Court File and Parties

Date: September 25, 2015

Court File No.: 13-7222

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jacob McGauley

Before: Justice Paul F. Monahan

Heard on: July 30, 2015

Reasons for Judgment

Released on: September 25, 2015

Counsel:

Ms. M. Mungovan — for the Crown

Mr. B. Daley — for the defendant Jacob McGauley

MONAHAN J.:

INTRODUCTION

[1] Jacob McGauley is charged that on or about June 4, 2013, that he did consume alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 mL of blood and that he did operate a motor vehicle contrary to s. 253(1)(b) of the Criminal Code of Canada (the "Code").

[2] The trial was heard on July 30, 2015. Mr. McGauley brought an application at trial pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the "Charter") to exclude certain breath samples alleging a violation of s. 8 of the Charter.

[3] The trial and the Charter application were heard, on consent, on a blended basis. It was also agreed that the Court's decision on the Charter application would be deferred until the time of the Court's decision on the trial proper.

[4] At the time of the events in question Mr. McGauley was 19 years of age. He spent the late evening of June 3, 2013 and into the early morning hours of June 4, 2013 with two friends first at a bar called "Three Brewers" where one of the friends worked, then at an adult entertainment establishment or "strip club" called "Pure Gold" and then apparently at McDonalds. He was pulled over by Constable Katherine Coutts of the Peel Regional Police shortly after 3 AM on June 4, 2013. He was the subject of an approved screening device ("ASD") demand which he failed. He was placed under arrest and subject to an approved instrument demand. He later provided breath samples for analysis by an Intoxilyzer 8000 C which gave rise to results which registered 160 and 150 mg of alcohol in 100 mL of blood. Both samples were provided within two hours of when the alleged offence took place.

[5] The defence argues that the approved instrument demand was invalid because the officer could not properly rely upon the ASD result. The defence submitted that the ASD result could not provide reasonable and probable grounds because of a series of alleged deficiencies by the arresting officer including the failure to take into account the possibility of a residual mouth alcohol false positive result with particular reference to the fact that open alcohol was found in the car; because the defendant had clearly lied when he denied drinking and then altered that statement when he stated that he had one beer 30 minutes prior; and because the officer was allegedly unaware as to whether the ASD was properly calibrated. As a result, the defence submits that there was a section 8 Charter violation with respect to the approved instrument demand which ultimately gave rise to the Intoxilyzer 8000 C results.

[6] The defence also submits that apart from the Charter concerns, that the presumptions of identity contained in s. 258(1)(c) and s. 258(1)(d.1) of the Code, have been rebutted by evidence of "bolus" drinking immediately before Mr. McGauley was pulled over.

[7] The trial took place in one day. The Crown called 4 witnesses as follows:

(i) Constable Coutts, the arresting officer, testified as to the roadside stop;

(ii) Constable Douglas Holmes, the breath technician, testified as to the taking of the breath samples with the Intoxilyzer 8000 C; and

(iii) two friends of Mr. McGauley, Mr. Kacper Rusiak and Mr. Luke Mazzariol, who were with him on the evening of June 3 and 4, 2013, testified, among other things, as to their own consumption of alcohol, and the consumption of alcohol by Mr. McGauley, on the night/morning in question.

[8] On the Charter application and the trial proper, the defence called Mr. McGauley. In addition, on consent, the Court received from the defence an expert's report in writing from a toxicologist, Mr. Bernard Yen.

FACTS

[9] The facts as to what occurred at the roadside and the Intoxilyzer 8000 C results are not contested. What is contested and disputed is whether Mr. McGauley did engage in bolus drinking immediately prior to being pulled over. The defence submits that he did and the Crown submits that he did not.

[10] I will identify and determine the disputed facts below. Let me be clear as well that I am not setting out all of the evidence of each witness. Rather, I am only setting out only an overview of the evidence.

Constable Coutts

[11] At the time of the events giving rise to this case, Constable Coutts had been an officer with the Peel Regional Police for just over three years.

[12] At 3:10 AM on June 4, 2013 she saw the vehicle driven by Mr. McGauley traveling south on Erin Mills Parkway where it turns into Southdown Road south of the QEW. He was driving a Volkswagen Jetta which was registered in his name. He was initially traveling at approximately 70 km/h in a 60 km zone but he "punched the accelerator" and sped up to about 90 km an hour just before Constable Coutts pulled him over.

[13] After pulling the vehicle over, Constable Coutts walked up to the driver's side of the vehicle. Mr. McGauley was in the driver's seat. There was a passenger in the front passenger seat and in the rear passenger seat behind the front passenger side. There was a 26 ounce bottle of liquor on the floor in the back seat behind the driver which contained a small amount of a dark liquid. The bottle was later identified as "Kracken" rum. She said the bottle was almost empty.

[14] Constable Coutts noted that Mr. McGauley's eyes were red rimmed and watery. She asked him if he had been drinking. He said no. The front passenger indicated that he (the passenger) had been drinking. Constable Coutts asked Mr. McGauley to step out of the vehicle. When he did so she could smell the odour of alcohol coming from him. She then asked again if he had been drinking and he said yes he had one pint of beer about 30 minutes earlier. She then made an ASD demand on him at 3:20 AM. She did not have an ASD with her but one arrived at 3:21 AM. It was an Alcotest 7410. She tested it herself and it registered zero confirming to her that it was working properly as she had no alcohol in her system. She administered the test to Mr. McGauley at 3:23 AM and he registered a fail indicating to her that he had more than 100 mg of alcohol in 100 mL of blood in his system. She testified that the result gave her reasonable and probable grounds to arrest him for excess blood alcohol which she did. She then advised him of his right to counsel and gave him a caution. At 3:29 AM, a further breath demand was made, this one for an approved instrument.

[15] Mr. McGauley and Constable Coutts attended at 11 division where she facilitated a discussion between Mr. McGauley and duty counsel. She turned him over to the custody of Constable Holmes, the breath technician. The first sample was provided at 4:20 AM on June 4, 2013 and it gave a truncated reading of 160 mg of alcohol in 100 mL of blood. The second reading was at 4:42 AM and it provided a result of 150 mg of alcohol in 100 mL of blood. The certificate of a qualified technician and a notice of intention to produce the certificates were both served on Mr. McGauley.

[16] Constable Coutts testified that generally Mr. McGauley's speech was fair and that he was not staggering. He was cooperative and polite. She said that he appeared no more or less intoxicated throughout the time that she was dealing with him. The defence took issue with the question of whether or not he appeared intoxicated at all but suffice it to say that it was the evidence of Constable Coutts that Mr. McGauley did not change in the manner in which he presented during the time that he was in custody.

[17] Constable Coutts was cross-examined on the issue of whether or not she turned her mind to the possibility of a false reading with respect to the ASD device on the basis that Mr. McGauley may have been drinking in the 15 minutes prior to the time the sample was provided. Constable Coutts testified that she was aware of the possibility of a false positive if the subject had been drinking in the 15 minutes prior to the sample being provided into the ASD. She stated that she relied on Mr. McGauley's statement that he had had one beer 30 minutes earlier. She said that it did not occur to her that he had been drinking from the bottle of rum found in the backseat during the 15 minutes prior to the test being administered.

[18] It was suggested to her that she "dropped the ball" on the issue of residual mouth alcohol because Mr. McGauley had at first denied drinking and then admitted that he had had a pint of beer 30 minutes prior. It further was suggested to Constable Coutts that Mr. McGauley must have been lying in one of the two statements he made (either he was drinking or he was not) and that the almost empty bottle of alcohol in the backseat should have led her to ensure that Mr. McGauley was in her presence for 15 minutes prior to administering an ASD device. She rejected the proposition that she "dropped the ball" and stated simply that she was satisfied based on his statement that it had been 30 minutes since his last drink. It was put to her that in retrospect she should have waited 15 minutes to administer the ASD. Her response was that she supposed that would be a reasonable thing to do but that her concern was for delay which had an issue in other cases she had dealt with.

[19] No statements were taken from Mr. Rusiak or Mr. Mazzariol at the time of the original charges. It would appear that at least a year after June 4, 2013 the police became aware of a possible bolus drinking defence being raised by the defence. Constable Coutts was asked by the Crown at that time to conduct a further investigation on this issue. This led to Constable Coutts taking statements from each of Mr. Rusiak and Mr. Mazzariol from August to November 2014.

Constable Douglas Holmes

[20] Constable Holmes was the responsible breath technician associated with the investigation. The first sample was provided at 4:20 AM on June 4, 2013 and it gave a truncated reading of 160 mg of alcohol in 100 mL of blood. The second reading was at 4:42 AM and it provided a result of 150 mg of alcohol in 100 mL of blood.

[21] He also testified that an Alcotest 7410 ASD has a manufacturer's recommended calibration check every 6 months but that police have an internal policy that has these devices checked every two weeks on Sundays.

Kacper Rusiak

[22] Mr. Rusiak is currently 24 years of age. He is a high school friend of Mr. McGauley. They don't get together often now but they were good friends in high school and they remain friends.

[23] He gave a statement to police in this case in November 2014, almost 18 months after the events in question. He was called as a witness by the Crown and cross-examined by counsel for Mr. McGauley.

[24] He said that on the evening of June 3, 2013, he went to Mr. Mazzariol's place of work, a bar known as Three Brewers where Mr. Mazzariol was working as a bartender. He said he brought a bottle of "Kracken" rum with him. He said that he drank some of it at home before he came although he also testified that he did not drink at home generally speaking.

[25] He was asked if he had anything to drink at Three Brewers and he said he may have had a beer but he did not remember. However, he was clear in his evidence that he remembered that Mr. McGauley had nothing to drink at Three Brewers but he gave no explanation as to how it was that he remembered this fact. He initially said he did not know what time Mr. Mazzariol got off work but then refreshed his memory by looking at his statement given 18 months after the fact and he then said it was around 11 PM. He said Mr. McGauley had arrived about 10:30 PM. They went to the adult entertainment club after Mr. Mazzariol got off work. They arrived sometime after 11 o'clock and left after last call at 2 AM. He said that they had ordered a pitcher of beer but he couldn't say if Mr. McGauley drank from it although he thought that he most likely did. He said he remembered they had one pitcher of beer and he said he was pretty sure they split the cost of it.

[26] He testified that after the adult entertainment club closed the night was over and they had nothing else to do so they went to McDonalds and had something to eat. He testified in-chief that he had the bottle of rum between his legs on the floor. When he was asked by the Crown in-chief if he was drinking from it, he appeared unsure and said "I believe so" and then had to review his statement which he had already reviewed that day. Then he said it was almost three years ago and that he believed he had some drinks from it. He said all of the occupants of the vehicle including Mr. McGauley were drinking from the rum. He said he didn't really know how much Mr. McGauley had of the rum and agreed with the Crown's suggestion that perhaps Mr. McGauley was just making a "motion of drinking" and was not really drinking at all.

[27] He indicated that he maintained a friendship with Mr. McGauley but he said that they had not spoken about what they had each drunk that night. He did say that Mr. McGauley had called him to tell him the police would be calling him. The Court understood this to be a call from Mr. McGauley to Mr. Rusiak that was made sometime in or around mid-2014 when the police were beginning the bolus drinking part of the investigation.

[28] In cross-examination his testimony changed and evolved when his November 2014 statement was put to him indicating that he had been drinking the 26 ounce bottle of rum with Mr. McGauley and Mr. Mazzariol in the parking lot at McDonalds and then in the car just before they were pulled over. Indeed, he told defence counsel in cross examination that he agreed with the proposition that within the 15 minutes prior to the police pulling them over, the three friends had each drunk one third of the bottle of rum (about 8 ounces).

[29] I note that nothing was said in-chief by Mr. Rusiak about drinking from the rum bottle while in the parking lot at McDonalds notwithstanding that Mr. Rusiak testified that he had reviewed his statement the day of his testimony and he further reviewed it more than once while he was in the witness stand giving his testimony.

[30] After the cross examination, the Court asked Mr. Rusiak by way of clarification if it was his evidence to the Court that the three friends had effectively consumed an entire 26 ounce bottle of rum between them in the 10 to 15 minutes prior to the police pulling them over and he answered yes that was his evidence.

Luke Mazzariol

[31] Mr. Mazzariol was the third friend of the group of three friends out together on June 3 and 4, 2013. He is currently 24 years of age. He gave a statement to police in August 2014 apparently as part of the follow-up bolus drinking investigation conducted by police after the fact. He said his memory was not good at the time of the statement. He said he was working at Three Brewers and that he got off work at midnight. Mr. Rusiak was already with Mr. McGauley. They went to Pure Gold, the strip club, and ordered a pitcher of beer. He saw Mr. McGauley have one glass of beer. When they left Pure Gold they went on Erin Mills Parkway at some point. He thought they must have gone somewhere else in between Pure Gold and being pulled over because the Erin Mills Parkway route was not a direct route home from Pure Gold. In cross examination, he said that they could have been at McDonalds but he did not remember it. He said he drank from the 26 ounce bottle when he was getting in the car at Three Brewers when they were picked up. He said that was the only time he drank from it that he remembered. He never saw Mr. McGauley drink from the 26 ounce bottle. He saw Mr. Rusiak drink from it. He did not pay attention as to how much Mr. Rusiak drank. He testified that he thought it was 15 to 20 minutes after they left Pure Gold to when they got pulled over.

[32] He admitted that there were huge holes in his memory in August 2014 when he gave a statement (and now) and that he could be off by a large amount of accuracy. He told the police officer that they were transporting the 26 ounce bottle to Mr. Rusiak's house to drink there but it was suggested to him that this did not make a lot of sense as the bottle was almost empty. Other than admitting that there were huge holes in his memory and general questions and answers to the effect that he did not know how the Kracken got consumed, Mr. Mazzariol was not crossed on his evidence that he only drank from the Kracken at Three Brewers and that he did not see Mr. McGauley drink from it.

[33] Neither the Crown nor defence put it to Mr. Mazzariol that Mr. Rusiak had testified that they had each drank approximately 8 ounces of the rum immediately prior to being pulled over by the police including in the parking lot at McDonalds. The Court raised with counsel (in the absence of the witness) whether the Mr. Mazzariol should be asked to comment on the evidence just given by Mr. Rusiak that they had been guzzling the rum just prior to being pulled over and that they had each drunk about 8 ounces at that time. Defence counsel indicated that he did not wish to put this question to the witness. Thereafter, the Crown in re-examination asked if Mr. Mazzariol recalled if they were drinking the rum outside of McDonalds and he said all he could remember was the drinking of the rum at Three Brewers but that it could have happened that there was some drinking at McDonalds or it might not have happened and he did not remember. He had no recollection of Mr. McGauley drinking the rum at McDonalds and did not remember being at the McDonalds at all. He was not asked about the specific evidence of Mr. Rusiak that the three friends (including Mr. Mazzariol) had effectively drank the entire 26 ounces of rum at McDonalds and in the car afterwards such that the bottle had been consumed in its entirety in the 10 to 15 minutes prior to being pulled over.

Jacob McGauley

[34] Jacob McGauley was 19 years old at the time of the events in question. After a few preliminary questions about his place of residence and work history, Mr. McGauley stated that he agreed with Constable Coutts' account of what had occurred at the traffic stop. He was then asked by his lawyer in-chief the following question "prior to being pulled over where were you?" This led to a single uninterrupted answer as follows:

"Well, I had went to pick up Kacper and Luke from Three Brewers and then after that we went to Pure Gold, the strip club and we had ordered a pitcher and they paid for it. I drank one glass of beer. Played a game of pool. We left there roughly after 2 AM. and then we went to McDonalds. Had a little bite to eat. We got out of McDonalds, started drinking the Kracken, passing it around. I took several gulps of it. We then got into the car and I continued to drink the Kracken and as I was driving down Southdown Road about to turn left I was pulled over by the arresting officer."

[35] He was then asked further questions by his counsel to which he answered that he drank 8 to 10 ounces of the rum in the 5 to 10 minutes prior to being pulled over. He said that Mr. Mazzariol and Mr. Rusiak drank as well.

[36] He was asked in-chief the question "you don't pretend to be precise about what other amounts of alcohol you had been drinking prior to consuming the rum" to which he said "yes". Notwithstanding this answer, he had previously given evidence in-chief that he had only consumed one glass of beer (other than the rum) and in cross-examination he again reiterated that he only had one beer at Pure Gold.

[37] In cross-examination, he was asked how often he drank back in 2013 and he stated he drank 3 to 4 times a week. He also testified that he usually drank 6, 7 or 8 beers when he drank. He also acknowledged that after Pure Gold and McDonalds and prior to the rum being consumed, "the night was over".

The Toxicologist's Report

[38] The defence tendered an undated expert report from a toxicologist, Mr. Bernard Yen. The report did not comply with the provisions of s. 657.3 of the Code in that it was not accompanied by an affidavit or solemn declaration nor was it accompanied by the qualifications of the expert. However, the Crown consented to the admission into evidence of this report and the Court appreciated that both counsel were attempting to deal with this trial on an expedited and efficient basis and, as a result, the Court accepted the report on that basis.

[39] The report is a one-page handwritten document and is largely in point form. At the beginning of the report it sets out Mr. McGauley's height, weight and age. It also sets out the Intoxilyzer 8000 C readings of 160 and 150 mg of alcohol in 100 mL of blood at 4:20 AM and 4:42 AM respectively.

[40] Then report then states "consumed 2 pints beer from 2 AM on and approximately 10 to 12 ounces of rum just prior to 3:11 AM". The report then states "it is not possible to determine the BAC at 3:11 AM due to the large amount of alcohol consumed close to 3:11 AM." Accordingly, the report assumes total alcohol consumption for the evening of two beers (from 2:00 AM) plus 10 to 12 ounces of rum (just prior to 3:11 AM).

[41] There is an additional note at the bottom of the page after the expert's signature written in by counsel in counsel's handwriting and initialed by the expert. The note at the bottom reads "if 8 ounces is consumed within 15 minutes of 311 he may have been less than 80 mg. It is impossible to tell". It is unclear if this additional note assumes the 2 pints of beer from 2 AM or not and is simply intended to be a variation of the earlier conclusion which had proceeded on the basis of the 2 pints of beer and the 10 to 12 ounces of rum rather than an assumption that the total alcohol consumption was just the 8 ounces mentioned in the additional note.

ISSUES

[42] The following issues arise for decision in this case:

Issue 1 - Has the Crown established that Constable Coutts had reasonable grounds to believe that Mr. McGauley had committed an offence under s. 253 of the Code such that the breath demand made under s. 254(3) of the Code was valid? If not, should the evidence be excluded under s. 24(2) of the Charter?

Issue 2 – Has the Crown proved beyond a reasonable doubt that Mr. McGauley 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 s. 253(1)(b) of the Code?

[43] I will analyze each issue in turn.

Issue 1 - Has the Crown established that Constable Coutts had reasonable grounds to believe that Mr. McGauley had committed an offence under s. 253 of the Code such that the breath demand made under s. 254(3) of the Code was valid? If not, should the evidence be excluded under s. 24(2) of the Charter?

[44] When the defendant provided his breath sample into the ASD device at 3:23 AM and registered a fail, Constable Coutts placed the defendant under arrest for excess blood alcohol. She proceeded to read him his rights to counsel and gave him a caution. She made a further breath demand on him at 3:29 AM, this time pursuant to s. 254(3) of the Code. In order to make such a demand, an officer must have reasonable and probable grounds to so and it is the Crown's onus. There is no doubt that the key basis for the reasonable and probable grounds in this case was the ASD fail result.

[45] It is common ground that an ASD fail result will usually provide sufficient reasonable and probable grounds for an approved instrument breath demand under s. 254(3). However, in this case the defence submits that Constable Coutts did not have reasonable and probable grounds to make the breath demand pursuant to s. 254(3) as she ought reasonably to have known that the ASD fail result was not reliable for the following reasons: the failure to take into account the possibility of a residual mouth alcohol false fail reading with particular reference to the fact that open alcohol was found in the car; because the defendant had clearly lied when he denied drinking and then stated that he had had one beer 30 minutes prior; and because the officer was unaware as to whether the ASD was properly calibrated. As a result, the defence submits a section 8 violation with respect to the approved instrument demand which ultimately gave rise to the Intoxilyzer 8000 C results.

[46] It is my view that the Crown has established that Constable Coutts did have reasonable and probable grounds, namely the ASD fail result, to proceed to make the breath demand under s. 254(3) of the Code.

[47] The effects of residual mouth alcohol on ASD testing are well known. Constable Coutts was aware of the fact that if there is consumption of alcohol within 15 minutes of use of the device there could be a false fail reading with the ASD. She accepted Mr. McGauley's statement that he had had one beer 30 minutes earlier and she was entitled to do so in my view in the circumstances of this case. The issue of residual mouth alcohol has been canvassed in a number of decisions, including by the Supreme Court of Canada in R. v. Bernshaw, [1995] 1 S.C.R. 254, by the Ontario Court of Appeal in R. v. Einarson, [2004] O.J. No. 852 (C.A.) and by Mr. Justice Durno of the Ontario Superior Court in R. v. Mastromartino (2004), 70 O.R. (3d) 540 (Sup. Ct.). Some of the relevant principles are as follows:

(i) Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay: R. v. Mastromartino, supra at para 23;

(ii) Where the screening device used is an approved one, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary: R. v. Bernshaw, supra at paras. 80;

(iii) The mere possibility that the driver has consumed alcohol in the previous 15 minutes is not enough to prevent an officer from relying upon a fail result from an ASD device: R. v. Mastromartino, supra at para. 23;

(iv) The fact that a driver is seen leaving a bar moments earlier does not compel an officer to delay a breath demand in respect of an ASD device. It is only one circumstance to consider when the officer is deciding whether to delay the taking of a test: R. v. Mastromartino, supra at para. 23 and see R. v. Einarson, supra at para. 33;

(v) Officers are not required to ask drivers when they last consumed alcohol: R. v. Mastromartino, supra at para. 23; and

(vi) A flexible approach applies to the issue such that different officers may assess similar circumstances differently. The particular officer's assessment must be tested against the litmus of reasonableness: R. v. Einarson, supra at para. 34.

[48] As indicated above, the Crown has the obligation of establishing that the officer had reasonable and probable grounds to make the breath demand under s. 254(3) of the Code. As indicated above, it is common ground that if the fail result from the ASD can be reasonably relied upon, it supplies the reasonable and probable grounds to make the breath demand under s. 254(3). The fact that Constable Coutts knew there was open alcohol in the car did not change the honest belief she held as concerns her reasonable and probable grounds and she specifically stated this in cross-examination. The only issue is whether that view was objectively reasonable. In my view, it was objectively reasonable. Open alcohol in a car is not much different than a person leaving a bar and moments later being pulled over for a sobriety check. The law is clear that there is no bright line requirement that an officer must wait 15 minutes to make an ASD breath demand on a person seen leaving a bar. As far as I am concerned, the same is true as concerns open alcohol in the car.

[49] In this case, the defendant was with Constable Coutts for 12 minutes from 3:11 AM (when he was pulled over) to 3:23 P.M. (when he provided the fail in respect of the ASD breath sample). The open alcohol in the vehicle raises no more than a mere possibility that the defendant had consumed some of it in the three minutes prior to him being pulled over (thereby bringing his consumption of alcohol within the 15 minute window necessary to undermine the ASD breath sample analysis). The officer was told by the defendant that he had his last drink 30 minutes prior. She was entitled to rely on this statement notwithstanding his earlier denial that he had not been drinking.

[50] The argument that Constable Coutts did not know when the device had been calibrated and therefore could not rely on the ASD is also without merit in my view. Constable Coutts testified that she was trained on the ASD and had done a self-test prior to administering the test to Mr. McGauley. The self-test was successful. Nothing more was required in my view. The law is clear that even where there is no evidence as to when the ASD was last calibrated as long as the officer reasonably believes the device to be in good working order, it can be used to confirm or reject the officer's suspicion that the motorist has alcohol in their system. See for example R. v. Coutts, [1999] O.J. No. 2013 (C.A.) (per Moldaver J.A. for the Court) at para. 20; R. v. Mastromartino, supra at para. 79 and R. v. Topaltsis (2006), 214 O.A.C. 115 at paras. 8-9. In addition, I note that Constable Holmes said it was the practice of the Peel Regional police force to calibrate the ASD Alcotest 7410 devices every two weeks which exceeds the manufacturer's recommendations. While it is not necessary to my conclusion, Constable Holmes' evidence provides some other evidence that the ASD in this case was in fact properly calibrated.

[51] In summary, I consider that Constable Coutts had reasonable and probable grounds for the demand under s. 254(3).

[52] Even if I had found a s. 8 violation (which I have not), it would lead to a s. 24(2) Charter analysis. Defence counsel was most fair in his submissions that a s. 24(2) analysis in this case would not likely lead to exclusion of the breath sample evidence given that there was no serious state misconduct and the alleged s. 8 violation arose out of, in part, Mr. McGauley's untruthfulness when he gave different answers to whether he had been drinking.

Issue 2 – Has the Crown proved beyond a reasonable doubt that Mr. McGauley 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 s. 253(1)(b) of the Code?

[53] Mr. McGauley was driving when he was pulled over at 3:11 AM on June 4, 2013. The first breath sample taken pursuant to s. 254(3) was given at 4:20 AM, well within the two hour window provided for in s. 258(1)(c). The question is whether the presumptions of identity provided for in s. 258(1)(c) and (d.1) have been rebutted.

Legal Principles

[54] There is a considerable body of law concerning s. 258(1)(c) and (d.1). I will review some of the leading cases below.

[55] Section 258(1)(c) and (d.1) of the Code provide as follows:

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(a) (i) [Repealed before coming into force, 2008, c. 20, s. 3]

(b) (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

(c) (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(d) (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

(d.1) if samples of the accused's breath or a sample of the accused's blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both

(i) a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and

(ii) the concentration of alcohol in the accused's blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;

[56] The Supreme Court of Canada has held that s. 258(1)(c) and (d.1) infringe s. 11(d) of the Charter, the right to be presumed innocent until proven guilty. The reason is that they exempt the prosecution from having to establish the guilt of the accused beyond a reasonable doubt before the accused must respond: see R. v. St. Onge, 2012 SCC 57, [2012] 3 S.C.R. 187 at para. 85. The Supreme Court of Canada has held further that once s. 258(1)(c) is read down so that the evidence tending to show point need only show that the instrument was malfunctioning or was operated improperly, then this section constitutes a reasonable limit under section 1 of the Charter: see St. Onge at para. 101 and Greenspan, Rosenberg and Henein, 2015 Martin's Annual Criminal Code at page 552. Section 258(1)(d.1) requires no reading down and, as it stands, is a justified infringement under section 1 of the Charter of the right to be presumed innocent until proven guilty: see St. Onge, supra at para. 92.

[57] Section 258(1)(c) establishes a presumption of accuracy of the results as well as a presumption of identity between the results at the time of the test and the time of the alleged offence. Section 258(1)(d.1) establishes a so-called "second presumption of identity". It provides that where there is a reading of more than 80 mg of alcohol in 100 mL of blood, it is proof that at the time of the alleged offence the blood alcohol concentration exceeded 80 mg. This proof applies in the "absence of evidence tending to show" that the accused's consumption of alcohol was consistent with both a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time of the offence and which is also consistent with the concentration of alcohol in the accused's blood at the time the sample or samples were taken. Section 258(1)(d.1) provides for the so-called "last drink" defence. It places an evidentiary burden on the accused: St. Onge, supra at paras. 91 and 94.

[58] The terms "evidence tending to show" and "evidence to the contrary" (which appeared in an earlier statutory version of s. 258(1)(c)) speak to the same standard of proof that must be met by the accused to rebut the presumptions in s. 258(1)(c) and (d.1). They both mean evidence sufficient to raise a reasonable doubt: St. Onge, supra at para. 16.

[59] When an accused person challenges the second presumption of identity contained in s. 258(1)(d.1), they are not challenging the accuracy of the results. Rather, the accused argues that they consumed alcohol shortly before or shortly after the alleged offence and as a result the accused argues that his blood-alcohol did not exceed 80 mg at the time of the alleged offence. To properly advance this defence, the accused must also point to evidence tending to show that the test results are consistent with the alleged consumption of alcohol by the accused. This is sometimes referred to as the "last drink" defence: St. Onge at paras. 83-84 and para. 91.

[60] The Supreme Court of Canada has stated that the presumption contained in s. 258(1)(d.1) is based on common sense and the usual behavior of drivers who generally do not drink sufficient quantity of alcohol either just before or just after being pulled over by police so as to alter the breath sample results. The Supreme Court has stated that the cases in which a defence under s. 258(1)(d.1) will be raised will be "rare": St. Onge, supra paras 90-91 and 95. Section 258(1)(d.1) places an evidentiary burden on the accused to rebut the statutory presumption (St. Onge supra at 94). The Supreme Court has stated that the presumption "makes it necessary for the accused to testify" (St. Onge, supra at para. 94 and 96). In my view, it will not always be the case that the accused has to testify as the accused might be able to rebut the presumption through the testimony of other witnesses who could testify as to the accused's drinking patterns in or around the time of the alleged offence.

[61] The Ontario Court of Appeal has dealt with the question of bolus drinking in a different context, namely where the presumption of identity does not apply (because the first sample is taken outside the two hour window) and the Crown is called upon to prove the underlying assumptions in an expert toxicologist report with one such assumption being no bolus drinking (R. v. Paszczenko; R. v. Lima (2010), 2010 ONCA 615, 103 O.R. (3d) 424 (C.A.) (the "Lima" case). In that context, the Court of Appeal in Lima stated that the "no bolus drinking" assumption is largely a matter of common knowledge and common sense as to how people behave (at para. 29).

[62] In some cases, the Ontario Court of Appeal has characterized the amount of alcohol that would have to be consumed to support a bolus drinking defence as ranging from "unusual" to "preposterous": see R. v. Grosse (1996), 29 O.R. (3d) 785 (C.A.) at paras. 14 and 15. 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": Lima at paras. 31-32 referring to R. v. Hall (2007), 2007 ONCA 8, 83 O.R. (3d) 641 at para. 20.

[63] In considering an earlier version of the statutory presumption in s. 258(1)(c) which contained the term "evidence to the contrary" as a basis for rebutting the presumption of identity, the Supreme Court of Canada made it clear that in order to rebut the presumption the "evidence to the contrary" had to be believed. If the evidence to the contrary was not believed, the presumption would not be rebutted. Furthermore, there is no middle ground and the second branch in the W.(D.) formula has no application. Evidence to the contrary that is not believed does not rebut the presumption and does not raise a reasonable doubt: see R. v. Boucher (2006), 2005 SCC 72, 202 C.C.C. (3d) 34 (S.C.C.) at paras. 28-29 and R. v. Campbell (2007) 46 M.V.R. (5th) 291 (Ont. Sup. Ct) (per Durno J.) at para. 39. It is my view that the same must be true of "evidence tending to show" contained in s. 258(1)(c) and (d.1), namely that the evidence must be believed to rebut the presumption and raise a reasonable doubt and that the W.(D.) formula has no application in the analysis as to whether the presumptions have been rebutted.

[64] Finally, the Supreme Court of Canada has also considered what type of evidence is capable of rebutting the statutory presumption under s. 258(1)(d.1). In R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397, the Court considered whether "straddle evidence" could rebut the presumption. Straddle evidence means evidence that the accused's blood alcohol concentration may have been over or may have been under the legal limit at the material time depending upon the accused's actual rates of absorption and elimination: see Gibson, supra at para. 1. In Gibson, four of the nine judges stated categorically that straddle evidence could not rebut the presumption (see paras. 31-32). Three other judges in the case indicated that straddle evidence will rarely have sufficient probative value to rebut the presumption (see Gibson, supra at para. 55) but left open the possibility that it might. Two other judges of the Court dissented, indicating that straddle evidence could raise a reasonable doubt: see Gibson, supra at para. 84.

Application of the Legal Principles to the Case at Bar

[65] There is no dispute that the Crown has established that the basic requirements for the prima facie application of the presumptions in s. 258(1)(c) and (d.1) have been made out. Among other things, the samples were taken as soon as practicable and the first sample was taken not later than two hours after the offence was alleged to taken place. The issue in this case is whether the presumptions have been rebutted. Specifically the question is whether the accused has rebutted the presumption in s. 258(1)(d.1). In particular, has the accused raised a reasonable doubt by pointing to "evidence tending to show" that the accused's consumption of alcohol was consistent with both a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol at the time of the offence (at 3:11 AM) and was consistent with the blood alcohol readings from the Intoxilyzer 8000C at 4:20 AM and 4:42 AM.

[66] The defence submits that a reasonable doubt has been raised based on a two-pronged argument. First, the defence submits that the evidence establishes that there was bolus drinking of the Kracken rum (approximately 8 ounces) by Mr. McGauley immediately before being pulled over with very little alcohol having been consumed prior to that time (one glass of beer a significant time earlier at the strip club). Second, the defence submits that on these facts the expert report establishes that it is impossible to say if Mr. McGauley's blood alcohol level was more or less than 80 mg of alcohol in 100 mL of blood at the time of driving.

[67] An expert's report can be given no weight if the underlying facts of the report are not established (R. v. Paszczenko; R. v. Lima (2010), 2010 ONCA 615, 103 O.R. (3d) 424 (C.A.) at para. 21). Accordingly, the Court must determine the disputed factual question as to Mr. McGauley's consumption of alcohol on June 3 and 4, 2013. The defence submits there was bolus drinking by Mr. McGauley and the Crown disputes this evidence.

[68] I have concluded that Mr. McGauley and Mr. Rusiak were not truthful with the Court when they testified that the three friends consumed 24 to 26 ounces of the Kracken rum approximately equally between them in the 10 to 15 minutes before being pulled over. My reasons for this conclusion are as follows:

(i) I start with Mr. McGauley's evidence. As indicated in the brief summary of his evidence above, when asked the simple question by his lawyer in-chief "where were you" prior to being pulled over he gave a long soliloquy which appeared to the Court to be a recitation of a script he had developed rather than a true account of what had occurred. It was clearly a memorized statement of the entire evening in a nutshell which went far beyond answering the simple question he was asked, namely "where were you?". His answer included a detailed statement as to the amount and timing of his alleged alcohol consumption instead of saying where he was prior to being pulled over (the question he was asked);

(ii) The fact that someone has memorized what has occurred and restated that as his evidence is somewhat suspicious but does not necessarily mean that the evidence is not reliable. It must be asked whether the evidence makes any sense and whether it fits with other evidence. It is clear to the Court that Mr. McGauley's evidence makes no sense and was not anchored in any other evidence (other than Mr. Rusiak's evidence which I will address). Mr. McGauley gave absolutely no reason as to why they had waited until the night was over to quickly consume a 26 ounce bottle of rum and for him to have at least a third of it when on his own evidence he was the designated driver and had allegedly limited himself to a single glass of beer over an evening that spanned about 4 ½ hours (starting at around 10:30 PM and continuing until about 3 AM). There could have been reasons why one might wait and guzzle 26 ounces of alcohol just as the evening was ending but none was offered by any witness;

(iii) The Crown established that Mr. McGauley usually drank 6 to 7 beers when he drank. I appreciate that Mr. McGauley was not saying that he normally drank 6 to 7 beers and then got in the car to drive but he was saying that he normally drank beer in large quantities when he drank. He offered no reason as to why on the evening in question when his blood-alcohol readings reached 160 mg and 150 mg of alcohol in 100 mL of blood, he followed a different pattern from his usual practice of drinking beer and instead drank only one beer during the evening and then guzzled a large amount rum immediately before being pulled over. This is yet another reason as to why his evidence made no sense;

(iv) The context of Mr. McGauley's evidence (and that of Mr. Rusiak) is important. Both the Supreme Court of Canada and the Ontario Court of Appeal have observed that bolus drinking is rare, exceptional and contrary to the normal pacing of the consumption of alcohol. In this context, it is glaring that neither Mr. McGauley nor Mr. Rusiak offered any explanation as to why they drank the way they said they did on the night in question;

(v) Mr. McGauley's evidence is supported by his friend Mr. Rusiak. His evidence was delivered in a very curious manner with nothing being said in-chief regarding the guzzling of the rum in the parking lot at McDonalds. In fact, in-chief, when he was first asked if he himself was drinking the rum that night, he hesitated and needed to review his statement and then said "I believe so". He also said in-chief that he could not say how much of the rum Mr. McGauley had drunk. His position quickly shifted considerably in cross-examination when his prior statement was put to him which he had already reviewed prior to giving his evidence in-chief. Under cross-examination, Mr. Rusiak apparently remembered that they had started guzzling the rum in the McDonalds parking lot and had each drunk about 8 ounces of it immediately prior to them being pulled over. It also came out during his evidence in-chief that Mr. McGauley had telephoned him prior to the police taking a statement from Mr. Rusiak in the bolus drinking investigation undertaken approximately 18 months after the event. Mr. Rusiak said they did not discuss their evidence during that call but it is clear to me that the position is otherwise. The key to Mr. McGauley's defence would be how much he had drunk and when and there is no doubt in my mind that he and Mr. Rusiak discussed it and tailored their evidence so as to mount a bolus drinking defence. Mr. Rusiak seemed hesitant to support this position when he gave his evidence in-chief but, in my view, he felt he had no choice but to adopt his statement to police when it was put to him in cross-examination;

(vi) Mr. Rusiak's evidence was also suspect on the basis that he could not remember whether he himself had had a drink at Three Brewers but he was clear that he remembered that Mr. McGauley had drank nothing at Three Brewers. I find that his evidence on this point was absurd considering that he had only been asked about this issue 18 months after the fact. It appeared clearly designed to support the bolus drinking defence script of Mr. McGauley which would be that Mr. McGauley had very little to drink during the evening but had guzzled the 8 ounces of hard liquor immediately before being pulled over; and

(vii) Mr. Mazzariol did not support Mr. McGauley by telling the same story about the guzzling of the rum. It was his evidence that he had started to consume the rum back at Three Brewers, something that neither Mr. McGauley nor Mr. Rusiak mentioned. His memory was admittedly poor but one would have thought that he would have remembered guzzling 8 ounces of alcohol himself and having the driver of the vehicle he was in do exactly the same seconds before the police pulled them over. He had no memory of McGauley drinking the rum at all, let alone 8 ounces of it right before the police stopped them. It makes a lot more sense to the Court that the friends would consume the rum over the course of the evening rather than just as the evening was ending. This accords with the case law that indicates that common sense and common practice is that people normally drink while pacing themselves over an evening or other considerable period of time. Defence counsel submits that these observations by the Supreme Court of Canada and the Ontario Court of Appeal about the normal pacing of drinking do not necessarily apply to people who blow 160 mg of alcohol in 100 mL of blood. I do not accept that the observations from the Supreme Court and the Ontario Court of Appeal are so limited.

[69] In summary, for the reasons given I simply do not believe the evidence of Mr. McGauley and Mr. Rusiak that the rum was consumed in its entirety immediately before they were pulled over. While no WD analysis is necessary in the circumstances in accordance with the case law cited above, I wish to make it clear that if it was required I would have no reasonable doubt raised by the evidence of Mr. McGauley and Mr. Rusiak.

[70] Further, even if I had believed the evidence of Mr. McGauley and Mr. Rusiak, I would not have been satisfied that the expert report went far enough when it states "he may have been less than 80 mg. It is impossible to tell". This evidence does not meet the requirements for the rebutting of the presumption under s. 258(1)(d.1) which requires, among other things, evidence tending to show "a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol" (my emphasis). At best, this is similar to straddle type evidence which suggests that the reading might be above or might be below 80 mg. In the absence of a presumption, such evidence (assuming the underlying facts of the expert's report were proved) could raise a reasonable doubt but where the presumption prima facie applies, it would not rebut the presumption in my view.

Conclusion

[71] My conclusions may be briefly summarized as follows:

(i) The Crown has established that Constable Coutts had reasonable and probable grounds to make the breath demand both for the ASD device and the Intoxilyzer 8000 C. There was no s. 8 Charter violation; and

(ii) The presumptions contained in s. 258(1)(c) and (d.1) apply and have not been rebutted. In this regard, I have disbelieved the evidence of Mr. McGauley and Mr. Rusiak as to Mr. McGauley's consumption of alcohol on June 3 and 4, 2013. In the circumstances, there is no "evidence tending to show" that the accused's consumption of alcohol was consistent with a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 mL of blood and is consistent with the readings obtained from the Intoxilyzer 8000 C.

[72] Accordingly, there will be a finding of guilt with respect to the over 80 mg of alcohol charge contrary to s. 253(1)(b) of the Code.

Released: September 25, 2015

Justice Paul F. Monahan