Court File and Parties
Court File No.: Brampton/13-7450 Date: 2015-12-04 Ontario Court of Justice
Between: Her Majesty the Queen
- and -
Leslie McGregor
Before: Justice James Stribopoulos
Counsel:
- Ms. Emily Beaton, for the Crown / Respondent
- Mr. Douglas Lent, for the Defendant / Applicant
Heard: September 22, 2014, February 26, July 8, and October 23, 2015
Reasons for Judgment Released: December 4, 2015
STRIBOPOULOS, J.:
I. Introduction
[1] The defendant, Leslie McGregor, is charged with operating a motor vehicle with a blood alcohol concentration in excess of the legal limit, contrary to section 253(1)(b) of the Criminal Code.
[2] At 12:08 p.m. on June 3, 2013, the defendant drove his car into the parking lot of a commercial plaza in Brampton. A number of businesses operate from that plaza, including a restaurant licensed to sell alcohol and an LCBO store. After turning into the plaza, the defendant was stopped almost immediately by a police officer conducting a fixed-point sobriety check stop. Although the defendant denied any recent alcohol consumption, the officer's observations suggested otherwise. The officer therefore made an approved screening device (ASD) breath demand. A "fail" on the ASD resulted in the defendant's arrest and an approved instrument breath demand. The results of that further breath testing led to the charge before the court.
[3] Given the positions of the parties, there are a number of issues that must be addressed in deciding this matter, including:
Did the officer have legal authority to conduct a sobriety check stop on private property or was the detention of the defendant unlawful and a violation of his right not to be arbitrarily detained guaranteed by section 9 of the Charter?
Did the officer have the required grounds to make the ASD demand or was the demand unlawful so that the taking of the defendant's breath sample was a violation of his right to be secure against unreasonable seizure guaranteed by section 8 of the Charter?
If a constitutional violation is established, should any of the evidence be excluded pursuant to section 24(2) of the Charter?
Has the Crown discharged its burden of proving the voluntariness of the defendant's statements made to police inside the breath room?
Finally, has the Crown established the factual preconditions upon which the expert evidence of Dr. Corbett (the toxicologist) depends so as to prove the defendant's blood alcohol concentration exceeded the legally prescribed limit at the time of driving?
II. Issues and Analysis
[4] The issues raised by this case will be addressed in turn. As each is considered, I will set out the relevant facts and make any necessary findings.
A. Was the defendant's detention lawful?
[5] It is well settled that a driver who stops their vehicle at the direction of a police officer is "detained" for Charter purposes. Although the random detention of motorists either at fixed point check stops or by means of roving stops impinges on the right not to be arbitrarily detained guaranteed by section 9 of the Charter, the Supreme Court of Canada has upheld legislation authorizing such stops. The Court has held that where the police act under such legislative authority for the purpose of checking on driver sobriety, licensing, insurance and/or the mechanical fitness of the vehicle, the override of the right not to be arbitrarily detained is reasonably justified under section 1 of the Charter.
[6] Of course, section 9 of the Charter does not empower the police to carry out a detention. Rather, the Supreme Court has made clear that if the police detain an individual without legal authority then the resulting detention will necessarily be arbitrary and violate section 9 of the Charter. Accordingly, in order to comply with the Charter a detention must be authorized by law.
[7] In this case, there is no question that Constable Bell "detained" the defendant when he approached his vehicle as it came to a halt at a stop sign just inside the plaza parking lot. In the circumstances, with a uniformed police officer directing him to stop his car, Mr. McGregor would have reasonably concluded that he was not free to go. It is also clear that Constable Bell's purpose in detaining Mr. McGregor was to investigate if he was an impaired driver. The issue here is whether or not Constable Bell had the legal authority to carry out such a detention, given that the officer was located inside the plaza parking lot at the time and not on a public roadway.
[8] The Notice of Application served and filed by the defence before trial did not raise this specific Charter issue. Rather, it was advanced for the first time by defence counsel in the course of final submissions. Initially, at least, Constable Bell gave rather cursory evidence regarding the precise location and circumstances of the stop. Up until that point, it seemed clear that Constable Bell had stopped the defendant's vehicle inside the plaza parking lot. To this point, there was no evidence to suggest that the officer had actually observed the defendant's vehicle travelling on a public street before stopping him. When defence counsel first raised this issue in final submissions, the Crown applied to reopen its case in order to recall Constable Bell to give further evidence regarding the location and circumstances leading to the defendant being stopped. After hearing argument, I granted the Crown's application.
[9] In his argument, as framed before the Crown was granted leave to recall Constable Bell, Mr. Lent relied on cases holding that the authority of the police to stop motorists under the Highway Traffic Act to assess whether or not there is a basis to demand breath samples under the Criminal Code does not extend to private parking lots, as they do not qualify as a "highway" under the Act. This is because under the relevant provisions a police officer only has the authority to stop a "driver" and the meaning of that term is limited to "a person who drives a vehicle on a highway".
[10] The Court of Appeal has also made clear, however, that where a police officer observes a motorist travelling on a highway the officer's authority under the HTA to effect a stop continues onto the private property, like the parking lot of a plaza. This makes eminently good sense. If it were otherwise a motorist who was observed committing a traffic offence or who the police wanted to stop to check on their sobriety could all too easily evade police by turning into one of the many parking lots belonging to commercial establishments that line most urban roadways.
[11] On the record, as supplemented following the Crown's successful application to reopen its case, Constable Bell clearly observed Mr. McGregor's vehicle travelling through the intersection of Airport Road and Triple Crown Drive before he pulled into the plaza parking lot. Given this, the case law compels a conclusion that Constable Bell had the authority under the HTA to direct Mr. McGregor to stop his vehicle.
[12] In my view, it would also appear that there was authority at common law for Constable Bell to stop Mr. McGregor's vehicle inside the plaza parking lot. In R. v. Dedman, after applying the ancillary powers doctrine, the Supreme Court of Canada recognized that police have a common law power to randomly detain motorists to briefly check on their state of sobriety. Dedman involved a R.I.D.E. program conducted on a public roadway. To be sure, the potential privacy implications of permitting such check stops on private property raises additional constitutional concerns that were not operative in Dedman.
[13] In R. v. Dillon, Molloy J. was very much mindful of that distinction. Nevertheless, after applying the ancillary powers doctrine, she held that the police had the authority at common law to carry out a sobriety check stop in a parking lot of a commercial establishment without a need for particularized grounds. In so concluding, Molloy J. emphasized that the privacy expectations of a driver who is parked in a lot open to the public is not any greater than that of a driver who is parked at the curb on the street only a few metres away. As a result, she held: "once the officers are lawfully on the property, the principles in Dedman as to their common law powers are equally applicable in the parking lot as they would be on the adjacent street."
[14] Accordingly, I conclude that Constable Bell had the authority to detain Mr. McGregor inside the plaza parking lot in order to check on his sobriety. In my view, in the circumstances of this case, Mr. McGregor's detention was authorized both by the HTA and the common law. Given this conclusion, I reject Mr. McGregor's claim that his section 9 Charter right not to be arbitrarily detained was violated.
B. Did Constable Bell have the required grounds to make an ASD demand?
[15] A warrantless search or seizure is presumed to violate section 8 of the Charter. To displace that presumption the Crown bears the burden of establishing, on a balance of probabilities, that a search or seizure was authorized by law, that the law itself is reasonable, and that it was carried out in a reasonable manner. These requirements have equal application to the taking of breath samples in response to a breath demand, which amounts to a "seizure" for section 8 Charter purposes.
[16] In this case there is no issue with respect to the reasonableness of the relevant statutory provision (subsection 254(2)(b)) or the manner in which the breath samples were taken. The question is whether the lawful preconditions for making an approved screening device demand were established. In other words, whether Constable Bell had the required "reasonable grounds to suspect" that Mr. McGregor had alcohol in his body at the time of the roadside demand.
[17] On behalf of Mr. McGregor, Mr. Lent argues that the Crown has failed to discharge its burden of demonstrating that Constable Bell possessed the required reasonable grounds to suspect that Mr. McGregor had alcohol in his body when he issued the approved screening device demand.
[18] After stopping Mr. McGregor, Constable Bell noted that his eyes were bloodshot and watery. In speaking with him, the officer also detected the odour of an alcoholic beverage on Mr. McGregor's breath. At that point, the officer directed Mr. McGregor to pull over and asked him to step out of his car. Constable Bell then read him the approved screening device breath demand. After readying the ASD, Constable Bell asked Mr. McGregor when he last had alcohol in his mouth, to which he responded: "yesterday afternoon, 1:00 p.m." Constable Bell then presented the device to Mr. McGregor who furnished a breath sample. Mr. McGregor's breath sample registered a "fail" on the ASD, indicating to Constable Bell that he had a blood alcohol concentration greater than 100 milligrams of alcohol in 100 millilitres of blood. In response, Constable Bell concluded that Mr. McGregor was operating a motor vehicle with excess blood alcohol and he placed him under arrest for that offence.
[19] When he initially testified regarding the circumstances preceding the ASD demand, Constable Bell failed to explain why he had made the demand when he did. However, later in his evidence, in describing the grounds for breath testing that he shared with the qualified breath technician (Constable Leonardo), he explained that because of Mr. McGregor's bloodshot and watery eyes and the odour of alcohol on his breath, he: "formed the suspicion he was operating a motor vehicle with alcohol in his body".
[20] During cross-examination, Constable Bell acknowledged that before issuing the ASD demand the only observations he had made indicative of Mr. McGregor having consumed alcohol were his bloodshot and watery eyes and the odour of alcohol on his breath. There were no other apparent indicators of potential impairment or alcohol consumption. So, for example, the officer had not noted any bad driving on Mr. McGregor's part before he was stopped. In addition, Mr. McGregor's face was not flush. His pupils appeared normal. His speech was not slurred. He had no apparent difficulties with his balance, his coordination or his motor skills. On a pre-printed form used in impaired driving investigations by the Peel Regional Police Service, where an arresting officer is asked to assess the overall affects of alcohol or drugs on the subject, in the case of Mr. McGregor, Constable Bell had marked the box for: "apparently, none". Given all of this, Constable Bell frankly conceded that the failed ASD breath test actually came as a "surprise" to him and acknowledged that based on his observations he would not have guessed this would be the result.
[21] In arguing that Constable Bell lacked the required grounds to make an ASD breath demand, Mr. Lent emphasizes the fact that Mr. McGregor was simply not showing any indicators of impairment or even of alcohol consumption. In that regard, he argues that the only factors relied upon by Constable Bell, bloodshot and watery eyes, and an odour of alcohol on Mr. McGregor's breath, can be explained by causes other than alcohol consumption. For example, a driver could have bloodshot and watery eyes simply because they are tired. In addition, Mr. Lent submits that the recent use of lozenges or mouthwash could cause a driver's breath to smell of alcohol.
[22] In assessing Mr. Lent's submission, it is important to remember that in the context of 254(2)(b) a peace officer is not required to have reasonable suspicion that a driver is in fact impaired. Rather, the question is simply whether the officer has reasonable grounds to suspect that a driver has some alcohol in his or her body.
[23] Reasonable suspicion means, "something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds". As the Supreme Court of Canada has explained, "reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts" but "reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime." According to the Court the standard, "derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny."
[24] In assessing whether or not the reasonable suspicion standard was met, a reviewing court must have regard to the "totality of the circumstances". The assessment, "must be fact-based, flexible, and grounded in common sense and practical, everyday experience". Although the standard requires that the police take all factors into account in deciding whether or not the standard was satisfied, this "does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations."
[25] Returning to the circumstances of this case, I accept Mr. Lent's submission that watery and bloodshot eyes, and even the odour of alcohol on a driver's breath, could possibly be caused by something other than the presence of alcohol in a driver's body. That said, I think it would defy common sense to discount the presence of alcohol in an individual's body as the more probable of potential explanations. No doubt, it is for that reason that the Court of Appeal has previously held that the odour of alcohol on a driver's breath, standing alone, is sufficient to give rise to a reasonable suspicion that a driver has alcohol in his body.
[26] Accordingly, in all of the circumstances, I am satisfied that the Crown has discharged its burden of demonstrating that Constable Bell had the required grounds to issue an ASD demand. In short, I accept that because of Mr. McGregor's bloodshot and watery eyes and the odour of alcohol on his breath, Constable Bell reasonably suspected that Mr. McGregor had alcohol in his body before the ASD demand was issued. I have therefore concluded that Mr. McGregor's breath sample was lawfully seized at the roadside and his section 8 Charter right to be secure against unreasonable seizure was not violated.
[27] Given that I have rejected both of Mr. McGregor's Charter claims, it is unnecessary to consider whether any of the evidence should be excluded pursuant to section 24(2). As a result, I will move directly to considering whether the Crown has discharged its burden of proving that Mr. McGregor's statements inside the breath room were voluntarily made.
C. Has the Crown proven the voluntariness of the breath room statements?
[28] The law in this area is well established. The admission of a defendant's statements to a "person in authority" requires the Crown to prove, beyond a reasonable doubt, that, in light of all of the circumstances, the statement was voluntary. "Voluntary" means the defendant made a free choice to speak, rather than having his/her will overborne by threats or promises, oppressive circumstances or a lack of an operating mind. "Voluntary" can also mean the absence of police trickery that unfairly denies the defendant his or her right to silence or which is of such a nature that it would shock the community.
[29] With respect to the potential influence of threats or promises, the concern is that these could create a hope in a defendant that there would be some advantage gained by making a statement. However, not every promise vitiates voluntariness: as the Supreme Court has instructed, the existence of a quid pro quo is the most important consideration.
[30] In this case, Constable Bell was the only police officer who was called by the Crown at trial. The Crown also played the video recording from inside the breath room, where Mr. McGregor interacted with both Constable Bell and the qualified breath technician, Constable Leonardo. The video recording captures the events inside the breath room in their entirety. Importantly, the defence has conceded that nothing said or done by Constable Leonardo would serve to call into question the voluntariness of the statements made by Mr. McGregor once he was inside the breath room.
[31] Constable Bell gave detailed evidence regarding his interactions with Mr. McGregor from the moment he stopped him inside the parking lot to the point at which he delivered him into the custody of Constable Leonardo inside the breath room. Constable Bell testified that he was polite throughout his dealings with Mr. McGregor, and he specifically denied ever making any threats or promises to him. Similarly, Constable Bell described Mr. McGregor as being cooperative, polite and considerate throughout their time together.
[32] After arresting Mr. McGregor, Constable Bell asked him if he had any injuries to his arms, shoulders or back. Mr. McGregor told Constable Bell that he had shoulder problem and because of this the officer handcuffed him with his hands to the front rather than behind his back. After that, the officer searched him before apprising him of his rights to counsel. When asked if he wanted to call a lawyer, Mr. McGregor responded, "I suppose so." At that point Constable Bell proceeded to give Mr. McGregor the primary common law caution, specifically informing him that he was not obliged to say anything and warning him that anything he did say could be used in evidence. When asked if he understood the caution Mr. McGregor responded, "yeah". Constable Bell then proceeded to read Mr. McGregor the approved instrument breath demand. Following that, the officer placed him in the rear of his police cruiser and they departed for 22 Division at 12:23 p.m.
[33] Constable Bell and Mr. McGregor arrived at 22 Division at 12:39 p.m. Following their arrival, they went to the booking area. Once there, Constable Bell placed a call to duty counsel at 12:43 p.m. and left a message for a return call. While they waited for duty counsel to call back, Constable Bell searched Mr. McGregor again, to ensure that there was nothing left in his pockets that had been missed at the scene of his arrest. Mr. McGregor ultimately spoke with duty counsel from 1:01 p.m. until 1:09 p.m. After that call, at 1:10 p.m, Mr. McGregor was taken to the breath room.
[34] Constable Bell was the officer who was primarily responsible for dealing with Mr. McGregor once he was at 22 Division, until he entered the breath room at 1:10 p.m. when Constable Leonardo took custody of him. Constable Bell testified that from 12:39 p.m. until 1:10 p.m., with the exception of the 8 minutes he was on the phone with duty counsel, Mr. McGregor was in the booking area. According to Constable Bell, the only other police officers who could have had contact with Mr. McGregor during this period were the cells officer or the booking sergeant. However, he maintained that he was present with Mr. McGregor throughout this period. He had no recollection of leaving his presence at any point. Nevertheless, during cross-examination, he conceded that it was at least possible that he could have very briefly left Mr. McGregor in the booking area with the cells officer and the booking sergeant. The Crown did not call either of these police officers to testify.
[35] As already noted, the events inside the breath room were audio and video recorded in their entirety. I therefore do not intend to detail everything that was said and done that is captured on the recording. Suffice to say, Constable Leonardo takes the lead throughout and his interactions with Mr. McGregor, both in terms of tone and substance, impress me as a model of fairness and civility. There are however a number of matters from the breath room recording that are noteworthy and deserve specific mention.
[36] First, at the very outset of his dealings with Mr. McGregor in the breath room, Constable Leonardo explains that everything is being recorded. He then goes on to tell Mr. McGregor that by law he is only required to provide breath samples and specifically tells him that he is not required to answer any questions. Mr. McGregor confirms that he understands this, and indicates that duty counsel told him the same thing.
[37] Second, I note that after confirming that Mr. McGregor had spoken with duty counsel, Constable Leonardo goes on to offer him the opportunity to speak with any other lawyer of his choosing. What follows, and ends up delaying the administration of the breath tests beyond the two-hour window that would allow the Crown to rely on the presumption of identity, is what can be fairly described as Herculean effort to facilitate contact with a lawyer of his choosing. These efforts ultimately yield success, and Mr. McGregor then leaves the breath room at 1:42 p.m. to speak with Michael Caroline, a defence lawyer, on the telephone. Mr. McGregor returns to the breath room at 1:51 p.m. and confirms that he had an opportunity to speak with Mr. Caroline.
[38] Third, at one point, when Mr. McGregor is on his cell phone speaking to his wife in order to track down Mr. Caroline's number, Constable Leonardo specifically cautions him not to say anything and reminds him that he is being recorded.
[39] Fourth, immediately after reading the formal approved instrument breath demand, Constable Leonardo proceeds to tell Mr. McGregor, in plain language, that he is not obligated to say anything and warns him that whatever he does say could be used as evidence against him in court. He specifically tells Mr. McGregor that he is not required to answer any questions. Mr. McGregor confirms that he understands all of this. Importantly, Constable Leonardo goes even further, telling Mr. McGregor: "I won't be offended if you don't want to talk to me".
[40] Finally, Constable Leonardo next advises Mr. McGregor that if he has spoken with anyone else, he wants him to clearly understand that he does not want that to influence him in making any statements. He specifically tells Mr. McGregor that he wants him to understand that whatever he chooses to say should be of his own free will. Again, Mr. McGregor confirms that he understands all of this.
[41] With the relevant events from inside the breath room now detailed, I turn to consider whether or not, on this record, the Crown has discharged its burden of proving the voluntariness of Mr. McGregor's statements inside the breath room beyond a reasonable doubt.
[42] On behalf of Mr. McGregor, Mr. Lent submits that the Crown has failed to discharge its burden. During argument, his principal submission was that the Crown's failure to call the cells officer and the booking sergeant gives rise to a reasonable doubt regarding the voluntariness of Mr. McGregor's statements inside the breath room. In that regard, he relied upon a decision in which a trial judge excluded a defendant's statements in an impaired driving case where there was evidence that police officers that had some dealings with the defendant before he entered the breath room were not called as Crown witnesses on the voluntariness voir dire.
[43] Subsequent to oral argument, Mr. Lent also brought to my attention a line of cases in which statements by a defendant had been ruled inadmissible on voluntariness grounds because they were obtained in the shadow of the approved instrument breath demand. These decisions are collected, and the concerns they highlight are concisely summarized, in R. v. Pomeroy, by Hill J:
…It is said, whether in terms of oppression or compulsion, the exercise of the right to choose freely whether to speak or not is, unintentionally or by design, easily confused or overborn by the co-existing compulsion to provide breath samples thereby rendering the utterances involuntary in the absence of a timely caution.
Given this concern, there are a number of cases which hold that before eliciting statements from a defendant who has been the subject of a breath demand, a police officer is first obliged to re-caution the subject.
[44] Although decisions of other judges adjudicating on the voluntariness of a suspect's statements to police are undoubtedly instructive on the sorts of concerns that should be borne in mind in assessing whether the Crown has discharged its burden, it would be wrong to read such decisions as establishing categorical rules that must be rigidly applied. As the Supreme Court of Canada explained in R. v. Oickle:
… The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over‑ and under‑inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.
[45] Given this instruction, it is not at all surprising that the case law has moved away from an approach in which the failure of the Crown to call each and every police officer who had any contact with a suspect however fleeting would be fatal to proving voluntariness. In short, "[e]ach case turns on its own facts. A flexible rule designed to examine the role of any police officer with real investigatory or custodial contact generally promotes meaningful scrutiny of relevant governmental conduct."
[46] Similarly, the cases dealing with the questioning of a breath test subject following the issuance of an approved instrument demand also reject the application of any hard and fast rule regarding the need to re-caution before questions are posed. In summing up the effect of the relevant cases, Takach J. explained:
There is no absolute requirement that breath technicians re-caution accused persons prior to asking the questions in the Alcohol Influence Report. However, failure to do so may well result in an adverse finding and the exclusion of the answers thereto.
[47] Returning to the issue at hand, the question is whether the Crown has proven beyond a reasonable doubt that Mr. McGregor's statements inside the breath room were voluntary. In this case, based on the evidence before me, the failure of the Crown to call the cells officer or the booking sergeant simply does not give me any reason to doubt the voluntariness of Mr. McGregor's statements inside the breath room. At its highest, the evidence suggests that it was possible that the cells officer or booking sergeant may have been alone with Mr. McGregor very briefly in the booking hall. The notion that these officers, who had no direct involvement in this routine drunk driving investigation, would have made a threat or promise to Mr. McGregor in order to induce him to make statements inside the breath room strikes me as rather incredible.
[48] Further, when I consider all of the circumstances, including the fact that Mr. McGregor was given the primary common law caution at the time of his arrest, spoke to duty counsel and then a second criminal defence lawyer (Mr. Caroline), was repeatedly cautioned once inside the breath room that he was not obligated to say anything or answer any questions, had that same caution repeated again after the formal breath demand was read to him, was given the secondary common law caution, combined with the exceedingly polite tone that pervaded the entirety of Constable Leonardo's interactions with Mr. McGregor inside the breath room, I simply have no reasonable doubt that when Mr. McGregor spoke inside the breath room he did so voluntarily. In short, I am satisfied beyond a reasonable doubt that when Mr. McGregor answered the questions that were put to him, he made a free and voluntary, albeit ill-advised, decision to do so. Accordingly, I have concluded that Mr. McGregor's statements inside the breath room are admissible.
D. Did the Crown establish the factual preconditions for the toxicologist's opinion evidence?
[49] Given delays occasioned by efforts to put Mr. McGregor in touch with counsel of his choosing, the breath samples in this case were not collected within the two-hour window that would permit the Crown to rely on the presumption of identity. As a result, in an effort to prove that Mr. McGregor's blood alcohol concentration would have exceeded the legal limit at the time of driving the Crown called Dr. Corbett, a forensic toxicologist.
[50] Dr. Corbett was qualified to give expert opinion evidence in the field of forensic toxicology and testify regarding the absorption, distribution, and elimination of alcohol in the body. Beyond his viva voce testimony, a report prepared by Dr. Corbett was also made an exhibit at trial.
[51] In essence, based on a number of assumptions, Dr. Corbett gave evidence that would support an inference that at the time of interest (12:08 p.m. to 12:11 p.m. on June 3, 2013) Mr. McGregor's blood alcohol concentration would have been between 193 to 238 milligrams of alcohol in 100 milliliters of blood. Based on my review of his evidence, those assumptions include the following:
A truncated Intoxilyzer 8000C measurement of 190 milligrams of alcohol in 100 milliliters of blood at 2:33 p.m. on June 3, 2013, with time of interest being between 12:08 p.m. and 12:11 p.m. that day;
That there had been no consumption of alcohol between the time of interest and the time of the Intoxilyzer 8000C measurement;
A rate of elimination of alcohol for Mr. McGregor from 10 to 20 milligrams of alcohol in 100 milliliters of blood per hour;
Allowance of a plateau for (i) the time frame from the Intoxilyzer 8000C subject test result to the time of driving, or (ii) two hours, whichever is less, using the lower rate of elimination of alcohol;
That there has been no significant consumption of alcohol just prior to the time of interest. Doctor Corbett also gave evidence regarding the amount of alcohol that would need to be consumed if the subject was 80 milligrams of alcohol in 100 milliliters of blood an instant before the time of interest in order to give rise to the Intoxilyzer 8000C measurements in this case. Here, Dr. Corbett calculated that a 58 year old male, weighing 141 pounds and standing 5'6" tall, would need to have consumed 4 drinks, i.e. 12 fl. oz of beer (5% alcohol by volume), 5 fl. oz. of wine (12% alcohol by volume), or 1.5 fl. oz. of liquor (40% alcohol by volume) in order to give rise to the Intoxilyzer 8000C measurements in this case.
[52] Doctor Corbett testified that when it comes to the calculation of the projected range of an individual's blood alcohol concentration at the time of interest, their gender, age, height and weight play no real role in the calculation. Some of these variables are, however, relevant when calculating the amount of alcohol an individual would need to consume if they were at 80 milligrams of alcohol in 100 milliliters of blood an instant before the time of interest in order to give rise to the Intoxilyzer 8000C measurements. According to Dr. Corbett, age plays no real role, but weight could occasion a slight difference.
[53] It is well established that before a trier of fact can rely upon an expert witness's opinion, the facts upon which the opinion is based must be found to exist. That said, there is no obligation to prove assumptions that fall within the scope of the expert's field and that draw on learning from within his or her discipline. As a result, there is no need for case-specific evidence to establish assumptions 3 (elimination rate) and 4 (plateau). However, before any weight can be placed on Dr. Corbett's evidence, the Crown must prove the other preconditions upon which his opinion depends.
[54] To begin, Constable Bell's evidence establishes that Mr. McGregor was operating a motor vehicle between 12:08 p.m. and 12:11 p.m. on June 3, 2013. Further, the Certificate of a Qualified Technician, which was made an exhibit at trial, serves to establish that at 2:33 p.m. that day, Mr. McGregor furnished a breath sample that was analyzed by the Intoxilyzer 8000C and the result of that analysis was 190 milligrams of alcohol in 100 milliliters of blood.
[55] Further, Constable Bell's evidence establishes that Mr. McGregor did not consume any alcohol after he was stopped and before his breath samples were collected for analysis by the Intoxilyzer 8000C. The officer searched Mr. McGregor at the roadside, and searched him even more carefully back at the police division. He had no alcohol in his possession and therefore no opportunity to consume alcohol following his arrest and before breath testing took place.
[56] In my view, the remaining assumptions upon which Dr. Corbett's opinion depends are proven by Mr. McGregor's own statements from inside the breath room and from the application of common sense. He told Constable Leonardo that he was 5'6" tall, and weighed 141 pounds. He also denied having any open alcohol in his car. Finally, Mr. McGregor reported that before being pulled over he had been at work and had slipped away to get something to eat.
[57] When speaking with Constable Leonardo, Mr. McGregor maintained that he had not had any alcohol to drink since 1:00 p.m. the preceding day. Clearly, given Mr. McGregor's blood alcohol readings, this was a lie. Nevertheless, it is noteworthy that Mr. McGregor did not suggest to Constable Leonardo that he had consumed a substantial amount of alcohol just before being stopped by Constable Bell. No doubt, given Mr. McGregor's blood alcohol readings, he must have had a considerable amount to drink on the morning of June 3, 2013. Nevertheless, given all of the circumstances, including the fact that he did not have any open alcohol in his car or any alcohol in his possession when he was searched following his arrest, I have no doubt that Mr. McGregor did not consume 4 drinks immediately or shortly before driving. This conclusion is buttressed by the common sense inference that people do not normally ingest large amounts of alcohol just prior to, or while, driving.
[58] Consequently, I have concluded that the Crown has established the underlying assumptions upon which Dr. Corbett's expert opinion evidence depends. That evidence establishes that at the time of driving Mr. McGregor's blood alcohol concentration would have been between 193 to 238 milligrams of alcohol in 100 milliliters of blood.
III. Conclusion
[59] In summary, the Crown has proven beyond a reasonable doubt that on the early afternoon of June 3, 2013, Mr. McGregor was operating a motor vehicle with a blood alcohol concentration well in excess of the legal limit. I therefore find him guilty of the offence charged.
Released: December 4, 2015
Justice James Stribopoulos