Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Nivekanth Jeyabalasingam

Before: Justice F. Crewe

Heard on: June 1 & 2 and July 6, 2015

Reasons released: July 27, 2015

Counsel:

• P. Cowle, for the Crown
• C. Assie, for the accused Nivekanth Jeyabalasingam

CREWE J.:

INTRODUCTION

[1] This matter was tried on June 1 & 2 of this year. On July 6, 2015 I delivered reasons dismissing a Charter application brought on behalf of the accused, and admitting into evidence the breath readings obtained from Mr. Jeyabalasingam on August 11, 2014.

[2] At that point defence counsel raised a further issue, that of bolus drinking, which he submits contains an air of reality on the facts of this case, specifically, the presence in the back seat of Mr. Jeyabalasingam's vehicle of an open bottle of Hennessy cognac. He further submits that the Crown is in no position to rebut the inference of bolus drinking.

[3] In support of his position, Mr. Assie relies upon the decision of the Court of Appeal for Ontario in R. v. Gettins [2003] O.J. No. 4758 (paras. 24-27), and upon the viva voce testimony of the toxicologist, Inger Bugyra, that a small amount of spirits, in the order of one and a half to two ounces, could impact upon the projected range of blood alcohol of the accused if it were consumed in "bolus" fashion, in other words, in the 15 minutes prior to his "care and control" of the vehicle.

[4] In my view, a slightly more detailed review of the relevant evidence is warranted.

The Evidence Relevant to "Bolus" Drinking

[5] Officer Gillespie testified that upon his (and Officer Blakely's) arrival at a schoolyard, the scene of an assault complaint, at 9:18 p.m., they were approached by a group of young people and he heard someone say: "they've got beer bottles, they're throwing them at us." He then heard the sound of breaking glass.

[6] He then observed Mr. Jeyabalasingam and another male, both standing near the rear of a Chrysler vehicle, quickly get into the vehicle. Mr. Jeyabalasingam got into the driver seat. The vehicle was started up and began to move, however the officers parked in front of the vehicle so as to impede its progress, and it stopped.

[7] Officer Gillespie did not say whether Mr. Jeyabalasingam or his passenger had anything in his hand, notably a liquor bottle, as he entered the vehicle, nor was he asked. He did note that as he was speaking to the driver, Officer Blakely advised him that he could see a liquor bottle in the back seat area. Gillespie then observed a bottle of Hennessy cognac in the back seat footwell area. Blakely subsequently removed the bottle and placed it on the roof of the car so that it could not be used as a weapon, in view of the earlier complaint, as well as the Applicant's aggressive behaviour.

[8] Mr. Jeyabalasingam was directed out of the car and continued to behave in a confrontational and aggressive manner, as a result of which Officer Blakely detained him as a suspect on a charge of assault, took control of him and placed him in handcuffs, escorting him back to the police vehicle. It was at this point, in close proximity, that he detected the odour of an alcoholic beverage emanating from the Applicant. He was not asked by either counsel to elaborate upon the strength or lack thereof of that odour. Officer Gillespie did not testify to detecting the odour of an alcoholic beverage when he spoke with the Applicant as he sat behind the wheel of the car.

[9] Officer Gillespie noted two empty Corona brand beer bottles near the rocks on the Boulevard, both of which were intact. He also noted the presence of broken glass on the road which was consistent in appearance with the glass in the Corona bottles.

[10] Officer Blakely testified that at 9:37 PM, after having advised the accused of the impending arrival of the ASD and of his right to counsel, Mr. Jeyabalasingam said "Honestly, I had one drink."

[11] No direct evidence was adduced that Mr. Jeyabalasingam engaged in bolus drinking (or any drinking) within the 15 minutes prior to assuming care and control of the motor vehicle. None of the assault complainants were called to testify, primarily as a result of the decision not to lay charges with respect to those allegations, neither did Mr. Jeyabalasingam nor his passenger testify as to bolus drinking. Neither of the officers testified to having witnessed any drinking by the Applicant or his passenger, nor were they asked.

[12] The evidence of the toxicologist, Inger Bugyra, relevant to the issue of bolus drinking, was elicited in cross-examination. She had earlier testified that in her view, based on the breath readings, 117 mg. at 11:59 PM and 118 mg at 12:29 AM, and having regard for standard elimination rates, the driver's blood-alcohol level at the time of care and control, 9:18 PM, would have been between 115 and 165 mg of alcohol per 100 ml of blood. She truncated the breath readings down to 110 prior to calculating her "read-back' projection.

[13] In cross-examination, the following evidence was elicited:

Q. Your opinion is based on an assumption that no large quantities of alcohol were consumed within 15 minutes of the relevant time, correct?

A. Yes.

Q. A large quantity could be 1 ½ ounces of alcohol.

A. Yes…. A large quantity simply means you have to have an appreciable amount for the projected range to change. So a minimum of a standard drink would be required. A standard drink is 1 ½ ounces of spirits at 40%, a bottle of beer at 5%, or a 5 ounce glass of wine. So that is the minimum that would have an impact on the projected range. So if you have more than a standard drink, that would impact the projected range.

Q. So if a person had 3 to 4 ounces of spirits within 15 minutes, conceivably they could be under the legal limit at the time of (care and control), but by the time they take the test, they are over.

A. If they consume 3 to 4 ounces within 15 minutes, they wouldn't reach the peak reading at the time of the (offence), but they would at the time of the breath test. So to address that we can mathematically remove that amount of alcohol from the projected range if we know the weight of the person.

The Analytical Framework

[14] In Gettins, supra, the Court of Appeal for Ontario noted, at paragraph 25:

In R. v. Grosse (1995), 107 C.C.C.(3d) 97 (Ont.C.A.), the court held that where an expert's opinion concerning the blood-alcohol level is entirely dependent on the lack of bolus drinking, the Crown is required to prove the lack of bolus drinking. The Court concluded at p. 103 that there was sufficient evidence of a lack of bolus drinking because… There were no containers or bottles of alcohol found in the vehicle, no strong odour of alcohol about the respondent, and no evidence that the respondent had just left a drinking establishment.

[15] The Court of Appeal for Ontario dealt with this issue again in R. v. Paszcenko; R. v. Lima 2010 ONCA 615, [2010] O.J. No. 3974. At paragraph 28, the court observed:

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.

And further, at para. 29:

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 of 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.

[16] Mr. Cowle submits that I should apply the common sense inference referred to above in Lima in the facts of this case. He further asks me to have regard for the following comments of Arbour, J.A., in R. v. Johnson (1993), 79 C.C.C. (3d) 42, as cited in Gettins, supra, at para 25:

In the face of proven facts calling out for an explanation, the failure of the accused to testify has evidentiary significance when the accused is in a unique position to provide such an explanation. Failure to testify is not evidence of guilt. It cannot be used to relieve the Crown of its burden of proving guilt beyond a reasonable doubt. However, when an innocent explanation for an incriminating set of facts is not offered by the accused, or when his explanation comes solely from an out-of-court statement which has been introduced in evidence, if he does not submit himself to cross-examination, the judge or jury may properly draw from that an inference unfavourable to the accused.

[17] In R. v. Lepage, [1995] 1 S.C.R. 654, (para. 29-30) Justice Sopinka, writing for the majority, cited Justice Arbour's judgment in Johnson with approval, and noted that the Supreme Court had earlier approved of the reasoning in Johnson in R. v. Francois, [1994] 2 S.C.R. 827.

[18] Justice Sopinka subsequently wrote the majority judgment for the Supreme Court of Canada in R. v. Noble, [1997] 1 S.C.R. 874. In that decision, the majority, per Sopinka, J. held, at paragraph 53:

This appeal concerns the evidentiary significance of the failure of the accused to testify at trial. While it is plain that the accused has a right not to testify at trial, may the trier of fact consider this silence in arriving at its belief in guilt beyond a reasonable doubt? In my view, the right to silence and the presumption of innocence preclude such a use of the silence of the accused by the trier of fact. It is apparent in the present case that the trial judge did place independent weight on the accused's failure to testify in reaching his belief in guilt beyond a reasonable doubt, which in my view constituted an error of law.

[19] Later in his Reasons, at paragraph 77-78, Justice Sopinka notes:

some reference to the silence of the accused by the trier of fact may not offend the Charter principles discussed above: where in a trial by Judge alone the trial judge is convinced of the guilt of the accused beyond a reasonable doubt, the silence of the accused may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt. If the Crown has proved the case beyond a reasonable doubt, the accused need not testify, but if he doesn't, the Crown's case prevails and the accused will be convicted. It is only in this sense that the accused "need respond" once the Crown has proved its case beyond a reasonable doubt. …Such treatment of the silence of the accused does not offend either the right to silence or the presumption of innocence. If silence is simply taken as assuring the trier of fact that it need not speculate about unspoken explanations, then belief in guilt beyond a reasonable doubt is not in part grounded on the silence of the accused, but rather is grounded on the evidence against him or her. The right to silence and its underlying rationale are respected, in that the communication or absence of communication is not used to build the case against the accused. The silence of the accused is not used as inculpatory evidence, which would be contrary to the right to silence, but simply is not used as exculpatory evidence… Thus, a trier of fact may refer to the silence of the accused simply as evidence of the absence of an explanation which it must consider in reaching a verdict. On the other hand, if there exists in evidence a rational explanation or inference that is capable of raising a reasonable doubt about guilt, silence cannot be used to reject this explanation.

[20] Thus while the Supreme Court has not rejected the reasoning of the Court of Appeal for Ontario in Johnson, the language from Noble, above would seem to serve as a caution to trial courts in the manner in which it is to be applied.

Analysis

[21] The accused was not in his vehicle when the police arrived on scene. There is no evidence as to how long he had been outside the car, however, it seems that some eight minutes earlier a group of young males had called in a complaint to the police that the accused and his friend were committing an assault upon them. When police arrived this group of teenagers approached the police and complained that the accused and his friend were throwing beer bottles at them. At around this time Officer Gillespie heard the sound of breaking glass, and later discovered broken (and unbroken) beer bottles near the scene.

[22] The open bottle of cognac which Mr. Assie points to as providing an air of reality to the bolus drinking defence was found inside the car in the back seat area. When the officers first saw the accused and his friend they were outside the car and hurriedly got into the car and started it up. There is no evidence that he was in possession of the bottle of cognac when he was outside the car. Indeed, the evidence is to the contrary.

[23] The more immediate concern, it seems to me on the available evidence, is whether there is a reasonable inference that he had been drinking from a beer bottle just prior to entering the car, as potentially evidenced by the sound of breaking beer bottles. Is there an available inference that he had been drinking beer just before breaking the bottle? If so, does it support a finding of "bolus" drinking?

[24] This concern is somewhat alleviated, it seems to me, by the utterance from the young complainants that the accused and his friend had been throwing beer bottles at them. This utterance, coming as it did just prior to the sound of breaking glass, together with the presence of other empty beer bottles of the same brand in the immediate area, provide circumstantial evidence that someone, whether the accused or his friend or, indeed, someone else entirely, was simply breaking (or throwing) empty bottles. I recognize the hearsay nature of the utterance by the complainant, however I need draw no conclusions as to the truth of whether the bottles were being thrown "at" (them). The fact it was said, accompanied with the near instantaneous sound of breaking glass, and the presence of other unbroken bottles, provides some circumstantial evidence from which an inference could be drawn that someone was simply breaking beer bottles.

[25] Even in the absence of that evidence, however, there is no evidence that the accused was the one who had smashed the bottle, or, if he had, had consumed any of it prior to smashing it, whether part of it or the entire bottle, within the previous 15 minutes. I recognize the consumption of a bottle of beer in 15 minutes is, in and of itself not that staggering a proposition. However, there is nothing in the evidence here which leads me to have concerns that the accused had been drinking, much less engaged in bolus drinking, within the 15 minutes prior to getting into his car. In addition to the evidence noted above, only one of the officers testified to having noted the odour of an alcoholic beverage, and he does not describe it as a strong odour, nor was he asked. (Grosse, supra at p. 103).

[26] The toxicologist's opinion was that the minimum bolus consumption required to impact upon the projected blood-alcohol range was the equivalent of one beer at 5% alcohol by volume; one and a half ounces of spirits at 40% alcohol by volume, or 5 ounces of wine. She did not say what level of impact there would be on her projected range from that minimum level of consumption, nor was she asked. In other words, even if the accused had consumed a bottle of Corona beer within the 15 minutes prior to assuming care and control of his vehicle, thus having consumed the minimum necessary to impact upon the projected range, (assuming the bottle contained the required 12 ounces of beer at the noted 5%, facts which are notably not before me) would that amount of consumption have been sufficient to reduce his blood-alcohol level from a minimum of 115 mg per 100 mL of blood to one of less than 80 mg per 100 mL of blood? There is no evidence before me on this point, as the toxicologist wasn't asked, and I am therefore effectively being asked to speculate in that regard.

[27] Further on that point, as noted above in the summary of the evidence of the toxicologist, she agreed with defence counsel's suggestion that the consumption of 3 to 4 ounces of spirits within the preceding 15 minutes could have produced the result that the accused's blood alcohol level at the time he was in care and control of the vehicle would not have been over 80, whereas the subsequent breath tests would reflect an "over 80" reading.

[28] She goes on to add, however, that the projected range could be mathematically adjusted simply by deducting the amount consumed within that period, having regard for the person's weight. No follow-up questions were put to her, such as, for example: If Mr. Jeyabalsingam weighed 170 pounds, and consumed the said 3-4 ounces of cognac within the prior 15 minutes, what would you expect his blood-alcohol level to have been at 9:18 PM? (see, for eg. R. v. Bedi [2005] O.J. No. 2675 (OCJ) per Wolder, J. at para. 18; In that case, an open bottle of vodka was found in the front seat area of the vehicle, on the floor of the car, together with open cans of Coke. The toxicologist in that case projected a range of 120 mg to 160 mg at the time of care and control of the vehicle, a range not dissimilar to that in the instant case. The toxicologist was asked in that case to determine the amount of bolus consumption that would be required to bring the blood-alcohol level of the accused below 80 mg. She testified in that case that it would have required the consumption of 7 ounces of vodka in bolus fashion. There was no evidence led by the accused to support consumption of that nature, and the Court rejected the defence, notwithstanding the presence of the open liquor near the driver.)

[29] In my view, the "common sense" inference referred to in Lima, supra, is applicable in this case, and indeed is consistent with the complete absence of evidence of bolus drinking in this case. It might be fair to observe that common sense may well dictate that if a person had just engaged in bolus drinking, he would not get into and start up a vehicle in the immediate presence of police officers in a marked cruiser.

[30] None of the witnesses who were present before the arrival of police testified to bolus drinking by the accused, nor did the accused or his passenger, nor did the officers testify to having seen him drinking or with a bottle of any sort of alcoholic beverage in his possession. Nor were they asked. The Applicant's only statement to the police was that he had consumed one drink. There is simply no evidence before me that the accused engaged in bolus drinking, nor is there circumstantial evidence from which I infer that he did. (see, eg. R. v. Pyrek [2015] O.J. No. 3140 (OCJ) per Monahan, J. at para 188). I am satisfied that the Crown has proven beyond a reasonable doubt that he did not. I do not draw any adverse inference from the Applicant's failure to testify, I merely note that there is no evidence of bolus drinking.

[31] The evidence against Mr. Jeyabalasingam is, in my view, overwhelming. I therefore find that the Crown has proved its case beyond a reasonable doubt and I find him guilty of the charge as arraigned.

Released: July 27, 2015

Signed: "Justice F. Crewe"