Court File and Parties

File No: 190/14

Ontario Court of Justice (West Region, at St. Thomas, Ontario)

Between:

Her Majesty, The Queen

• and –

Michael Buehlmann

Endorsement of Justice M.P. O'Dea

Heard: March 31 & April 2, 2015

Decision Delivered: December 14, 2015

Counsel:

• George Christakos, for the Crown
• Stephen Price, for the Defendant

Charge

The accused is charged that on March 9, 2014 he operated a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood.

Overview

The substantive issue in this hearing is the application of section 258(1)(d.1) of the Criminal Code of Canada. An extensive range of Charter issues have also been argued. The Charter submissions will be addressed first and the facts of the case will be sequentially outlined under headings related to each. Facts related to the main issue will be outlined last.

Charter Issues

Arbitrary Stop: Section 9

While not argued, the section 9 breach was alleged to be a random stop. In context of section 8 and possible section 24(2) considerations, the alleged breach will be briefly addressed.

In the early morning hours of March 9, 2014, Sergeant Novacich of the Aylmer Police Department was patrolling in the vicinity of the Knights of Columbus Hall in that community where he knew a "Stag and Doe" was being held. He understood those attending would be drinking and he was monitoring vehicles as they left the parking lot.

A Volkswagon Beetle with two occupants pulled out and the officer followed it. He had not seen the occupants enter the vehicle and nothing unusual occurred before it pulled out of the lot. The Beetle drove a short distance without issue but after turning onto John Street North, the left wheels of the vehicle crossed the centerline of the roadway. The officer activated his emergency lights and the Beetle pulled over. The vehicle left the lot at 1:36 A.M. and the stop occurred at 1:38 A.M. which is the beginning of the accused's detention.

In context of investigating drivers of motor vehicles, the Highway Traffic Act gives police authority to randomly stop vehicles "for reasons related to driving such as checking the driver's license and insurance, his/her sobriety and the mechanical fitness of the vehicle": R. v. Nolet, 2012 SCC 24.

This power has limits in that the detention must be articulated as being for one of the purposes noted in Nolet and the articulated purpose must be objectively supported: R. v. Orbanski, 2005 SCC 37. However, this power does not require an officer to wait for an offense to be committed; there is a preventative aspect to the intent in the legislation and it doesn't require much in the way of objective support where an officer is detaining a person to check on his/her sobriety: R. v. Clarke.

On these facts, the officer had both statutory and common law authority to detain the accused to check on his sobriety for the simple reason that he had just exited an establishment where the officer honestly believed alcohol was being served: R. v. Wilson; R. v. Schell, [2006] S.J. No. 714 (C.A.).

I find Sergeant Novacich did nothing to exceed the authority described above and inasmuch, he did not act arbitrarily. There is no violation of section 9 of the Charter.

Reasonable and Probable Grounds: Section 8 and Screening Issues

The accused identifies three issues arising from the officer's use of the Approved Screening Device (ASD) that he believes diminishes the officer's ability to honestly rely on the fail as the sole ground to arrest and make the breath demand. They are his use of the device in close proximity to radios and cell phones; the temperature when the device was utilized; and, his failure to wait 15 minutes for mouth alcohol to clear.

Radios/Cell Phones

As the screening test was conducted, both Novacich and his backup stood close by and both were wearing personal communications devices that were, in effect, radios. Novacich had a cell phone on his person that I infer, although there was no evidence, was activated to receive calls.

The questions put to the arresting officer during cross-examination suggested he ought to be aware, from his training, that any activated radio or cell phone would interfere with the accuracy of a reading. Novacich did not recall any prohibitions respecting the use of radios or cell phones being explained in his training and did not consider the same the morning of the stop.

Aylmer police officers are trained in the use of ASD's by qualified breath technicians on the force. The technician in this case (who did not train Novacich) was questioned on this point in cross-examination which she acknowledged but qualified the general prohibition suggested by counsel with the fact that a radio cannot be "in use" as a person blows into the device and that she had never heard of a similar prohibition respecting cell phones. No evidence challenging these responses was offered, especially what she meant by "in use".

I infer "in use" means something more than being activated for use. In this case, there is no evidence a radio or communications device was in use as the test was conducted. There is no evidence that the simple fact that a communications device is activated but not in use may have had an adverse impact – it certainly had no impact on the officer's self-test.

This specific prohibition is not so notorious to allow me to impute that the officer ought to have had the requisite knowledge suggested. In my 15 years sitting in this jurisdiction and elsewhere across southwestern Ontario, this is the first time I have been faced with this issue so I am not surprised at the officer's lack of awareness of the point.

On all of the evidence on this issue, I find this specific prohibition did not affect and should not detract from the officer's honestly held belief respecting the result.

Temperature

The air temperature at 1:41 A.M. on the date in question, when the ASD was utilized, was between -5 and -12 degrees Celsius.

In his evidence, Novacich did not recall any prohibitions respecting temperature being explained in his training for use of the ASD. The technician in this case was also cross examined on this point and she testified that the C.F.S. recommends that a device not be used in a temperature colder than -5 degrees Celsius; however, she added and was not challenged that the prohibition related only to circumstances where the device had been in temperatures of -5 or colder for 30 minutes or more before use.

In this case, the device was out of the cruiser only a minute before the test was conducted. And, as with radios, this is the first time I have been faced with this specific prohibition.

In my mind, and irrespective of the training issue, considering that the device was stored in the cruiser until its use, this issue did not affect or detract from the officer's honestly held belief respecting the result.

Mouth Alcohol: 15 Minute Wait

This issue itself is relatively simple to define: every officer is trained that when administering an ASD in cases where the presence of mouth alcohol arising from recent consumption is suspected, he/she should consider waiting 15 minutes to allow the mouth alcohol to clear since the presence of mouth alcohol could skewer the screen result.

If the result is skewered, the officer's ability to rely on its accuracy may likewise be skewered.

Evidence: 15 Minute Wait

The relevant facts are as follows.

Novacich had made no observations prior to the stop supporting personal intoxication or impaired operation. It is clear the officer's decision to follow and stop the vehicle was based solely on where it was coming from. The evidence is clear that the officer anticipated the driver would have been drinking.

Novacich spoke to the accused through the driver's window. He smelled an "odor of alcohol" from within the vehicle and noted that the passenger was extremely intoxicated.

He saw a full can of Stella Artois beer in the center cup holder as well as a can of Red Bull energy drink.

He asked the accused while he was still seated in the vehicle if he had had anything to drink that night and the accused responded "no".

The officer suspected the accused had been drinking because his eyes appeared "glossy". He asked him to step out of the vehicle and the accused complied.

Outside at the rear of the accused's vehicle, Novacich stated "I was still getting an odor" and the accused "still denied consumption". This evidence was not clarified as to what specifically was said on each point.

Novacich told the accused he intended to administer a screening test and asked the accused to come to the cruiser. The accused complied.

Prior to this demand, Novacich acknowledged that during the period between the stop and the demand, he observed no conduct that could suggest personal impairment and the only observations respecting prior consumption was the odor and that the accused had come from the stag and doe.

Novacich took the approved device from his cruiser where it had been situate during his shift, checked the calibration information on it, tested it and concluded that the device was working properly.

When the officer said he was ready to present it to the accused, the Crown asked "did you question when he had his last drink?" and Novacich replied "no, because he denied prior consumption".

He presented the device to the accused who immediately blew and a fail registered at 1:42 A.M.

Analysis: 15 Minute Wait

Every case tendered by both parties support that an assessment under section 254(2) is fact specific as originally stated in R. v. Bernshaw. In the result, decisions in prior cases are infrequently of much assistance given distinguishing factors.

However, there are general propositions from prior cases that inform a court's considerations in this assessment.

It is a reasonableness assessment requiring a subjective finding of an honest belief in the conclusions drawn by an officer supported by objective facts: R. v. Bernshaw, supra; R. v. Einarson; R. v. Mastromartino.

The subjective conclusions an officer must consider initially is timing of driving and prior consumption of alcohol. If an officer reasonably suspects that an accused drove within the last three hours with alcohol in his body, the screen demand can be made.

Having made the demand, the officer is then required to administer the test "forthwith". Forthwith is not at issue today but it does not mean immediately but within a reasonable time having regard to the provision (section 254(2)) and having regard to the circumstances of the case: R. v. Bernshaw, supra.

One reason to delay administering the test given the circumstances of the case relates to the possible presence of mouth alcohol. In this circumstance, the officer is not concerned with prior consumption but recent consumption: R. v. Pierman.

An officer is not required to question a detainee to determine if there is something that might affect the accuracy of the sample nor is the officer required to accept what a detainee says on this point. The mere possibility that the sample may be inaccurate is insufficient to challenge the validity of the sample: R. v. Bernshaw, supra at paragraphs 80-84.

Beyond Bernshaw, a great many cases have considered this issue. Those referred to by the parties that I pay most heed to in respect of general propositions are R. v. Einarson; R. v. Nijar, [2007] O.J. No. 4903 (SCJ); and, two cases authored by Justice Durno of the Superior Court cited by the accused, R. v. Mastromartino and R. v. Wilson, [2014] O.J. No. 5339.

These cases state the test to be applied is whether the officer ignored credible evidence obvious to him at the time of the stop that reasonably supports the likelihood of consumption within 15 minutes of the stop. Speculation is discouraged.

Credible evidence that might tend to support the possibility of recent consumption may include leaving a drinking establishment immediately prior to the stop, alcohol in the vehicle, statements made by an accused and the strength of the odor of alcohol. These factors were highlighted by the accused in submissions.

The accused's submissions on this issue are extensive notwithstanding that the decision to administer the test and the test itself all occurred within a few minutes of the stop. The accused argues a lack of evidence of prior consumption; that the officer failed to "turn his mind to" or "put his mind to" or avert his mind to" the necessity for waiting for mouth alcohol to clear; use of the "magic words"; bad faith; wilful blindness; a want of reliability and credibility; the accused's evidence of recent consumption; whether a denial of consumption can be considered an admission of consumption; and, the officers' animus toward the accused.

The officer's evidence why he did not wait was succinct: he considered the need to wait based on his training but deemed the two denials of prior consumption to justify administering the test forthwith. This position was made clear in examination in chief and clearer in cross-examination.

The accused argues that the officer's position is inconsistent with prior cases which addressed the issue of denials of consumption and, since the officer did not look for other credible evidence, the test result may have been skewered and the reliance on the result should be deemed to be skewered. In this context, he argues the officer did not turn/put/avert his mind to an investigative obligation that carries constitutional value.

The issue arising from his decision is not whether the officer might have been wrong but whether he ignored credible evidence obvious to him at the time of the stop that reasonably supports the likelihood of consumption within 15 minutes of the stop.

In my mind, he did not.

On the entirety of the evidence, the officer was presented with a man who had clearly just left a function serving alcohol and who had an odor of alcohol on his breath; however, he did not exhibit any of the traditional indices of impairment personally or by his driving.

The odor of alcohol was not a strong one, merely noticeable to the smell.

The accused twice denied consumption.

The accused was compliant.

This evidence supports prior consumption but does not come close to supporting a possibility of recent consumption.

The accused argues the alcohol found in the vehicle he was driving should have alerted Novacich to the possibility of recent consumption. The only alcohol Novacich saw was the full can of Stella Artois and the can of Red Bull. The evidence does not support that anyone in the vehicle might have been consuming these items.

Another officer later located eight unopened cans of beer and an unopened bottle of wine along with an empty Stella can on the floor behind the driver's seat. This officer acknowledged these items were in "plain sight" on his search and the accused asks me to infer they would be in plain sight to Novacich.

There is no evidence supporting that Novacich should have seen them. His focus was the driver; he only looked in the driver's door toward the driver, the passenger and the center console after which he focused on the accused outside of the vehicle. While they might have been in plain sight to the second officer, I would be speculating on the evidence offered to find the arresting officer should have seen them.

Additionally, most of the alcohol located remained unopened; the stop occurred within minutes of leaving the function and to find that one of the occupants drank the empty can of Stella during the very short drive to the stop would again demand speculation.

As to statements by an accused, the accused argues his evidence during the substantive portion of the trial supports consumption within 15 minutes of the stop. This submission merits no weight since it constitutes after-the-fact information unknown to the officer and deserves no further comment. The accused made no statements at the roadside and gave no evidence during the voir dire.

The accused argues his alleged denial of prior consumption, for the purposes of the issue of waiting, is tantamount to an admission of recent consumption if the denial is not believed. This submission seeks to apply the reasoning of Justice N.A. Dawson of this court on September 13, 2010 in R. v. Boake.

I have read and re-read this portion of the decision and I cannot make sense of the rationale supporting the finding. It may bear some logic if the court was considering prior consumption but there is absolutely no rational connection to factors that might support recent consumption.

Her Honor's finding invites considerable speculation in that she effectively altered the evidence from a denial to a deemed admission. In context of waiting, all this did was to avoid the real question - whether a denial is enough to support not waiting.

The accused refers extensively to Boake in submissions. On a reading of the entire decision, it appears to me that the court confused issues related to prior consumption with those related to recent consumption and placed far too much emphasis on a general obligation to delay with evidence of prior consumption (which, in my mind, does not exist) rather than evidence tending to support the need to delay.

Nevertheless, as to the issue of waiting, the evidence Her Honor had to consider in Boake was far different than the evidence in this case. In Boake, the officer eventually acknowledged he perhaps ought to have delayed testing notwithstanding the denials whereas today, the officer clearly tells the court he had no need to delay because of the denials.

The submission respecting "magic words" does not merit much time. The combination of the odor and where the accused drove away from supports the officer's belief he had been "drinking at some point throughout the night" and this equates with a reasonable suspicion that there was alcohol in the accused's body. I am not aware of any other rational interpretation the words "drinking throughout the night" might convey in this context.

The accused spent considerable time in submissions arguing the officer did not "turn his mind to" the obligation to wait. As suggested earlier, the evidence is clear the officer considered his training and the need for waiting. That is enough, in my mind, to show he turned his mind to the issue. As argued, it appears the phrase attaches more to counsel's disagreement with the basis of the decision not to wait. This submission also defined the accused's submissions alleging wilful blindness, that is, the evidence the officer allegedly did not pay heed to.

The submission respecting reliability and credibility and bad faith arise from circumstances following the conclusion of the screen test and I will not apply possible findings from those circumstances to the circumstances leading to the testing. In my mind, the circumstances following the test have no rational connection to the circumstances leading to the test. Those leading to the testing were quite normal and without a hint of animosity or otherwise.

On these facts, I find that notwithstanding that the accused was followed directly from a drinking establishment, there is no other credible evidence obvious to the officer at the time of the stop that reasonably supports the likelihood of consumption within 15 minutes of the stop. The evidence clearly supports prior consumption but nothing obvious to the officer supports recent consumption.

I find denials of prior consumption, without anything more obvious to the officer, is sufficient to support the proposition in Bernshaw that he is not required to question a detainee to determine if there is something that might support recent consumption. The point in Bernshaw as in Einarson, Mastromartino and Wilson is that the officer's decision should be challenged only in the face of evidence obvious to him, not hypotheticals.

On the whole of the evidence respecting the administering of the ASD, I find the device used was an approved device, that the officer properly alerted himself to calibration issues, that he had reason to believe it was working properly, that no external factors existed to detract from his belief in the accuracy of the result and that it was reasonable for him to accept the fail registered and apply it to his grounds to make a demand under section 254(3).

I therefore find no breach of the accused's section 8 rights.

Rights to Counsel

Upon his arrest, the accused was promptly read his rights to counsel. On the evidence, I find that the rights as read at the roadside satisfy the directives in Bartle and Prosper.

Novacich testified that on arrival at the station, he put the accused in a cell, did a bit of related paperwork and without speaking to the accused again, he called duty counsel. When duty counsel called back, Novacich took the accused from the cell into a private room where a conversation of about 8 to 10 minutes occurred. There is no evidence whether he told the accused the purpose for taking him to the private room or who the accused would be speaking to.

The accused argues he was never told – in terms he could understand – that he had a right to speak with a lawyer of his choosing or that he had a right to choose a lawyer from a list or phone book. He argues the officer had no right to default to duty counsel without giving him those choices since he told the officer he wanted to "call a lawyer", which, he argues, means "anyone except duty counsel".

Novacich testified he gave the accused an opportunity to call a lawyer other than duty counsel but he based this evidence on his "usual practice". He could not corroborate his recollection through his notes or any other aid memoir. The subsequent conversation between the accused and the breath technician is of no assistance on this point.

There is no informational duty to read anything to an accused beyond the mandated wording for rights to counsel, particularly as it relates to alerting an accused to the possibility he might wish to contact a lawyer of his own choosing: R. v. Willier, 2010 SCC 37; R. v. Grouse, [2004] NSJ No. 346 (C.A.). However, it needs to be recalled that the mandated reading gives a detainee a choice – any lawyer he chooses or duty counsel. In the implementation of the right, police must respect that choice.

The accused advised at the roadside he wished to call a lawyer. In stating his wish, he said nothing that would reasonably lead the officer to believe he meant only duty counsel. At the station, the accused was immediately placed in a cell and the call to duty counsel was made without any further communication with the accused. In this regard, the accused was denied the right to speak with any counsel he chose.

The officer understood the importance of this choice given his evidence respecting his usual practice. It is therefore incumbent on this officer to not only follow his usual practice of reminding an accused of his right to choose but also to properly note the reminder to assure a court can accept that the practice was indeed followed.

A reminder is the only means possible to provide a reasonable opportunity to an accused to implement his choice in a meaningful way or for police to show that the accused did not actively pursue this opportunity.

While this aspect of implementing the accused's right to counsel may not, on its own, give rise to a section 10(b) breach, it has an impact at the finding stage when the ensuing incident is considered.

The breath technician testified within the voir dire. She gave viva voce evidence respecting her interactions with the accused in context of rights to counsel and, at the request of the Crown, a portion of the breath room video was shown of these exchanges. The critical exchange went as follows:

"You have been read your rights to counsel, is that correct?" to which the accused replied "yes maam."

"Did you understand what those rights were?" to which the accused replied "yes maam."

"Have you been in contact with a lawyer then?" and the accused replied "Well, duty counsel."

The technician responded "So you talked to a lawyer?" and the accused stated "well, if you wanna call duty counsel a lawyer, that's my view."

The accused laughed as he made this comment and the technician laughed as well.

The technician then said "so that's your personal opinion?" and the accused stated "yeah, you laughed so I assume you agree with me."

The technician did not reply to the last comment, the accused laughed again and the process continued.

Any statement by an accused suggesting confusion whether he had indeed spoken to a lawyer demands a further explanation by police. This sort of confusion goes to the root of both the informational and implementational duties defined within the right: R. v. Bartle, supra at pgph 192-93; R. v. Devries, 2009 ONCA 477.

The technician may have heard the comment before and she appears to have drawn her own conclusions as to meaning. But in my mind, the comment demands an explanation, at a minimum that duty counsel is indeed a lawyer as well as an inquiry whether the accused understands this fact.

I do not accept the technician's explanation equating the accused's comment with satisfaction with the advice given. To do so would beggar common sense.

On the evidence as a whole, I am of the view it is more likely as not that the accused's section 10(b) rights were breached by the conduct of both officers.

However, the accused has not satisfied me that evidence obtained following the breach ought to be excluded.

Section 24(2): R. v. Grant, 2009 SCC 32

Whether evidence tainted by a Charter breach should be excluded is answered on an assessment of facts focusing (1) the seriousness of the Charter-infringing conduct of the State; (2) the impact of the breach on the Charter-protected interests of the defendant; and, (3) society's interest in the adjudication of the case on its merits. These findings are then balanced to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

In context of seriousness of police conduct, the seriousness of their defaults is weighed on a spectrum from blameless to good faith to negligent to blatant disregard for the Charter rights of a defendant.

On these facts, the arresting officer could not even show he followed his own usual practice in reminding the accused of his ability to call any lawyer he chose. I find he deferred to duty counsel rather than being faced with the delay implementing lawyer of choice might entail. The breath technician ignored the possibility of confusion to move immediately ahead with the testing.

I find this conduct to be negligent in context of assuring public confidence that police will at least meet the minimum demands under section 10(b). Whether I should disassociate myself from the conduct described will depend heavily of the next step in the assessment. The reason for deferring to the second step is the immediate availability of duty counsel in all circumstances and the fact that the accused did not ask to speak with anybody else or complain about advice given after his comments to the technician.

The impact of the breach assesses the interests of the accused by identifying the right the Charter provision is intended to protect and balancing that right against the extent to which the breach actually undermined it.

The extent to which the right is undermined will be assessed on a spectrum from the fleeting to the technical to the profoundly intrusive so this assessment will, by necessity, consider the stage 1 findings. The importance of the right to counsel to the accused is always a given unless the evidence supports that the accused, by his or her conduct, abandoned some or all of its value.

In context of the interests of the accused, I find the breach had little, if any, undermining impact on him.

Two areas of fact will define impact: the effect on the accused when the officer defaulted to duty counsel and the meaning of his comments to the breath technician about duty counsel. In the absence of other evidence, impact on the accused in both of areas supporting a finding demand some comment from him and there was none.

There is no evidence in the voir dire that the accused was confused by or dissatisfied with the advice given in his conversation with duty counsel. There is no evidence of misunderstandings or misinformation flowing from that advice. The conversation lasted 8 to 10 minutes so it was not perfunctory. On the evidence as a whole, it cannot be found that the conversation with duty counsel did not, to the extent that such preliminary advice can, level the unequal playing field between the police and accused within this specific investigation.

The video with the breath technician, in context of the accused's apparent confusion about duty counsel, is quite equivocal. The accused laughed heartedly as he made the comment and to the uninformed, he appears to be joking. Only he could clear up the confusion and without his input, I find he was joking.

While he was likely joking in the video, counsel for the accused took great pains at trial to paint the role of duty counsel as a third world substitute to the role of counsel of choice notwithstanding that the highest court in the land finds the role of duty counsel more than adequately protects the importance of an accused's section 10(b) rights at the initial stage of an investigation. I find the accused's attitude as offensive as I found the dismissive attitude exhibited by police in this case. Both attitudes significantly diminish the confidence of the public in the justice system.

Society's interest in the adjudication of the case on its merits focuses the interests of the public in seeing that all criminal charges are adjudicated and at what point the appropriately informed member of the public would agree that the impact of a Charter breach outweighs that interest.

The appropriately informed member of the public would be rightfully concerned about the possibility of the accused's confusion respecting the implementation of his right and the possibility that he wanted to speak to a lawyer of his choosing; however, the informed member would be equally confused by the accused's silence respecting the impact on his later decisions in the face of such important issues to him. The same applies to his comments in the breath room. Balancing these two sides, factors underlying the section 10(b) claim would be significantly diminished in the eyes of the public and it would demand a trial on its merits.

In the end, I am of the view that since the accused did not take his rights all that seriously – while in custody or today - it would be inappropriate in the interests of public perception of the administration of justice to exclude the breath results.

The section 10(b) application is therefore dismissed.

Stay of Proceedings

In the course of cross-examination of Officer Novachich respecting the accused's right to counsel, the accused raised the officer's failure to repeat the right to contact any lawyer the accused might choose before the accused was taken to speak to duty counsel. The officer believed he had so alerted the accused to this right given his usual practice in impaired cases and when the officer was challenged that his notes were silent on this point, the officer mentioned that the station-wide audio/video system (independent of the breath room video) should show he had done so.

General disclosure demands had been made by the accused in a timely manner and the demand clearly covered any audio/video recordings of this accused at the station.

The officer was questioned about the functioning of the taping system and its preservation. The officer could not answer whether the tape had been destroyed (taped over) or whether it still existed. The matter was stood down while inquiries were made about the relevant tape. In the end, the tape no longer existed and the accused immediately filed his application for a stay.

Generally, a stay is a remedy of last resort, rarely granted because both the accused and the community are entitled to a verdict on its merits. A stay resulting from the Crown's failure to disclose relevant evidence is justified only if the non-disclosure irreparably prejudices the accused's ability to make full answer and defence or irreparably prejudices the integrity of the administration of justice: R. v. Dulude at paragraph 36 citing R. v. Bero; R. v. Leduc; and, R. v. O'Connor.

The accused has not satisfied me the loss of this video has had any effect on his ability to make full answer and defence. On the evidence, the only transaction the tape may be relevant to is whether the officer reminded the accused of his right to call any lawyer he chose. If the officer's belief was confirmed by the tape, it would have had some negative impact on the accused's section 10(b) Charter application. If the belief was not confirmed, the impact would have been neutral since I have already rejected the officer's recollection since it was not mentioned in his notes.

The accused complains this recording might have captured the accused's speech and physical symptoms and corroborated his claim that his speech and other symptoms were deteriorating due to the oncoming impact of the last drinks allegedly consumed just before driving. The breath room video was recorded about 15 minutes after the alleged exchange recorded in the hallway. The accused did not ask that it be shown in full for a similar purpose and the brief clip I saw did not suggest to my ear any deterioration in the accused's speech which, along with redder eyes, was the only deterioration alleged by the accused. In my mind, this is not enough to support anything but a speculative impact on the ability to make full answer.

The facts do not support that the integrity of the administration of justice has been prejudiced. There is no way the Crown could have been aware that any relevant transaction occurred that would have been captured outside of the breath room. The officer's mention of the tape was an afterthought and worded more as a possibility than a probability. The tape was recorded over but was not destroyed to avoid disclosure.

In my mind, this is far from the clearest of cases demanded in the citations above and the section 11 application for relief under section 24(1) is dismissed. The accused has not supported a section 24(2) remedy in submissions and that alternate relief is dismissed.

Substantive Issue: Section 258(1)(d.1) Defence

Last Drinks Consumed

This stream of evidence engages section 258(1)(d.1) of the Code. The defense is best described in R. v. St.Onge, 2012 SCC 57 at paragraphs 83 and 84 to include a situation where the accused does not challenge the functioning of the instrument or the accuracy of the readings but argues that as a result of excessive consumption immediately before driving, the alcohol so consumed had not yet absorbed into his system with the result that his blood alcohol content when he drove was below 80 milligrams.

To meet this defense, the accused is required to offer expert evidence respecting the ability, in his circumstances, to rely on the first reading generated by the approved instrument and that tends to show that he was below 80 milligrams at the time of driving.

The Crown argues that in addition to evidence tending to support the expert opinions, an accused must also show his decision to bolus drink was "unusual" in the circumstances. This will be discussed below.

Accused's Evidentiary Onus

Before reviewing the evidence on this issue, I will consider how it is to be assessed. Both sets of submissions on this point were extensive. The Crown's position, succinctly put, is that the accused's evidence has to be believed whereas the accused just as succinctly argues the test is limited to whether any of his evidence raises a reasonable doubt. The accused specifically argues that R. v. Boucher, 2005 SCC 72 does not require that his evidence must be believed – only that it raises a reasonable doubt.

I agree with the Crown's submission that Boucher specifically adopts at paragraph 28 that evidence to the contrary that is disbelieved will not neutralize the operability of the statutory presumption in question. In reaching this conclusion, the court relied on its prior decisions in R. v. Proudlock and R. v. Dubois. The court also later applied this finding in R. v. MacDonald & Gibson, 2008 SCC 16 at paragraph 18.

However, I also agree with the accused that both Boucher and MacDonald confirm that the standard of proof required to rebut the section 258 presumption is reasonable doubt.

These findings appear to be in conflict. In my mind, they are not.

The burden of proof respecting the application of a statutory presumption is always upon the Crown. As with any presumption in the criminal context, an accused has the ability to negate the presumption by evidence tending to support a contrary possibility. The evidence to the contrary an accused tenders will not be assessed on a persuasive burden; his obligation is to tender evidence which is sufficiently credible that it achieves enough probative value for consideration: R. v. Dubois, supra at p. 92. The probative evidence will then be evaluated on the reasonable doubt standard.

The Crown also suggests I cannot consider any of Dr. Ward's evidence until I accept the underlying evidence given by the accused whereas the accused takes the position that I can assess Dr. Ward's evidence in conjunction with all of the evidence of the accused.

Again, there is accuracy in both submissions. I cannot adopt Dr. Ward's opinion until I have accepted enough of the accused's evidence to apply it; however, not all of Dr. Ward's evidence was dependant on that given by the accused. His independent evidence can be considered in context of both the accused's credibility and reasonable doubt. Further, some of his evidence supporting the opinion may be probative as I consider the accused's evidence.

Last Drinks Evidence

In the accused's evidence, he said he attended the stag and doe with four friends. He did not intend to drive and one of these friends drove. I accept this evidence; however, I note there was no evidence of a plan before he left for the function stating how the accused intended to get home.

His friends, including Corey Plant, met him at his home around 9:00 P.M. where, between 9:00 and 10:30 P.M., they drank alcohol. According to the accused, he had two whiskeys and soda that contained about one and a half to two ounces of alcohol each.

I have no reason to reject that the accused had the two drinks; however, I do not accept his evidence respecting the quantity of alcohol in each drink.

The accused's party arrived at the stag and doe around 10:30 P.M. The accused spent most of the evening with Victoria Flint who had driven herself to the event in her mother's Volkswagon Beetle. I do not reject this evidence.

The accused purchased five drink tickets. Between 10:30 P.M. and 1:00 A.M., he testified he consumed two 4% and two 5% beers. He testified these beers were consumed "socially", that is, spread evenly over the three and a half hours. However, he testified that two of these drinks were gifts from others so that by 1:00 A.M., he had only used two of the five tickets he originally purchased.

He testified that around 12:55 A.M., they announced last call. He states that after this announcement, he went to the bar and used his last tickets to purchase three bud lights that, as he understood it, contained 4% alcohol by volume. He states that Flint gave him two beers she bought with tickets she had not used at some point after last call.

The accused testified that he consumed all five beers in rapid succession and after he consumed the last beer, he and Flint immediately left the building and went to her mother's car.

The accused testified he did not want to drive and proposed calling a cab but Flint refused stating she would not leave her mother's car at the hall. The accused stated he elected to drive because Flint was quite intoxicated; he inferred, but did not clearly state, that he believed she would choose to drive herself home.

Analysis: Last Drinks Defense

There is no challenge that at 2:49 A.M., the accused provided his first breath sample which registered a BAC of 130 milligrams of alcohol in 100 millilitres of blood. This result is accepted as accurate. Considering the Charter findings and the substantive evidence, I find the Crown has prima facie proved the elements of the offense alleged.

In my assessment of the accused's credibility, I will consider his sincerity, frankness, bias, evasiveness, demeanor and interest in the outcome in an effort to determine, generally, whether he is honestly trying to tell the truth.

The accused's position respecting his evidence is that it is capable of belief on its own strengths and is supported by the lack of any indicia of personal or driving impairment from the time Novacich first saw him until a point between the breath tests when he began to slightly slur his words and his eyes appeared red; the evidence of his friend who saw him carrying a number of beer glasses after last call; the circumstances under which he eventually drove; and that the BAC at the time of driving identified by Dr. Ward is consistent with the absence of indicia of impairment.

The Crown submits there are many reasons to reject the accused's evidence. He cites the fact that the accused ran from the arresting officer when the ASD fail was announced; the inconsistent information he gave to the breath technician about his drinking pattern as compared to his evidence at trial; the accused's decision to drive home in the face of his decision not to drive to the party; the failure of Victoria Flint to testify; and, that consuming the amount testified to in the time testified to is unlikely in the light of all the other evidence.

The accused argues in reply that I should give no weight to the fact that Victoria Flint did not testify since to do so places a persuasive burden on him.

When the fail was announced, the accused ran and there was a brief foot chase. The Crown questioned his reason for running and the accused gave four responses - because he was bored, or he panicked, or to avoid going to jail and getting into trouble or that even though he felt absolutely fine, he ran anyway.

Any one of these reasons might be afforded some level of credibility but in context of all four, the accused's inability to make up his mind directly speaks to his general credibility. He appears prepared to say whatever pops into his mind as suitable to an issue and that diminishes my ability to trust his evidence. The accused presented as uncertain how he ought to answer this very basic question with the result that he presented as evasive.

The accused is correct that the arresting officer did not observe him to slur his speech and the technician noted a "slight slur" and red eyes between the tests. The accused argues this supports an increasing level of impairment which in turn supports the bolus drinking alleged. However, the accused relies on the bald observations and the technician was not asked for any detail that might support some level of intoxication not previously noted. Dr. Ward agreed with the Crown that not everyone has the same definition of what slurred speech is. And, as I watched the accused on video just before the first test commenced, he presented as speaking normally.

Notwithstanding, I find observations (or lack thereof) of indicia of personal and/or driving impairment are not relevant to the issue of the level of the accused's blood alcohol content at any particular point in time. In R. v. Boucher at paragraphs 33 and 34, the court finds that the absence of symptoms of personal impairment is generally not sufficient to constitute evidence to the contrary in the absence of evidence respecting the accused's level of alcohol tolerance. Such evidence was not tendered today.

Corey Plant testified for the accused. He stated that following last call, he saw the accused carrying "two handfuls of drinks" as he walked away from the bar. He did not see where he took these drinks; he did not see the accused consume any of them; he did not see what was inside the glasses he was carrying; he did not indicate whether he saw Victoria Flint at or about the same time.

According to the accused's evidence set out below, he would have been carrying only three beers away from the bar when he saw Corey Plant and in this context, I have some difficulty with Plant's exaggerated meaning of "two handfuls". This exaggeration detracts from the credibility of the accused's narrative.

Further, even if I did accept Plant's recollection, it adds nothing to the critical issue – who drank what he was carrying. It is to be recalled that the accused showed no symptoms of recent consumption at the roadside whereas Flint presented as extremely intoxicated. This observation supports a real likelihood that Flint drank what was bought with the unused tickets independent of or together with the accused.

In regard to his decision to drive, there was in my mind considerable detail missing from the accused's narrative that would allow a credibility assessment of the issue.

The accused made the decision not to drive to the party at the outset and drove with friends. The accused did not say how he initially planned to get home and, if he intended to get a ride with the same group of friends, when he told them he would find his own way home. Either he or Plant could have filled this gap.

The accused testified that he wanted to call a cab but that Victoria Flint refused to leave her mother's car there for the night. He did not explain whether this conversation occurred before last call or after; and, if after, when in context of his consuming the five beers.

Considering the sequence of his evidence, the accused appears to suggest, but does not clearly say, that the discussion occurred in or on the way to the parking lot. In context of the accused's insistence he did not intend to drive, this appears quite late from the perspective of calling a cab. It is more logical it would have occurred when the five beers were laid out before him to be consumed.

Further, the accused offered no context to the alleged argument he claims he had with Flint about his driving. On the face of his evidence, there was no argument at all; only his immediate agreement to drive in the face of her statement she would not leave the car in the parking lot. Nothing he said supports that the discussion ever became an argument and, if it did, how he tried to reason with her or seek alternatives to his driving.

The accused argues his evidence cannot be discounted because he did not call Ms. Flint to testify. In context of a credibility assessment, I disagree. The accused's interest in the outcome in this proceeding is extremely high and some corroboration of his narrative would help to diminish the weight his self-interest carries. As well, all of the evidence about what Flint apparently said to him about her mother's car and about her (alleged) intent to drive herself is hearsay.

It is not clear, on the accused's evidence, how much time he actually had to consume five beers. He walked away from the bar with the three he bought at 1:10 A.M. but it is not stated how quickly thereafter he began to consume them. He also shortens his time for consumption when he advised that Flint bought beer with her last two tickets while he was in the washroom. I am asked to assume he had 26 minutes to consume the drinks but that is likely inaccurate when a trip to the washroom, an argument about driving and the time it takes to walk out of a roomful of friends, get to the car, get in and drive to the point where they were seen exiting the lot at 1:36 A.M.

The accused was not asked about his drinking habits and this detail is important in relation to the time he actually had to consume five beers.

On the evidence, I can only infer his drinking habit to be "social" in nature having regard to how he says he consumed the drinks at his home and his four beers between 10:30 P.M. and 1:00 A.M. In this regard, I have a real problem accepting a social drinker's capacity to consume five beers in what may be far less than 26 minutes without some physiological impact – at a minimum, a strong odor of alcohol observable within five minutes of his last sip of beer.

The accused answered the breath technician's alcohol influence questions. To the question "have you been drinking" the accused replied "a little bit". When asked what he had consumed that evening, the accused answered "five beers, Bud light, Blue light". When asked when he had his last drink, he replied "shortly before we left" and then advised it took him 15 to 20 minutes to consume the last drink.

This is significantly different from the accused's testimony at trial. The two most notable differences relate to the brand of beer he drank and how long he took to consume the last drink. At trial, the accused said that he only bought Bud light with his tickets and that he was given regular Budwiser beer by others. He was able to define the differing alcohol content of the beer he bought and that given to him by others based on the brand. Nowhere did he mention Blue light. As is otherwise obvious, he told us at trial he spent all of his last 15 to 20 minutes in the hall consuming five beers, not just one last drink.

On the whole, the accused did not present as either forthright or detailed in his presentation at trial. There were far too many critical inconsistencies between his evidence at trial and what arose the night of the stop. Most notably, he gave me just enough information to focus a fact but never enough to fully assess its credibility. My sense is that a lot of what he did tell me was with both eyes fixed steadily on the outcome of this hearing and neither focused on factual accuracy. In weighing the criteria supporting credibility, I am certain the accused was not honestly trying to tell the truth.

On that broad finding, the accused's evidence cannot be trusted. I find his evidence that he consumed five beers between 1:10 and 1:36 A.M. and drove only to prevent Flint from driving not to be credible and I reject it on that basis.

Bolus Drinking: Exceptional Behavior

The Crown's submits a "limited application" of the defence under section 258(1)(d.1) wherein all drivers alleging bolus drinking must, in tendering evidence to the contrary, show how their decision to bolus drink sets them apart from usual drivers in the circumstances.

This submission flows from comments by Madame Justice Deschamps at paragraphs 94 and 95 in St. Onge, supra where she concludes that the Legislative intent behind the section 258(1)(d.1) presumption is "based on the usual behaviour of drivers, who do not generally drink a sufficient quantity of alcohol to alter the results either just before or just after being pulled over by the police. It is in fact the exceptional behaviour of the accused, not the statutory presumption in the prosecutors favor under section 258(1)(d.1), that makes it necessary for the accused to testify".

I do not know what the Crown meant by a "limited application" to the defense or how he proposes the limitation should be applied. St. Onge doesn't help by defining when, if exceptional or unexceptional behavior is found, the finding is to be applied.

I do, however, believe the court in St. Onge fully intended to restrict the application of the defense. The discussions in St. Onge leading to this conclusion, particularly the discussions respecting the Carter defense, appear to suggest the Supreme Court did not want trial courts to allow an accused's pattern of drinking to become the defining element basing the section 258(1)(d.1) defense as had occurred in the application of the Carter defense. The court believed to do so would defeat the intent of Parliament.

My sense is that exceptional behavior will be assessed in two circumstances - having regard to a decision to bolus drink where an accused logically intended to drive afterward; or, on a decision to drive after the decision to bolus drink was made. The assessment would not consider exceptionality from the perspective of persons who would not normally drink and drive but from the perspective of those who would consume some quantity of alcohol with a view to remaining below the legal limit and then driving home.

Since I have rejected the accused's evidence respecting his bolus drinking as alleged and his subsequent decision to drive, it is not necessary to consider exceptionality.

If, however, I had to consider the issue, I would find the only apparent reason (on the evidence) that the accused decided to drink all five beers (if he indeed did so) was to not forfeit the value of the tickets he and Flint invested in at the beginning of the evening. In context of a decision to bolus drink, there is nothing exceptional about this decision. It is entirely consistent with the sort of behavior exhibited by most who would find it difficult to leave an establishment with expensive drinks on the table.

As to a possible (on these facts) subsequent decision to drive, the best the accused could achieve in evidence I could accept is that he drove because he believed he was more sober than his passenger. This is a frequent comment heard from persons explaining their decision to drive after drinking when pleading guilty. The explanation that "I felt fine", which the accused mentioned, is also a repetitive explanation heard. Neither is exceptional.

In the end, I find the accused has not rebutted the section 258(1)(d.1) presumption.

Conviction

I find the officer had sufficient reasonable and probable grounds to issue the breath demand which he did as soon as practicable. I am satisfied beyond a reasonable doubt that the breath tests were conducted within two hours of driving and as soon as practicable thereafter by a qualified technician; that the samples were received directly from the accused into an approved instrument operated by a qualified technician that the technician deemed the samples to be suitable; and, that the samples were analysed using the approved instrument.

I am satisfied beyond a reasonable doubt that on March 9, 2014 at 1:38 A.M., the accused operated a motor vehicle with 120 milligrams of alcohol in 100 millilitres of blood in his system and a conviction shall register.

Justice M.P. O'Dea