcoholic beverages after the incident and before the breath tests(s).

[9] The accused testified in his defence. He has worked for his father for 4 years, and weighs between 175 and 180 lbs. He is 6 feet, two and a half inches high.

[10] On the afternoon he was arrested he had been at Canada's Wonderland. At about 1 p.m. he met Ms. Reid in the parking lot of Canada's Wonderland and drank a Rockstar Vodka, which is a canned energy drink mixed with Vodka. It is 473 millilitres and has 6.9 % alcohol. After drinking that he went into the park and drank a bottle of regular beer at 3 o'clock. It was a Molson Canadian, in a 341 millilitre bottle with 5% alcohol by volume. That was in the beer garden of Wonderland. He had another Canadian of the same volume and alcohol content within an hour of the first beer. After leaving Canada's Wonderland he drank another Rockstar Vodka of the same size and alcohol content as the first. That was within 5 minutes of leaving the parking lot. He also mixed "Roadie" for the drive home, which was a combination of vodka and Pepsi in a Pepsi bottle. The Roadie had at least 9 – 10 ounces of 40% Vodka mixed with Pepsi. He drank the contents of the Roadie before getting pulled over by PC Nethercott. Mr. Coutts testified that he was drinking heavily back then.

[11] In cross-examination Mr. Coutts testified that the receipt found in the car was not his, but Jaclyn's from a purchase before she met him that day. He testified that he did not know the precise sizes and percentages of the drinks he consumed that day at the time, and only subsequently figured out what he drank and the alcohol percentages. The times he gave were also an approximation, and he could be off by a half hour either way. He was adamant, however, that he was walking to his car after his visit to Wonderland between 6:20 and 6:30.

[12] The vodka he used to mix the roadie was Stoli brand, from a 26 ounce bottle which already had some taken out of it before he mixed the roadie. The Roadie was the result of a "free pour", meaning that he re-created it coming up with 9 – 10 ounces, which he described as a conservative estimate, but the amount could have been 11 or 12 ounces.

[13] Mr. Coutts testified that Ms. Reid had been drinking too, and that she had agreed to accompany him to his ex-partners house and take a bus from there back to Toronto. He took back roads from Canada's Wonderland, but denied that he did that because he had been drinking. That route included gravel roads. At some point Mr. Coutts drove his car into a chain link fence which was crossing the road, which caused the damage to his car. He testified that he didn't see the chain link fence across the gravel road because he had been distracted by his GPS system. He was going about 60 km/hr when he hit the fence. He ultimately admitted that it was possible that he hit the fence because of the influence of his alcohol consumption.

[14] Mr. Coutts admitted that he called his friend Alex about what happened and in his first conversation told him that the accident happened at Wonderland, and not on a gravel side road. Mr. Coutts explained in Court that after hitting the fence he got out of his car, picked up the fence, put it off the car, got back in his car and turned it around. He then drove the car back onto the main strip. The fence was located about one kilometer from the main road. He testified that he was in "…a panic. In a Rush." He wasn't timing himself. Mr. Coutts explained to me that he used a hands free cell phone to call as he is on the road for business every day and has no choice but to drive safely, which is why he used a hands free device. The accident with the fence added anywhere from 3 – 6 minutes to his trip, but he wasn't keeping time on a watch. Nor was he paying attention to the exact location. Notwithstanding the damage to the front end of the Chevy Cruze, his view of the road was not impaired. Mr. Coutts testified that he knew exactly where he was going.

[15] Mr. Coutts testified about his consumption of the Roadie which he had mixed after leaving Canada's Wonderland. He wasn't sure with precision the rate of his consumption or when he finished the drink. He did agree that he had vastly more alcohol in the half hour of driving than he did in the whole rest of the day combined. When pressed about how long it took him to drink the roadie, he said that his best recollection was 28 – 30 minutes.

[16] Mr. Coutts' father Wallace testified that he picked up his son's vehicle after he was arrested. He cleaned it out and found a Pepsi bottle with "…a little bit of what looked like Pepsi in it." He didn't taste the remnants, but he smelled it, and "…it was obvious that there was alcohol content."

[17] On behalf of Mr. Coutts, Mr. Price called Dr. Michael Ward, who was admitted by the Crown to be an expert in the area of absorption, elimination, distribution of alcohol in the human body and the effects of alcohol on the human body. He was in Court to hear the evidence of the accused, and based his opinion on that evidence and the Intoxilyzer print outs, which showed breath readings recorded by the Intoxilyzer 8000C operated by PC Goodall at 21:34 of 160 mg of alcohol in 100 ml of blood, and the same reading at 21:56. Assuming those readings to be accurate, and assuming the evidence of Mr. Coutts to be true, Mr. Coutts BAC at 7:11 would be between 49 and 73 mg of alcohol in 100 ml of blood. That opinion was based on consumption of 9 fluid ounces of alcohol in the half hour previous to 7:11 pm. If the accused had consumed 10 oz of alcohol in that period his BAC would between 34 and 58 mg of alcohol in 100 ml of blood. Dr. Ward explained that the period prior to incident in which alcohol is consumed but has not moved into the system, should in his opinion be one half hour, as opposed to the 15 minute period posited by the Crown expert Dr. Mayers. He testified that the Centre of Forensic Sciences used that half hour period up until 5 or 6 years ago, when they switched to a 15 minute period. Dr. Ward's approach to this finds support in academic literature, namely an article "The Validity of Evidential Breath Alcohol Testing", by Brian Hodgson, Can Journal For. Science, Vol. 41 No. 2 (2008) pp. 83 – 96. It was put to Dr. Ward in cross-examination that reasonable toxicologists can disagree about the appropriate number to use, to which he agreed. Both the 15 minute period and the 30 minute period are forensically acceptable. In testimony he said that the 30 minute period before 7:11 p.m. was a black hole, when alcohol would be in Mr. Coutts' stomach, but not his blood.

[18] Dr. Ward opined that Mr. Coutts' BAC would still be under 80 at 7:11 p.m. if he had consumed the two Rockstar drinks and two beers before leaving the parking lot that day as he testified to. Mr. Juriansz cross-examined Dr. Ward about Mr. Coutts' BAC if Mr. Coutts had consumed his second Rockstar drink at 6:35, and not 6:30. That, he said, would increase his BAC by 2 milligrams per cent at 7:11 p.m. Similarly, if Mr. Coutts consumed 5 – 6 fluid ounces of alcohol in the half hour previous to 7:11 p.m. his BAC would be between 94 and 118 milligrams per cent at 7:11, rising to 160 at 9:34 p.m. Dr. Ward did not perform a rate of elimination study on Mr. Coutts, but used a standard acceptable rate of alcohol elimination from the body of between 10 – 20 milligrams of alcohol in 100 ml of blood. That is the same rate of elimination used by the Crown expert Dr. Mayers.

Issues

[19] The Crown cannot avail itself of the presumption of identity under s. 258 because the first breath sample taken from Mr. Coutts on April 28, 2013 was more than two hours from the time he was operating his motor vehicle. Therefore, the issue is whether the Crown has proven beyond a reasonable doubt that his BAC was Over 80 at 7:11 p.m. that day, when he was arrested on the charge. This requires an assessment of Mr. Coutts' evidence of bolus drinking on R. v. W. (D.), [1991] 1 S.C.R. 742 principles, and next the defence evidence as a whole.

Legal Principles

[20] There is a sufficiently large body of jurisprudence binding on me in this case that I need not engage in a lengthy analysis. Bolus drinking was considered in R. v. Grosse, [1996] O.J. No. 1840; 107 C.C.C. (3d) 97, where our Court of Appeal held that when the Crown sought to rely on an expert opinion in an excess blood alcohol driving case the assumptions founding that opinion must be proven beyond a reasonable doubt. As the Court said (at para. 10), "If the evidence to support that assumption did not exist then the opinion would have to be discarded".

[21] It is possible to observe that the 4 assumptions made by Dr. Mayers in the case at Bar are fairly common assumptions made in cases were a Crown expert is used in an Over 80 case. Those assumptions have been the subject of some litigation. In R. v. Paszczenko; R. v. Lima 2010 ONCA 615, the Court of Appeal recognized (at para. 22) that Dr. Mayers' assumptions #1 and #2 (i.e. elimination rate and plateau) need not be proven by the Crown in a specific case because they are "matters of scientific knowledge on which the expert is entitled to rely without further proof by the Crown". Assumptions #3 and #4 are different. Those are foundation facts which must be proven in evidence, failing which the opinion "would have to be discarded", per Grosse. Therefore, the Crown must prove the 3rd assumption of Dr. Mayers beyond a reasonable doubt as part of its case. See also R. v. Ali 2015 ONSC 563 at para. 18. But whereas in Paszczenko & Lima the Crown was in the "unenviable" position of having to prove a negative, in the case at Bar the accused offered evidence of his drinking pattern on the day of his arrest, and expert opinion as to the consequence.

[22] Beyond foundational principles, there is appellate guidance considering the evidence which tends to prove bolus drinking or not, as the case may be. In R. v. Calabretta, [2008] O.J. No. 4188, 2008 CarswellOnt 9305 (S.C.), Justice Langdon reviewed many of these, including location of taverns or drinking opportunities near the incident; evidence of pattern drinking; symptoms of impairment; expert evidence; and containers of alcohol in vehicle to name a few. See also R. v. Poel 2013 ONSC 1826.

[23] Lastly, Mr. Price suggested to me that the 30 minute period for recent consumption of alcohol prior to time of incident given by Dr. Ward, as opposed to the 15 minute period opined by Dr. Mayers, has itself been the subject of case law. Indeed, the Hodgson article, "The Validity of…", put into evidence by Dr. Ward, and relied on as support for the proposition that 30 minutes of no bolus drinking is required to found assumption #3, was referred to in R. v. St. Onge Lamoureux 2012 SCC 57 at para. 11. I would not go so far as to say that the 30 minute period in Mr. Hodgson's article has been accepted by the Supreme Court, but I do find that Mr. Hodgson's article is sufficiently authoritative that the Supreme Court chose to refer to it in a leading case on s. 258 of the Criminal Code.

Factual Analysis

[24] Dr. Ward's evidence establishes that, if I accept Gordon Coutts' drinking pattern as outlined in paragraph #10, his BAC at 7:11 p.m. would be no more than 73 mg of alcohol in 100 ml of blood. The question then becomes, do I accept Mr. Coutts' evidence? If I don't, does it nonetheless raise a reasonable doubt? If it doesn't, does the evidence that I do accept prove the case for the Crown beyond a reasonable doubt?

Mr. Gordon Coutts' Evidence

[25] I have concerns about the credibility of Mr. Coutts. I would itemize them as follows:

1. Mr. Coutts testified that he took back roads from Canada's Wonderland to his ex-partner's house using a GPS but denied that he did this because had been drinking. He said that he knew the route takes between 28 – 30 minutes, he had driven it multiple times afterwards, but did not know the location of the fence across the road which he hit on the day of the incident. If Mr. Coutts had indeed driven the route many times, it stands to reason that he should also know the location of where he hit a fence with his car. This is an internal inconsistency. I also find it difficult to accept that a driver using GPS navigation would run into a fence across the road.

2. Mr. Coutts admitted that when he was involved in the collision between his car and the fence across the road he called his ex-partner Alexander Stevenson. He admitted that his explanation to Mr. Stevenson about the cause of the accident was a lie, namely that the accident was caused by a car in the parking lot as opposed to driving into a fence. While he was candid to me in saying that his lie to Mr. Stevenson was a poor decision at the time, nonetheless, it detracts from Mr. Coutts' credibility. Upon being involved in an accident he chose to call his friend seeking help or advice and then proceeded to tell a lie about something so significant as being involved in an accident causing significant property damage.

3. Mr. Coutts testified that he did use a hand held device when calling Mr. Stevenson because, in his words "My business keeps me on the road every day of the year…I don't have a choice but to drive safely." This answer must be cast against the balance of his evidence in which he asserts that he drank 1 Rockstar beverage and then proceeded to mix himself a "roadie" containing 9 – 10 ounces of alcohol which he chose to drink in short order while driving. He then proceeded to drive into a fence, causing the hood of his car to be pushed up so far that it clearly entered his field of view as a driver. He then carried on his way. For him to say that he has no choice but to drive safely is a significant internal inconsistency in his evidence.

4. Mr. Coutts' evidence about his alcohol consumption pattern shows that he drank an alcoholic beverage at Canada's Wonderland as he was entering the park and again while in the park, which amounted to 3 drinks in about 5 hours. When he left the park for some reason he chose to drink one more Rockstar in the parking lot and mix himself a 9 – 10 ounce drink to consume in next 28 - 30 minutes. I was provided no reason why he accelerated his drinking pattern so dramatically in such a short span of time. This is an internal inconsistency detracting from his credibility.

5. Mr. Coutts testified that he did not find that the damage to the hood of his car affected his ability to see the roadway. While PC Nethercott did testify that he saw no sign of unusual driving when he observed Mr. Coutts, viewing the photographic image of the damaged Chevy Cruze operated by Mr. Coutts I have great difficulty accepting that the damaged metal hood of the car caused no difficulty in his ability to see the roadway. The pictures entered as exhibits in this trial show the front hood of the car bent up to such a degree that it is above the height of the steering wheel. This detracts from Mr. Coutts' credibility.

[26] The sum of my concerns about Mr. Coutts' credibility leads me to conclude that I cannot accept his testimony in whole. His credibility difficulties are too great. Nonetheless, I have come to the conclusion that it does raise a reasonable doubt about Assumption #3 in Dr. Mayers report, namely whether he consumed a large amount of alcohol prior to 7:11. One of the things assisting me in this conclusion is the evidence of Mr. Coutts' father Wally. He testified that when he picked up the Chevy Cruze from the impound lot he looked through the interior of the car and found a Pepsi bottle with a small residual fluid containing an alcoholic beverage. This goes some distance in confirming his son's evidence of mixing and consuming the "roadie" beverage which contained 9 – 10 ounces of vodka. Wally Coutts was vigorously challenged on this evidence, but I found that he was quite credible in his testimony that he searched the car and found the bottle with the fluid. Mr. Coutts senior was engaged in the arrest of his son from the very beginning. PC Nethercott called him to get the name of a lawyer for his son, and it is perfectly understandable under those circumstances for a father who obviously cares for his son to have ongoing curiosity about his son's legal predicament. This extended to his search of the impounded car. I completely accept his evidence that he found a Pepsi bottle containing residual alcohol fluid in the Chevy Cruze when it was released from impound.

[27] I also find it somewhat confirmatory of Gordon Coutts' evidence that his bolus drinking pattern yielded no outward symptoms of impairment, such as bad driving, or motor coordination deficits. Dr. Ward explained that this was because the alcohol from bolus drinking would not have significantly entered his blood stream prior to 7:11. I recognize that Mr. Coutts is an alcoholic, and would have an increased tolerance for alcohol consumption but this does provide some limited confirmation of why his BAC would be at 160 mg in 100 ml of blood at 9:36, but under 80 at 7:11.

[28] Aside from the evidence of Dr. Ward, as regards Dr. Mayers' third assumption, namely no consumption of large amounts of alcohol 15 minutes prior to 7:11, the Crown simply has not proven that assumption beyond a reasonable doubt. Mr. Coutts testified that he could not say when in the 28 – 30 minutes prior to 7:11 he consumed the "roadie". It could have been evenly spaced in that time frame, and it could have been in the last 15 minutes. After applying my factual analysis above to the third assumption of Dr. Mayers I find that Dr. Mayers' report is not entitled to any weight.

[29] Lastly, I find that there did exist a potential witness in this sequence of events, namely the passenger of the car, Jaclyn Reid. PC Nethercott knew of her identity at the time of Mr. Coutts' arrest. He would have known by the end of his shift on April 28, 2013 as a traffic enforcement officer with 16 years experience doing RIDE programs that this case could not be proven with Certificate evidence and that eyewitnesses were of potential significance unlike many Over 80 cases. It falls to the Crown to explain why Ms. Reid was not called as a witness, and I was provided no such explanation.

[30] For the foregoing reasons I find Mr. Coutts not guilty.

Released: June 10, 2015

Signed: "Justice David S. Rose"