Court File and Parties
Court File No.: 130403 Date: June 16, 2015 Location: Sarnia, Ontario
Ontario Court of Justice
Between: Her Majesty the Queen -and- Susan Marie Blais
Counsel
For Susan Blais: G. Punnett
For Crown: P. Willis
Reasons for Decision
Justice Jonathon C. George
Introduction
[1] Susan Blais is charged with impaired driving, and with operating a motor vehicle while the concentration of alcohol exceeded 80 mgs in 100 millilitres of her blood. She pleaded not guilty. The trial occurred over parts of two days.
[2] The defence conceded the need for a blood demand. In other words, the Crown was relieved of its burden to prove breath samples could not be obtained, and that a blood demand was necessary.
[3] Ms. Blais filed charter materials, and there was an indication early on that both parties were content this trial proceed as a blended hearing. She asserts a section 8 Charter violation, and seeks exclusion of the blood test results.
Charter Violation Claim
[4] Very little was said about this throughout the trial, and it appeared, although not expressly stated, that this was abandoned. In fact no submissions were made on the charter issues. In the event I have misunderstood, I nonetheless dismiss it. Upon my review of the written materials and after considering the evidence, Ms. Blais has not established, on a balance of probabilities, that her charter rights were violated. Sufficient grounds existed for the police to arrest Ms. Blais and to obtain the samples in the fashion they did.
[5] In the event I am wrong, having regard to the applicable test set out by the Supreme Court of Canada in R. v. Grant [2009] SCC 32, I would not have excluded the blood test results. They are admissible.
The "Last Drink Defence"
[6] I will outline the defence position. The defence contends there is evidence, based on Ms. Blais' pattern of drinking, that her blood alcohol concentration (BAC) could have been under .08 at the time of driving, even though the tests yielded accurate results as at the time they were taken.
[7] This defence is harder to make out than it once was. For it now to succeed there must be evidence demonstrating that the accused's consumption of alcohol would, first, render the concentration lower than .08 at the time of driving, and second, that the concentration of alcohol in the accused's blood is consistent with the test readings ultimately taken. The latter is in-step with the demise of what we used to call the 'Carter' defence in that evidence to the contrary is no longer a defence, absent evidence tending to show all of the following:
- that the approved instrument malfunctioned or was operated improperly;
- the malfunction or improper operation was such that it caused the "over .08" result;
- and the accused would not have been over the legal limit at the time of the alleged offence.
[8] Breath samples were not taken, and there is no attack upon the testing methods used to extract and analyze Ms. Blais' blood.
[9] The accused has the burden of establishing that due to the quantity of alcohol consumed, it may be that the BAC was below .08 at the time they were stopped by police, but continued to rise to the illegal level by the time the testing was conducted. In such cases, the primary issue is almost always accused' credibility and the reliability of their account. In other words, there must be clear evidence as to the accused's pattern of drinking before driving, evidence that typically comes from accused testimony.
Facts of the Incident
[10] On January 26, 2013, Ms. Blais was involved in a single vehicle collision. There were no passengers in her car. The police were called and responded to the scene at approximately 7:20pm. Some testimony has this closer to 7:30pm. In any case, she suffered injuries and was transported to the hospital. A blood sample was taken from her at the hospital at 10:17pm. This sample was submitted to the Center of Forensic Sciences (CFS) which reported back in February, 2013. These are the results:
- the analysis of Ms. Blais' blood, as at 10:17pm, resulted in a conclusion that her BAC was 195 milligrams of alcohol in 100 millilitres of blood, and
- based on this result, the projected BAC at approximately 7:30 pm is 203 to 251 milligrams of alcohol in 100 millilitres of blood, which is dependent on the following factors:
- there being no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the time of accident,
- there were no alcoholic drinks consumed after the incident and prior to blood collection,
- a rate of elimination of alcohol from the blood, varying between 10 and 20 milligrams of alcohol in 100 millilitres of blood per hour, and
- a two-hour plateau being applied to the lower estimation.
Toxicology Evidence
[11] There was no defence attack upon the continuity of the sample, the qualifications of CFS toxicologist Rachelle Wallage, or the report's accuracy. Cross examination of the toxicologist was simply to put to her the anticipated evidence of Ms. Blais (as to her drinking pattern), drawing from the expert conclusions as to BAC at the relevant time. The defence did not call an expert witness; simply taking advantage of the fact the CFS toxicologist was present and available for cross-examination.
[12] Ms. Blais testified. For her defence to succeed, I must find that she provided reasonable evidence as to her drinking pattern. The threshold is on a balance of probabilities. She need not prove these facts (her drinking pattern and consumption quantities) beyond a reasonable doubt.
Assessment of the Accused's Testimony
[13] Ms. Blais voluntarily consumed alcohol prior to driving on January 26, 2013. According to her, the location of her consumption was roughly 600 meters from her home, which was her intended destination. Her evidence was she was having an emotional crisis that day, on account of marital difficulties. As a result, she left her home and attended her cottage which is only a short distance away, for some "personal time to consider things". While at the cottage she received information leading her to believe her husband was being deceitful. This caused her to be angry and upset, which led to her pouring a "very, very strong drink". She testified to, one right after the other, drinking two eight ounce glasses, each containing half volume vodka. She further testified to driving immediately after this consumption. The accident occurs within 400 meters of her starting point (cottage).
[14] Before I continue with my review of Ms. Blais' evidence, the toxicologist testified that, given her age, weight and gender, had eight ounces of 40% vodka been consumed within 15 minutes of the incident, the sample collection being at 1017pm, the BAC at 7:30pm would have been between 5-30 mg of alcohol in 100 millilitres of blood. With 7:15pm used as the reference point (as there is some discrepancy in the evidence), the BAC would have been between 5-35 mg of alcohol in 100 millilitres of blood.
[15] Do I believe Ms. Blais, accepting completely and without reservation, her version of events? I do not. She would not have met the threshold of proof beyond a reasonable doubt.
[16] This, of course, is not the test. The question now is do I find her testimony to be a reasonable explanation, and one that could be true? Put another way is to ask, is there any basis upon which I can outright reject her testimony, finding it entirely incapable of belief?
[17] She testified to grabbing her keys immediately after consuming the second drink, with no delay getting into her car and driving off. Her explanation is, during this short drive, she reached for her GPS device to "get a better look at it"; that she became mesmerized by it (whatever that means) with her tires then hitting the gravel, at which point she sees headlights coming towards her. On her evidence this leads to her intentionally driving off the road into an embankment. She was very clear on this. She consciously and intentionally drove her vehicle off of the road.
Credibility Concerns
[18] There are several problems with her explanation. Generally, it made no sense. It did not have an air of reality. Furthermore, Ms. Blais admittedly told the police officer at the scene two things which are inconsistent with her present testimony, and which raise serious reliability, if not credibility, concerns. She told the officer, at one point, that she "had drinks, had a nap, and then left at 7:30pm". At another point she advises the officer she "had drinks earlier in the afternoon", I believe, at least according to the officer, referencing 2pm. This is a variation of the same, but in either case is entirely at odds with what she would have me believe. Hers is essentially a moving story line.
[19] I appreciate that, had Ms. Blais exercised her right to not testify, these utterances would have been of limited value, likely only relevant to the officer's formation of grounds. But as became evident in the Crown's cross-examination of Ms. Blais, serious issues are raised on what is the lynchpin of the defence. While it is true there is no shift in burden, having concluded the Crown has made a prima facie case, everything depended on her evidence respecting the timing and quantity of alcohol consumption. She was either lying to the police, or to the court, or this was all just hopeful thinking; an attempt to reconstruct something she wishes happened and which would have cast herself in the best possible light, enhancing her chances of success at trial. Regardless of her motive, in any of those instances her evidence is coloured, and specifically on its most critical aspect.
[20] I am concerned also with her rationalization, which was to essentially hold herself out as an expert, asserting without a shadow of a doubt that she drove having first turned her mind to whether she would have been, in her words "over the legal limit", being certain she was not. This was absurd, and fits completely with my suspicion this was a narrative, created after the fact, tailored to fit neatly with what she ultimately learned in the toxicology report.
[21] She was actually finding it hard to keep this story straight, as she twice referenced her poor decision making, at one point recounting how she was "astonished and shocked as to how she was not making reasonable decisions". This was ostensibly because of her marital difficulties and suspicions respecting her husband, but what it did was provide an inside look into how she was really functioning that night, which makes any rational, considered evaluation of her alcohol consumption and its impact, highly unlikely. To drive this point home further, and she was 'all in' on this, she testified that she "believed she was under the legal limit and that alcohol was not in her bloodstream, 100%", and that it was only because she knew this with some certainty that she thought it okay to drive.
Inconsistencies in the Accident Account
[22] Beyond any assessment of her evidence respecting drinking patterns, there were other curious aspects to her testimony. For example, she was adamant that she intentionally drove her vehicle off the road. If that weren't odd enough, her reason for doing so was because, as her right side tires hit the gravel, she specifically chose not to take corrective action. Stranger yet is, according to her, this was a well thought out decision, because at that very point she reflected upon a friend of hers being in a similar situation whose decision to correct led to her car flipping, causing serious injury.
[23] Several obvious questions are raised by this. First, why would simply steering the vehicle back onto the paved portion of the street amount to such a drastic manoeuvre? Or, why did she not just apply the brake?
[24] When you consider this with the fact that, on her own admission, she had just consumed copious of amounts of alcohol, the truth is she advanced this story in a concerted attempt to mislead the court about her level of intoxication, the extent of her impairment, and the impact of alcohol consumption.
Findings on Count 2 (Over 80)
[25] With respect to count 2 (over 80):
- I reject Ms. Blais' evidence as to her alcohol consumption and drinking pattern that night.
- As such, the, what I'll call "last drink defence" fails. In other words, there is no credible evidence which would enable a finding that her BAC was still rising at the time she was driving, and that it had not yet exceeded 80 mgs.
- That the evidence of CFS toxicologist Rachelle Wallage, and the content of her reports, are admissible, and that I accept her conclusions therein. That is, I find that at the time of driving Ms. Blais BAC was between 203 and 251 milligrams of alcohol in 100 millilitres of blood.
Impaired Driving Analysis
[26] Has the Crown proved, beyond a reasonable doubt, that Ms. Blais' ability to operate a motor vehicle was impaired by alcohol? This is, in some respects, a moot point given my findings and conclusions respecting count two and the admissibility of evidence. However, there is a distinction between a dismissal and stay by operation of Kienapple.
[27] The defence focussed on the officer's evidence that he was not going to charge Ms. Blais with impaired driving, but for the readings, and indeed this was his testimony. Otherwise, the attention was more to what the officer didn't observe, than on what he did.
For example, he did not notice blood shot eyes, flushness in the face, swaying, or staggering; all typical indicia of impairment.
[28] At this point, I should complete my assessment of Ms. Blais' evidence as I have only considered it as it impacts upon her "last drink" defence. The key piece of evidence is her explanation that she was checking her GPS and that it was this distraction which caused her two tires to contact the gravel shoulder. I find that she voluntarily consumed alcohol prior to driving, and I have already rejected her evidence respecting the accident's ultimate cause as being her conscious decision to drive into an embankment. This speaks volumes and, as I already alluded to in another context, colours every aspect of her account. Not to mention the fact it makes no sense that, in driving from her cottage to her home, which is only a few blocks apart in distance, she required the use of a navigation device.
[29] If I were to accept this aspect of her account, given the lack of indicia noted by the officer, an acquittal would be required. I, however, reject it. Here is why this is relevant. The fact there is an accident, with no apparent external cause, combined with the voluntary consumption of alcohol, can be sufficient proof of impaired driving. This path to a finding of guilt is therefore open. Does proof of an accident necessarily require a finding of guilt? No, but in these circumstances it is powerful evidence, especially so given the officers observations, which included the following:
- that, although not slurred, Ms. Blais' speech was "definitely altered from what I would say a normal person's speech would be", and
- the smell of alcohol emanating from Ms. Blais' mouth,
[30] Important as well is the expert's testimony that with these readings (readings I find to be admissible and accurate), there would be a level of impairment including a decreased ability to perform certain tasks, including driving.
[31] In rejecting Ms. Blais evidence as to the reason for her wheels hitting the gravel, and of her reason for ending up in the embankment, I am left with the evidence I do accept, which I just outlined. On the basis of that evidence, the Crown has established beyond a reasonable doubt that Ms. Blais' ability to operate a motor vehicle was impaired by alcohol.
Verdict
[32] I will endorse the Information to reflect that Ms. Blais has been found guilty of both counts one and two. I will stay one of the counts.
June 16, 2015
Justice Jonathon C. George