Court Information

Court File No.: Not provided

Date: December 17, 2015

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Seeram Kisten

Before: Justice Paul M. Taylor

Heard on: November 10, 12, 2015

Reasons for Judgment released on: December 17, 2015

Counsel

R. Levan — counsel for the Crown

H. Bassi — counsel for the defendant Seeram Kisten

Judgment

Taylor, J.:

Introduction

[1] A few minutes before midnight on July 6, 2014 Seeram Kisten was driving his car northbound on Airport Road, in the Region of Peel. His driving attracted the attention of two Peel Regional Police officers who were also driving northbound. As a result of their observations, they stopped Mr. Kisten and investigated him. They ultimately charged him with operating a motor vehicle with excess blood alcohol, and impaired operation of a motor vehicle.

[2] The trial was brief lasting a few hours over the course of two days. Mr. Kisten elected not to testify or call Defence evidence. No Charter issues were raised. The issues were substantive: has the Crown proven the impaired operation count beyond a reasonable doubt and is there any admissible evidence as to Mr. Kisten's blood alcohol concentration at the time of driving. The second issue has resulted in a somewhat novel argument by the Crown. Mr. Bassi, for the Accused has argued that the intoxilyser tests were not taken "as soon as was practicable"; the Crown concedes that the tests were not taken "as soon as was practicable". The result is that the Crown loses the twin presumptions of Accuracy and Identity contained in Section 258 of the Criminal Code. Normally this would be a fatal blow to the Crown's case. Occasionally the Crown's case is salvaged by the calling of an expert who can relate the blood alcohol level at the time of testing back to the time of driving. Mr. Levan has argued that I can take judicial notice of certain scientific facts and do the calculations myself. In short, he argues that even absent the presumptions the case has been proven beyond a reasonable doubt.

Analysis: The Applicable Legal Principles

The Impairment Issue

[3] In R. v. Elvikis, [1997] O.J. No. 234, Justice Hill of the Superior Court of Ontario sitting as a Summary Conviction Appeal justice wrote at paras. 24-29:

24 Impairment is an issue of fact which the trial judge must decide on the totality of the evidence.

25 If the evidence of impairment is so frail, when considered as a whole, as to leave the trial judge with a reasonable doubt as to impairment, the accused is entitled to be acquitted.

26 Circumstantial evidence as to impairment, advanced by the Crown, whether driving conduct, physical symptomology or physical test results, or some combination thereof, will have probative value on the issue of impaired ability to drive a motor vehicle, more or less, depending upon the nature and strength of the evidence adduced. Items of circumstantial evidence are not to be viewed in isolation but the entirety of the evidence must be considered in determining whether the prosecution has discharged his burden of proof.

27 The more minimal the driving misconduct, the fewer the existing classic signs of impairment, and, the better the achievements of the accused in any physical testing situation, the more difficult it may be for the trial court to conclude that the ability of the accused to operate a motor vehicle was impaired by alcohol at the time of the said operation.

28 If the evidence of impairment is sufficiently credible and probative as to establish any degree of impairment ranging from slight to great, the offence has been made out. In my view, this is the ratio of the judgment in R. v. Stellato, supra. The decision does not, however, stand for the proposition that the production of any evidence consistent with impairment, however minimal, requires the court to find the prosecution has discharged its persuasive burden of proving impaired operation of a motor vehicle. Such an approach impermissibly depresses the burden upon the Crown.

29 In any given case, the prosecution need not prove objective evidence of the accused's departure from lawful driving standards. In other words, the Crown may not be able to establish weaving, speeding, the causing of an accident, or the like, and yet discharge its burden of persuasion of impaired ability to operate a motor vehicle based upon other evidence, for example, consumption of alcohol and physical condition of the driver. The driver, who evidences classic symptomology of impairment and/or who fails physical sobriety tests may be convicted of impaired operation of a motor vehicle where the court concludes that such evidence affected the accused's ability to drive, for example, in terms of judgment, field of vision and response time.

[4] Mr. Bassi relied on a decision of LeSage C.J.O.C. sitting as a summary conviction appeal justice in R. v. Singh, [1997] O.J. No. 1164. After reviewing the evidence which was before the trial judge Justice LeSage wrote at para 10:

10 It has been suggested that the learned trial Judge shifted the onus of proof. I do not believe he did. He goes through the driving which is terrible and, then he states:

"Combined with certain indicia of impairment, that you had consumed alcohol and there was a strong odour of it indicates that you are impaired."

I have difficulty coming to that same conclusion and I have difficulty in agreeing with the learned trial Judge that a properly instructed jury could on this evidence be satisfied beyond a reasonable doubt that the accused was impaired. If one were to take the driving by itself and take the smell of alcohol with that driving, then perhaps there would be a basis upon which to found a conviction. But when one looks at all of the other indicia which are more consistent with non-impairment than they are with impairment, I believe it would be dangerous to base a conviction on that evidence.

In my view based on subsequent judicial commentary, Singh, supra, stands simply for the proposition that a trier of fact must consider all of the evidence.

[5] In R. v. Palanacki, [2001] O.J. No. 5194, Justice Durno sitting as a summary conviction appeal justice wrote at paras 10, 11:

10 I agree with Ms. Price that Singh, supra, does not stand for the proposition that evidence of bad driving and the odour of alcohol cannot establish impaired operation. LeSage, C.J.O.C. found, "If one were to take the driving itself, and take the smell of alcohol with that driving, perhaps there would be a basis upon which to found a conviction". Here, there was evidence of bad driving, the odour of alcohol, red-rimmed and glassy eyes and a slight unsteadiness. Taking those aspects of the evidence alone could reasonably support a conviction. The verdict was not unreasonable.

11 I agree with the Chief Justice that when the physical symptoms alone would not support a conviction, a trial judge must examine not only the driving pattern, but all of the evidence, including evidence of non-impairment, in assessing whether the Crown has satisfied the onus. This is consistent with the judgment of Hill J. in R. v. Elvikis (1997), 25 M.V.R. (3d) 256 (Ont. Ct. Gen. Div.), relied upon by the Crown where His Honour found:

Circumstantial evidence as to impairment, advanced by the Crown, whether driving conduct, physical symptomology or physical test results, or some combination thereof, will have probative value on the issue of impairment ability to drive a motor vehicle, more or less, depending upon the nature and strength of the evidence adduced. Items of circumstantial evidence are not to be viewed in isolation but the entirety of the evidence must be considered in determining whether the prosecution has discharged the burden of proof. (emphasis added)

[6] In R. v. Kumic, [2006] O.J. No. 4886 Justice Durno reiterated his earlier statement in Palanacki, supra. His view was endorsed by Justice Spies sitting as a summary conviction appeal justice in R. v. Kuznyetsov, [2007] O.J. No. 4028 at para 20:

20 As Justice Durno observed in R. v. Kumric, sitting as an appellate judge on a Summary Conviction appeal, Singh is not authority that there must be overt physical indicia of impairment before a conviction can be entered. Indeed, LeSage J. found that perhaps the smell of alcohol and bad driving might be sufficient. In Kumric, Durno J. commented:

While in virtually every impaired driving prosecution the arresting officer or civilians give evidence about the "usual signs of impairment"; slurred speech, unsteadiness on the feet, bloodshot eyes, etc., there is nothing to prevent a trial judge from finding guilt in their absence. The trial judge is required to look at all of the evidence and determine if the Crown has established the offence to the degree of certainty required in a criminal prosecution. Where there are no or few overt signs of impairment, a trial judge could conclude that their absence led to a reasonable doubt because of the absence of evidence. ... That is not the same as saying that the absence of overt signs must lead to a reasonable doubt. (at para. 23)

His Honour rejected the appellant's explanatory evidence in regard to the driving he admitted. He then found the other bad driving had occurred, bad driving for which there remained no innocent explanation from the defence. When that evidence was coupled with evidence of consumption, it was open to the trial judge to find as he did, that the appellant's ability to operate a motor vehicle was impaired by the consumption of alcohol at least to a slight degree. Once the appellant's explanations were rejected and the other bad driving evidence unexplained, it was open to the trial judge to reasonably conclude the appellant was simply a terrible driver, or that his ability to operate a motor vehicle was impaired. ... The verdict must be a reasonable verdict, not the only reasonable verdict. (at para. 31)

[7] Finally Justice Kershman sitting as a summary conviction appeal justice in R. v. Clement, [2011] O.J. No. 865 accepted Justice Durno's reasoning, at para. 12:

12 In my view, the trial judge did not misapprehend the evidence as set out above. March J. followed the reasoning of Durno J. in R. v. Kumric, [2006] O.J. No. 4886, as follows:

1 This appeal raises the question of whether a conviction for impaired driving requires evidence of physical manifestations of impairment. The investigating officer described the appellant's erratic driving. When stopped, the appellant had the odour of alcohol on his breath and admitted consuming a few beers. He exhibited no other physical indicia of impairment or consumption. At trial, he admitted having five beers within four hours of driving. While admitting and explaining some of the erratic driving, he denied other aspects of the officer's evidence. The trial judge rejected his evidence, and convicted him of impaired operation of a motor vehicle.

6 The appellant told the officer he had had a few beers. The officer detected the odour of alcohol coming from his breath, but noted no other indicia of impairment. The appellant was arrested and charged with impaired operation. Breath samples provided at the station were excluded from evidence.

22 The trial judge found that physical symptoms were not an essential element of the offence of impaired driving. The appellant contends it is. I disagree.

23 While in virtually every impaired driving prosecution the arresting officer or civilians give evidence about the "usual signs of impairment'; slurred speech, unsteadiness on the feet, bloodshot eyes etc., there is nothing to prevent a trial judge from finding guilt in their absence. The trial judge is required to look at all of the evidence and determine if the Crown has established the offence to the degree of certainty required in a criminal prosecution. Where there are no or few overt signs of impairment, a trial judge could conclude that their absence led to a reasonable doubt because of the absence of evidence. R. v. Lifchus (1997), 118 C.C.C. (3d) 1 at para. 36 and 39. That is not the same as saying that the absence of overt signs must lead to a reasonable doubt.

24 It is also important to note that the offence is impairment of the ability to operate a motor vehicle, which has been described by Hill J. in R. v. Censoni (2001), 22 M.V.R. (4th) 178 (S.C.J.), as follows:

Furthermore, it must be remembered that slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like.

26 There is no authority I am aware of that would support the contention that reduced ability to perform complex tasks, whether impacting on perception, field of vision, reaction time or response time, judgment, regard to the road and the like, must be accompanied by overt symptoms of impairment. No doubt, it almost invariably is. Where there is evidence which could support a finding that the driver's ability to perform those tasks was reduced, and evidence he or she consumed some alcohol, it is open to the trier of fact to conclude that the driver's ability to drive was impaired by the consumption of alcohol.

Application of the Principles to This Case

[8] The primary investigating officer in this case Constable Kelvin Wong had just graduated from the Police College at the time of the events, his coach officer Constable Milan Ivkovic was also relatively inexperienced, having less than four years' service as a police officer. He took a somewhat benign view of his role, suggesting he would review Wong's actions at the end of the event and make corrections. Surely the time for coaching is at the time of the events, when problems can be avoided. He seemed to be content to cede the investigation to Wong, but did in a number of material aspects confirm Wong's evidence. Both officers describe Mr. Kisten's car as weaving within its lane and either cutting off or narrowly avoiding a collision with another car. Wong observed rapid acceleration and deceleration, Ivkovic, described the acceleration, and testified about an abrupt stop.

[9] Wong described Mr. Kisten as having some stagger when he walked. Ivkovic described Kisten's posture as odd like he was bracing himself. Wong described Mr. Kisten's eyes as red, and glossy, and testified that there was an odour of alcohol on Kisten's breath. None of their testimony was contradicted. Mr. Bassi argued that there were other factors which were inconsistent with impairment, for example both officers agreed that Mr Kisten pulled his car over without incident when he was signalled to do so. Mr. Bassi pointed to the breath room video as evidence of his client's lack of visible impairment. Clearly I must consider these factors in my calculus as to whether the Crown has proven guilt beyond a reasonable doubt.

[10] The officers observed the Accused' driving over a relatively short distance, perhaps two kilometers, at 60 kilometres an hour an observation of only a few minutes. They observed a number of erratic driving maneuvers in that short time. They observed physical impairment at the side of the road, and there were indicia of alcohol consumption. As to the absence of symptoms in the breath room, the observations were made sometime after the alleged driving. There is limited opportunity to observe Mr. Kisten walking or performing skills which require physical dexterity. In addition he is aware he is under observation, it is a common human experience that we behave differently when we know we are being tested or under observation. It is the cumulative effect of the evidence which has satisfied me beyond a reasonable doubt. The case is judged on the whole of the evidence rather than its constituent parts. I find beyond a reasonable doubt that Mr. Kisten's ability to operate a motor vehicle was impaired by the consumption of alcohol, and I register a conviction.

The Legal Principles Applicable to the Charge of Operating with Excess Blood Alcohol

[11] The Crown, in this case, Mr. Levan has properly conceded that Mr. Kisten's breath samples were not taken as "soon as was practicable". The result is that the Crown cannot rely on the twin presumptions contained in Section 258 of the Criminal Code, of "identity", that is the Accused blood alcohol level at the time of driving was the same as at the time of the testing, and "accuracy" that is the Certificate of the Qualified Technician is proof of its contents. It is settled law that the Crown may attempt to prove its case without the benefit of the presumption. In R. v. Burnison, 70 C.C.C. (2d) 80, Mr. Justice Martin of the Court of Appeal wrote at paras. 3, 4:

3 Crown counsel also conceded that as the temporal requirement of s. 237(1)(c)(ii) had not been satisfied, the prosecution could not rely on the presumption created by s. 237(1)(c) that the test readings reflected the blood alcohol level of the accused at the time that he had the care and control of the motor vehicle. Crown counsel on the appeal by way of trial de novo proposed, however, to elicit from the qualified technician by way of viva voce evidence the results of the breath tests, notwithstanding that the samples of breath were not taken with an interval of at least fifteen minutes between the times when the samples were taken as required, according to his concession, by the provisions of s. 237(1) (c) (ii). He then proposed to adduce expert evidence as to the proportion of alcohol in the respondent's blood when he was stopped by the police, using as a basis for his opinion the results of the analysis as to the proportion of alcohol in the respondent's blood at the time the samples were taken.

4 The learned trial Judge held that the samples not having been taken in accordance with the requirements of s. 237(1) (c) (ii), the viva voce evidence proffered was inadmissible. We are all of the view that he erred in so holding. We are not in this case concerned with the admissibility of a certificate which was not, in fact, tendered, nor are we concerned with the presumption created by s. 237(1)(c) where samples are taken in compliance with those provisions. Crown counsel concedes that, in the circumstances, the presumption does not arise. We are all of the view, however, that the oral evidence of the qualified technician as to the results of the tests was admissible. See R. v. Jones (1977), 33 C.C.C. (2d) 50. We are also of the view that the opinion evidence of an expert witness was admissible with respect to the proportion of alcohol in the respondent's blood at the time he had the care and control of the automobile, using as a basis for his opinion the results of the tests taken some three quarters of an hour and an hour later. The weight of that evidence was for the trial judge, but it was clearly admissible. (Emphasis added).

[12] In this case the Crown need not rely on the presumption of accuracy. The Crown called the qualified technician Constable Dane Pallett. No quarrel was taken with his qualifications. He adopted his Certificate, and the entire testing procedure was videotaped. There was no dispute that the instrument, an Intoxilyzer 8000 C, is one which is approved for use.

[13] The real issue for me to decide is whether I can take judicial notice of certain facts and do the calculations which would normally be done by an expert witness, and relate the blood alcohol level at the time of testing to the time of driving. Mr. Levan says I can based on R. v. Pasczenko; R. v. Lima, 2010 ONCA 615. Mr. Bassi says I cannot.

[14] It is important to review the issues before the Court of Appeal in Pascezenko, supra, to deal with Mr Levan's submissions. The Issues as framed by the Court of Appeal are found in paras 1, 2:

1 The appeals of Mr. Paszczenko and Mr. Lima were heard on the same day. The central issue in each concerns the manner in which the Crown must prove the facts underlying the four assumptions upon which expert toxicology reports filed in "over 80" cases where the breath test has not been administered within two hours of the driving incident are routinely based.

2 In the jargon of these cases, the four assumptions are commonly referred to as (i) no "bolus drinking", i.e., no rapid consumption of large amounts of alcohol shortly prior to the incident; (ii) no consumption of alcohol between the incident and the breath test; (iii) an "elimination rate" of 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour; and (iv) a two-hour "plateau" after drinking where the rate of elimination does not change. (Emphasis added).

[15] Ultimately the Court held that judicial notice could be taken of assumptions 3 and 4 at para. 59-66 Justice Blair wrote:

59 In Lima, the SCAJ concluded that he could take judicial notice of the accuracy of the "plateau" and "elimination rate" assumptions, since this Court had already accepted those assumptions - based on essentially the same facts and described in the same fashion - in Phillips. The SCAJ in Paszczenko refused to do so.

60 There is some debate in the jurisprudence about this. For example, in R. v. Rajeswaran, Duncan J. held that he was entitled to take judicial notice of the 10-20 milligram/hour elimination rate of alcohol in order to determine BAC at the time of driving, as did Langdon J. in R. v. Coulter, [2001] O.J. No. 5608 (S.C.J.). On the other hand, trial judges in R. v. Lin (Lampkin J.), R. v. Castro-Mendoza (K. Caldwell J.), R. v. Thompson (C.H. Paris J.), and R. v. Nauss (Zivolak J.), held that they could not.

61 It is technically unnecessary to resolve this debate, given the analysis outlined above. I am inclined to the view, however, that courts are entitled to take judicial notice (a) of the fact that the majority of human beings eliminate alcohol in a range of 10-20 milligrams of alcohol per 100 millilitres of blood per hour, and (b) of the fact that, after rising relatively quickly during the first 30 minutes or so after the last drink, a person's BAC generally hits a plateau for a period of up to two hours during which time the absorption rate and the elimination rate remain about equal and the BAC neither rises nor falls. I think this view is consistent with the evolving jurisprudence and with the experience of hundreds of trial judges across the country.

62 In R. v. Koh, Finlayson J.A. concluded, at p. 679, that "judicial notice may be taken of two kinds of fact: facts which are so notorious as not to be the subject of dispute amongst reasonable persons; and facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy." Moreover, "judicial notice is permissible where previous courts have proven a certain fact." See also Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3d ed. (Toronto: LexisNexis Canada Inc., 2009), at paras. 19.13 and 19.17.

63 In Phillips, this Court dealt extensively with the underlying facts regarding the absorption and elimination of alcohol into and out of the blood and the measurement of BAC. It did so on the basis of an agreed statement of facts and the scientific basis underpinning those facts. Speaking for the Court, Blair J.A. stated at p. 160:

Scientists have established that the BAC rises rapidly, as stated in paras. 5 and 6 of the agreed statement of facts, to a maximum or near maximum within approximately 30 minutes of the last drink. Thereafter, it remains relatively constant for a period of two hours after the alleged offence and then declines as alcohol is eliminated from the blood at the rate of 10 to 20 mg per 100 ml of blood per hour. In graphical terms BAC is often described as a sharply ascending curve in the first 30 minutes after consumption of the last drink, a plateau of approximately two hours and a gradually descending curve thereafter.

64 The one exception to the foregoing conclusion, Blair J.A. noted, was the "relatively rare cases where there has been both a large amount of alcohol consumed within a few minutes prior to the apprehended driving and where the Breathalyzer tests are commenced within about 30 minutes of the last alcohol consumption."

65 These conclusions were well-founded on the scientific literature and studies in the forensic toxicology field, to which the Court had been referred and which it referenced. There is no evidence here that the scientific evidence has changed since Phillips was decided. Indeed, as I noted earlier in these reasons, in Gibson/MacDonald, supra, Deschamps J. would have held that accepting an average rate of elimination of 15 milligrams per 100 millilitres of blood per hour (the mid-range between 10-20 milligrams) "... would amount only to acknowledging the factual findings of trial judges across the country."

66 In principle, therefore, I see no impediment to judges taking judicial notice of both the "plateau" and "elimination rate" assumptions underlying the expert toxicologist's reports. They are assumptions, with underlying facts, that "are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy" in the scientific field of forensic toxicology and in the jurisprudence. (Emphasis added)

[16] Mr. Levan has seized upon the passage concerning assumptions 3 and 4 in the hypothetical, and asks me to simply accept the assumptions and do the calculations. There is a superficial attractiveness to this argument. It, however, overlooks the first two assumptions and the expert testimony as to their significance. In order for Mr. Levan's argument to succeed it much be taken a few steps further and to its logical conclusion. Can I take judicial notice that in all cases readings can be related back to the time of driving based on the four assumptions, as set out in Paszczenko, supra? Put another way can I take judicial notice that an expert would always use the same four assumptions to do the calculation?

[17] Any jurist who has presided for any length of time in the Ontario Court of Justice will have seen dozens of the toxicologists' letters referred to in R. v. Paszczenko, supra, they all contain the same four assumptions. The four assumptions have been the subject of considerable judicial commentary. There has been no suggestion that the assumptions are incorrect, the disputes and the commentary have focused exclusively on the manner of proof, for example the evidence required to raise or refute "bolus drinking", assumption one. Paszczenko, supra, settled that judicial notice could be taken of assumptions 3 and 4. In my view I can take judicial notice of the four assumptions. I find comfort in reaching this conclusion in the decision of Justice Borenstein of this Court in R. v. Bonifacio, [2013] O.J. No. 586 at para 9:

9 It is clear from the report that Mr. Bonifacio would eliminate alcohol at a rate of 10 to 20 milligrams of alcohol per 100 millilitres of blood per hour. There was also a plateau after drinking that exists for two hours before any elimination occurs. Taking the scenario most favourable to Mr. Bonifacio, he would have had a blood alcohol concentration of 150 milligrams per one hundred millilitres of blood if he was in the plateau phase. If he was a slow eliminator, meaning he eliminated 10 milligrams of alcohol per 100 millilitres of blood, then for every hour prior to 5:30 he would be 10 milligrams higher. At 4:40 he would have a minimum B.A.C. of 160, at 3:30, 170, at 2:30, 180. If he eliminated more quickly, each of those readings would be higher. That calculation is something that could be done from the established facts. The defence submits that the calculation should not be done by the court; it can only be done by the expert. I disagree. I am simply inferring what Mr. Bonifacio's minimum B.A.C. would be at various times based on the established facts.

Has the Crown Proven the Four Assumptions?

Application of the Principles to This Case

[18] There is nothing on the evidence to suggest "bolus drinking". Mr Kisten told the police he consumed 3 beers over a three hour period between 9 p.m. and midnight at his cousin's. He is clearly inaccurate on his timing. He was arrested at midnight. When asked the time at the police station, he said it was 2:20. In actuality it was approximately 1:15 a.m. Mr. Kisten was in police custody from the time he was arrested at shortly after midnight until the first test was taken at 1:10 a.m. which resulted in a blood alcohol concentration of 159 mgs. of alcohol in 100 mls. of blood. The results were truncated on the certificate to 150 mgs. There is no suggestion that at any time after driving and while in police custody that he consumed any alcohol. The second test at 1:31 a.m. produced a result of 166 mgs., truncated to 160. Mr Kisten was driving at 11:55 p.m. on the previous night. Using the most favourable calculations to Mr. Kisten, while it is difficult to calculate his exact blood alcohol concentration given the varying elimination rates, there is no doubt that his blood alcohol concentration at the time of driving would have been well in excess of the limit of 80 mgs per 100mls. Accordingly I register a conviction.

Summary and Conclusion

[19] Mr. Kisten has been convicted of the offences of impaired operation and operating a motor vehicle with excess blood alcohol. Since a single delict lead to the two convictions, the count of excess operation is conditionally stayed. (See R. v. Kienapple, [1974] S.C.J. No. 63)

Released: December 17, 2015

Signed: "Justice Paul M. Taylor"