Court File and Parties

Court File No.: Brampton15-3398 Date: April 15, 2016 Ontario Court of Justice

Between: Her Majesty the Queen

— and —

Shiraz Nathoo

Before: Justice Paul F. Monahan

Heard on: February 1, 2 and March 4, 2016

Released on: April 15, 2016

Counsel:

• Mr. C. Nadler for the Crown
• Ms. T. Hicks for the defendant Mr. Shiraz Nathoo

MONAHAN J.:

OVERVIEW AND INTRODUCTION

[1] Mr. Nathoo is charged that on or about March 15, 2015 that he did operate a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(a) of the Criminal Code of Canada (the "Code"). In addition, he is also charged with having operated a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code.

[2] The defence brought a Charter application which was heard at trial on a blended basis on consent. Part way through the trial, the defence conceded that its Charter application could not succeed and it was withdrawn.

[3] It is admitted by the defence that the breath samples of 185 mg of alcohol in 100 mL of blood and 176 mg of alcohol in 100 mL of blood were taken at 6:17 PM and 6:40 PM respectively and are admissible in evidence. The defence has led evidence of drinking after the driving and related expert evidence. As a result, the defence submits that the presumptions of identity contained in s. 258(1)(c) and s. 258(1)(d.1) of the Code, have been rebutted. The defence submits that the over 80 charge should be dismissed.

[4] The defence also submits that the impaired driving charge has not been proved beyond a reasonable doubt and submits that any poor driving was due to simple fatigue on the part of Mr. Nathoo.

[5] The Crown called three police witnesses (Constable Bell, the breath technician, Constable Ambrosio and Constable Walker) as well as two civilian witnesses, Nicole Tresnak and Stephen Bishop.

[6] The defence called Mr. Nathoo and his wife, Ms. Rozila Nathoo, as well as a toxicologist expert witness, Mr. Bernard Yen.

THE FACTS

[7] What follows below are my findings of fact. There are contested facts principally related to the events at the Nathoo home and whether Mr Nathoo engaged in substantial post driving drinking or not and whether Mr. Nathoo was driving while impaired. I will consider the contested factual issues under my consideration of the issues below.

The Civilian Witnesses

[8] Nicole Tresnak was a witness at trial called by the Crown. She was 26 years of age at the time for testimony. Her boyfriend Stephen Parker was also a witness at trial. Their evidence was similar but not identical. I fully accept their evidence which was not challenged in any material way.

[9] Ms. Tresnak testified that they were driving in the same vehicle (Mr. Parker was driving) southbound on Highway 427 in the City of Toronto on March 15, 2015. She estimated it was around 4:30 or 5 PM. She observed a vehicle in front of her weaving in and out of its lane. Other cars had to move over to avoid the vehicle and the vehicle was braking for no apparent reason. The vehicle was a Chevy Equinox. She got the license plate and, on the totality of the evidence, there is no issue that Mr. Nathoo was the driver of that vehicle.

[10] Mr. Nathoo's vehicle exited from the 427 on to Dundas as did the Tresnak/Parker vehicle. Mr. Nathoo's vehicle would go fast and slow for no legitimate reason. At one point a traffic light had turned red and Ms. Tresnak was not sure if Mr. Nathoo's vehicle was going to stop or go through the red light. His vehicle went into the intersection a car length and did stop and then backed up and almost hit a woman with a stroller who was crossing in the crossing area of the intersection.

[11] Ms. Tresnak testified that the driver of the vehicle appeared to be coming in and out of sleep.

[12] It was Ms. Tresnak who called 911 and she did so just as they exited the 427 at Dundas. It was agreed by the defence and the Crown that the 911 call was placed at 4:32 PM. It was a further agreed that the 911 call lasted three minutes and twenty-five seconds.

[13] Mr. Parker testified that they had noticed the vehicle on the 427 because it was swerving in and out of its lane without any signal. It swerved over 10 times and he said the swerving was "constant". This took place over a couple of kilometers. Other vehicles were affected and had to move out of the way. The swerving continued on Dundas. He confirmed the incident with the woman in the stroller and how she had to stop to avoid the vehicle which was backing up.

[14] He confirmed that the driver looked like he was nodding off or falling asleep.

[15] Mr. Parker estimated that the total time that they saw the vehicle for was 6 to 7 minutes. He said that they stopped following the vehicle when they took a right on to Dixie from Dundas. Ms. Tresnak said that they had watched the vehicle for about 10 minutes.

The Police Visits to Mr. Nathoo's Home

[16] It is common ground that two police officers made separate visits to Mr. Nathoo's home very close in time on March 15, 2015. The first officer was Constable Michael Ambrosio and the second officer was Constable Rayon Walker.

Constable Ambrosio

[17] As indicated above, it is agreed between the Crown and defence that the 911 call was at 4:32 PM on March 15, 2015.

[18] Constable Ambrosio said he received the dispatch call at 4:36 PM for a possible impaired driver. He attended the residence of the registered owner to the vehicle which had been spotted by the civilian witnesses on the 427 and on Dundas.

[19] He arrived at the residence at 4:44 PM. The vehicle with the licence plate reported by the witnesses was in the driveway. The hood was still warm.

[20] Constable Ambrosio testified that Mr. Nathoo answered the door. It was suggested to Constable Ambrosio in cross-examination that Ms. Nathoo answered the door but he held the position that is was Mr. Nathoo who answered the door. This is contested issue of fact and I will return to it later.

[21] Constable Ambrosio testified that Mr. Nathoo told him that Mr. Nathoo had driven the vehicle in the morning but that nobody had moved the vehicle recently. This too is a contested fact.

[22] Constable Ambrosio formed the view that Mr. Nathoo was intoxicated but he was unable to determine if he had been driving the vehicle as Mr. Nathoo had only said that he had been driving the vehicle in the morning.

[23] Constable Ambrosio could smell alcohol and it seemed to be stronger when Mr. Nathoo was talking. He noted that Mr. Nathoo was unsteady on his feet and had trouble standing still. He said that Mr. Nathoo went to sit down at a table in the dining room or kitchen. He denied that he was on a futon.

[24] Constable Ambrosio said that he thought that he was at the residence for 10 or 11 minutes. As he couldn't establish that Mr. Nathoo was the driver, he decided to leave the home without laying a charge. His notes had him clearing the scene at 4:57 PM but he testified that this was really a notation from the dispatch and that he would have cleared the scene beforehand but perhaps had to wait to speak to dispatch to indicate that he was changing locations.

[25] Constable Ambrosio testified that he was not present when Constable Walker arrived at the residence. It was conceded by the defence that Constable Walker had arrived at 4:55 PM. Constable Ambrosio did not learn that Constable Walker had also attended at the residence until later on.

Constable Rayon Walker

[26] Constable Walker testified that he responded to the dispatch call at 4:35 PM. He too went to the home of Mr. Nathoo and saw the vehicle in the driveway which had been identified as having been on the 427 and Dundas. He touched the hood of the vehicle and it was warm to touch. He did not know that Constable Ambrosio had been there just before him. Constable Walker arrived at the home at 4:55 PM on March 15, 2015.

[27] He knocked on the door and a female (Ms. Nathoo) answered the door. He told her that he was investigating an alleged drinking and driving offence. She said that her husband had been the driver and she pointed to him. He was lying on a futon in his pyjamas in the living room area of the house. He had a hard time getting up and was unsteady. He was advised of his right to counsel. He said he did not need a lawyer.

[28] Mr. Nathoo said he had been drinking since he arrived home five minutes earlier. Constable Walker did not see any bottles and glasses. Constable Walker asked him what he had been drinking. Constable Walker testified that Mr. Nathoo showed him a sealed full bottle of Crown Royal.

[29] He said that Mr. Nathoo could not walk on his own and needed the support of his wife.

[30] Constable Walker received an update on the description of the male driver over the radio and at that time he formed the view that he had reasonable and probable grounds to arrest Mr. Nathoo for impaired driving and he did so at that time. This occurred at 5:12 PM and rights to counsel followed at 5:27 PM. The defence conceded that there were no issues regarding reasonable and probable grounds or rights to counsel. It was also conceded that all statements made to police were voluntary.

[31] Constable Walker testified that he permitted Mr. Nathoo to change out of his pyjamas and into his clothes and that he was briefly out of Constable Walker's sight when he changed into his pants.

[32] Constable Walker testified that immediately after he gave Mr. Nathoo's his rights to counsel and caution, Mr. Nathoo said "I had a few drinks and came home". This statement was challenged in cross-examination and it was suggested to him that Mr. Nathoo had actually said "I had a few drinks when I came home" but the officer said that that was not accurate and relied on his notes and he said he had taken down exactly what the defendant had said to him. This remains a contested fact.

[33] Constable Walker also testified that when they were back at the station and he was briefing Constable Bell, the breath technician, Mr. Nathoo said "I'll tell you the truth, I had a few drinks before I drove home". Constable Walker also had a further note that during the breath room video, the defendant said that he had a sip of Crown Royal at the bakery and then drove home. He noted in his book that this statement was at 1820 hours (during the breath room video). He had a further note that at 1825 hours (during the breath room video) the defendant stated that his last drink was at the bakery.

[34] Two "google" maps were introduced into evidence during Constable Walker's testimony. The first was a map which showed that the distance from the 427/Dundas to the defendant's house as 8 km and the information on the map estimated that it would take 13 minutes to drive that route. Constable Walker stated specifically that the estimated travel time seemed right to him. A second google map showed the distance from the intersection of Dixie and Dundas to the defendant's home to be 4.6 km with an estimated time of travel of eight minutes. Constable Walker implicitly adopted this information although he did not specifically say that he thought the travel time was accurate. In any event, both maps were marked exhibits on consent.

Breath Room Video/Constable Bell

[35] As indicated above, the breath technician was Constable Robert Bell. There are no issues about his qualifications to operate the approved instrument or that the machine was not operating properly. The voluntariness of all statements made by Mr. Nathoo during the breath room video was also conceded by the defence.

[36] As indicated above, Mr. Nathoo provided two breath samples: one at 6:17 PM which registered 185 mg of alcohol in 100 mL of blood and one at 6:40 PM which registered 176 mg of alcohol in 100 mL of blood.

[37] Mr. Nathoo made a number of statements on the video. He initially said that he had gone home and had a drink at home. He later changed this position during the breath room video. He said he had had one sip of Crown Royal at the bakery where he was working (and which he owned at the time) before he drove home. He said he just took one sip of it and that that was the last drink he had had that day. He emphasized that was all he had to drink, namely one sip at the bakery.

[38] He was asked to describe his level of sobriety with "1" being sober and "10" being passed out and he said he was near a "0".

[39] He said that he had driven his car that day. He said he had finished work at 4 PM and had changed his clothing into what he was wearing at the time of the breath room video and then he drove home. He said he did not stop anywhere on the way home. In response to information from the police that they had a complaint about his driving on Dundas he stated a number of times in an adamant manner that he had not driven on Dundas at all. He stated that he "never" drives on Dundas. He seemed incredulous that anyone would suggest that he had driven on Dundas that day.

[40] Is clear from the video that Mr. Nathoo is impaired. He is slurring his words throughout. Further, Constable Bell testified that Mr. Nathoo had red rimmed eyes, a strong odour of alcohol emanating from his breath and that he was unsteady when walking. In fact, it was conceded by the defence that he was clearly impaired at the time of the arrest and on the breath room video. It was not conceded that he was impaired at the time of driving.

Toxicology Evidence - Mr. Bernard Yen

[41] Mr. Bernard Yen was called as an expert witness by the defence. He had initially been retained by the Crown in this matter but the Crown decided not to call him and agreed to permit the defence to retain and put him forward as an expert witness as part of the defence's case.

[42] It was proposed by the defence that Mr. Bernard Yen was qualified to give expert evidence in the area of forensic toxicology including the absorption, elimination and distribution of alcohol in human body and the related calculations of blood alcohol content ("BAC"). The Crown requested and the defence agreed to also have him qualified as an expert on the effects of alcohol in the human body with respect to impairment to operate a motor vehicle. The Court accepted that Mr. Yen was qualified to give expert evidence in the areas proposed by both counsel.

[43] Mr. Yen provided his expert opinion with respect to various hypothetical questions put to him by the defence and the Crown as to the effects of consumption of Crown Royal on a person who was 69 years of age, 5 foot 4 inches and 150 pounds (the particulars of Mr. Nathoo).

[44] He said that one ounce of Crown Royal (assuming 40% alcohol by volume) would produce approximately 19 mg of alcohol in 100 mL of blood or BAC assuming instant absorption. Two ounces of Crown Royal would lead to approximately 38 mg of alcohol in 100 mL of blood.

[45] There is an assumed elimination rate of 10 to 20 mg of alcohol per 100 mL of blood per hour. Accordingly, over two hours, the elimination would be anywhere from 20 to 40 mg per 100 mL of blood. He also said that when a person drinks alcohol, it takes about 15 minutes to absorb into the blood.

[46] Accordingly, he said that someone who drank only 2 to 2.33 ounces of Crown Royal and drove 20 minutes later would not have a BAC of over 80.

[47] Assuming that a person had five drinks with each drink containing 2.0 ounces of Crown Royal, that would lead to a BAC of approximately 190 before considering the rate of elimination. If the size of the drinks was 2.33 ounces that would lead to a BAC of 220 before considering the rate of elimination. Using the elimination rate described above, he said that approximately two hours later the blood alcohol content would be 150 to 170 (using the 190) or 180 to 200 (using the 220).

[48] He was asked if somebody consumed 2 ounces of alcohol at 4:15 PM whether they would be weaving their car shortly thereafter. He said such a person would have a BAC of approximately 38 and, together with a lack of sleep, it could lead to weaving of the vehicle being operated.

[49] He also testified that alcohol can have an effect on memory.

[50] He testified that it was his view that a person with 50 mg of alcohol in 100 mL of blood would be impaired to drive motor vehicle but at other times he used the term "could" be impaired at this BAC. He said it would only take three ounces of an alcoholic drink consumed at 4:10 to 4:15 PM to give rise to a BAC of 50 at 4:30 PM. He also gave opinion evidence that anyone with a BAC of over 80 mg would be impaired to operate a motor vehicle.

[51] The bottom line regarding Mr. Yen's testimony was that if a person started drinking around 4 o'clock and drank 10 to 11.65 ounces of alcohol (40% crown Royal) from about 4 o'clock to 4:55 PM, it could lead to blood-alcohol readings consistent with those obtained in this case at 6:17 PM and 6:40 PM. It does not matter whether the drinking ends at 4:30 PM or 4:55 PM.

Shiraz Nathoo

[52] Mr. Nathoo testified as a witness in his own defence. He testified that he is currently 70 years of age and that he was 69 years of age on March 15, 2015. He testified that he is 5'4" and 150 pounds and that he was the same back on March 15, 2015. Much of Mr. Nathoo's evidence (and Ms. Nathoo's evidence) is contested by the Crown, particularly his evidence of post driving drinking and how events unfolded once he was at home. Accordingly, what follows below is a recitation of and overview of the evidence rather than of the facts. As indicated earlier, I will determine the contested facts under my consideration of the issues.

[53] Mr. Nathoo is a Canadian citizen and is now retired. He ran a bakery for 20 years which he owned. He has been married to his wife Rozila for almost 40 years. He said the business was not doing well and he recently sold it almost at a loss.

[54] Returning to the events of March 15, 2015, he said that he had started work at his bakery at approximately 4 AM on March 15. He had gone to bed the previous night around 11 or 11:30 PM. He finished working around 3 PM at which time he lay down in his office and took a rest but did not sleep.

[55] He said that he had one "gulp" of Crown Royal before he left the bakery. He said that as part of this court proceeding he had taken the time to measure his gulps using water and he determined that each time he gulps water it is about 2 to 2.33 ounces and he estimated that his gulps of Crown Royal were about the same. Accordingly it was his evidence that he had a about 2 to 2.33 ounces of Crown Royal before he left the bakery on March 15. He said that Crown Royal is 40% alcohol.

[56] He explained that after he took the drink described above, it was about five minutes before he got in his car and started to drive home. He said he had been depressed and tired with a lot of things on his mind and that was why he was drinking.

[57] He started to drive towards his brother's business but changed his mind and took Burnhamthorpe to 427 south to Dundas and from there he took Dundas to Dixie and eventually arrived home. He thought he arrived home at approximately 4:35 to 4:40 PM. He confirmed that the route he took was consistent with the civilian witnesses' evidence. He agreed with them as to his poor driving. He said his poor driving was due to the fact that he was very tired and none of it was caused by the consumption of alcohol.

[58] He said when he arrived home his wife asked him if he had been drinking and he said he had not been drinking. She was cooking. He went to have a shower but before doing so he took two more gulps of crown Royal (total 4 to 4.66 ounces). His wife doesn't like him drinking and he did it privately and he did not think that she saw. He said he was relaxing when he took the drinks and that it took a couple of minutes for him to have the two gulps. He drinks fast so his wife will not see him. He then took a shower and that took five minutes.

[59] He said he was in the shower when his wife called him to say the police were there and wanted to see him. He said he was not the one to answer the door when the first officer came to the door. It was his wife who answered the door.

[60] He said that the officer told his wife in his presence that Mr. Nathoo had been drinking. The officer said someone had been complaining about her husband driving drunk and he told her not to let him drive. The officer left. Thereafter Mr. Nathoo said he went and had two more gulps of the Crown Royal (another 4 to 4.66 ounces).

[61] He said he then lay down on the sofa and fell asleep. He said that before falling asleep he put the bottle beside the sofa. The next thing he knew another police officer had arrived. When he woke up the bottle was not there anymore. This officer was more threatening with him and said that Mr. Nathoo was drunk and that the officer was going to take him in to the station. Mr. Nathoo said to the officer that he had been drinking but that he had been drinking at home and he wanted to show him the bottle. He said his wife showed the officer the bottle and that it was almost half empty. He said the bottle was not sealed and was not full.

[62] The officer handcuffed him and arrested him. His wife said that he had to change.

[63] He was asked about the breath room video and he said that he was too drunk and that he doesn't remember anything he said on the video. He said he was scared in his dealings with the police. He said he was drunk and confused.

[64] Although he originally stated he agreed with the civilian witnesses concerning their description of his driving he did not completely hold to that position in cross-examination. He acknowledged that he was weaving and swerving. He disputed that he was braking for no reason.

[65] He said that the events of this case are the only time he ever fell asleep while driving. He said it was the first time he ever felt that tired in terms of driving. He was asked why he did not pull over in those circumstances and he said it was because his house was not too far. He agreed his home was at least 8 km away from the point at which he was weaving on the 427.

[66] He said that the evidence of Constable Ambrosio arriving at 4:44 PM did not seem right to him but then he accepted it. In addition, at first he testified that he would not have been unsteady on his feet when the first officer arrived but then said that he must have been. He disagreed that he had told the first officer that he had only been driving in the morning.

[67] He agrees that on the video he told Constable Bell that his last drink was at the bakery and that that was a lie.

[68] He said that he had had the first two gulps (in terms of his drinking at home) five minutes before the first officer arrived. Also on the issue of timing, he disagreed that the second officer came within minutes of the first officer. He said that it was 10 minutes between the time the first officer left and the second officer arrived.

[69] He reiterated that when he came home his wife asked him if he had been drinking-he said she sometimes does that. He said he did not look drunk or smell of alcohol.

[70] He said he was in the dining room when he took the first two gulps at home and that she was in the kitchen. Once again, he said that after the first police officer left he had the two more gulps in the dining room. He said the dining room and living room are really the same room.

Rozila Nathoo

[71] Ms. Nathoo has been married to Mr. Nathoo for 40 years. She testified as part of the defence's case.

[72] She said that on March 15, 2015 her husband had gone to the bakery at about four 4:30 AM as he usually does. She had also worked at the bakery that day starting at about 8:30 AM and leaving at about 2 or 2:30 PM. She went home to make dinner.

[73] She said that he usually comes home around 4 PM but that day he was late and came home about 4:30 PM. When he came in the house she asked him if he had been drinking and he told her that he had not. The reason she asked him if he was drinking was because he was late and she was suspicious. She testified that there was nothing she saw in the way that he was acting that caused her to think he had been drinking.

[74] She testified that he did not usually drink at home at all. Perhaps if a brother or a friend came over, he would have a drink. She said that she sometimes sees him drinking at parties.

[75] She said they talked for a time and then he went to take shower. There was a knock at the door and the first police officer arrived. It is common ground that this would have been Constable Ambrosio. She said he asked who had been driving and she said her husband had been driving the vehicle. She said she went to get her husband. She said that the officer told him not to let her husband drive.

[76] After Constable Ambrosio left, she was cooking and a few minutes later there was another knock on the door. Before she answered the door she saw her husband sleeping on the couch and there was half a bottle of alcohol beside him. She did not want the officer to see so she put the alcohol away. The second officer arrived and it is common ground that it must have been Constable Walker. She said that he was very aggressive and wanted to know where her husband was. She said her husband was sleeping on the couch and that he was wearing pajamas. She testified that she showed the officer the bottle he had been drinking from and it was half-full.

[77] After he was arrested, she went and got a change of clothes for her husband to change into.

[78] She acknowledged in cross-examination that she and her husband had discussed the events of this day at least 12 times in the last year and it could have been more.

[79] She testified that her husband knows that she looks at the bottles of alcohol every day and could monitor what he is drinking in the house. She also said it was a small house and there was no alcohol hidden in the house.

[80] It was pointed out to her that Constable Ambrosio said that her husband had answered the door and not her to which her response was that he was "lying from his teeth".

[81] Similarly, when it was suggested to her that Constable Walker said that he had been shown a full sealed bottle of alcohol she said that he too was "lying".

THE ISSUES

[82] A key factual issue arises in this case. If it is the case that Mr. Nathoo had only one drink before driving but then consumed 8 to 9.3 ounces of alcohol after driving then the presumptions contained in s. 258(1)(c) and (d.1) would be rebutted and the charge of driving "over 80" would not be proved beyond a reasonable doubt.

[83] A further issue arises as to whether the Crown has proved beyond a reasonable doubt that Mr. Nathoo operated a motor vehicle while his ability to do so was impaired by alcohol. Accordingly, from the Court's perspective the two issues in the case are as follows.

Issue 1. Do the presumptions of identity contained in s. 258(1)(c) and (d.1) apply?

Issue 2. Has the Crown proved beyond a reasonable doubt that Mr. Nathoo operated a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(a) of the Code?

[84] I will review each issue in turn.

Issue 1. Do the presumptions of identity contained in s. 258(1)(c) and (d.1) apply?

[85] In order to consider this issue, the relevant legal principles must be reviewed and considered.

Legal Principles and Analysis

[86] There is a considerable body of law concerning s. 258(1)(c) and (d.1). I will review some of the leading cases below. I have reviewed these same provisions and related case law in R. v. McGauley, [2015] O.J. No. 4959 at paras. 54 to 64. The facts of McGauley are different than the case at bar but many of the legal principles discussed in that case are applicable in this case. Some of my comments on the law in this case are taken from directly from my judgment in McGauley.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[92] The Supreme Court has stated that the cases in which a defence under s. 258(1)(d.1) will be raised will be "rare": St. Onge, supra paras 90-91 and 95. Section 258(1)(d.1) places an evidentiary burden on the accused to rebut the statutory presumption (St. Onge supra at 94). The Supreme Court has stated that the presumption "makes it necessary for the accused to testify" (St. Onge, supra at para. 94 and 96). In my view, it will not always be the case that the accused has to testify as the accused might be able to rebut the presumption through the testimony of other witnesses who could testify as to the accused's drinking patterns in or around the time of the alleged offence.

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

[94] The defence submits that this position is incorrect and that "evidence tending to show", including the accused's evidence of consumption of alcohol, need only be evidence that is "capable of belief". The defence points to R. v Kahl (2015), 76 M.V.R. (6th) 1 (C.A.) in support of this point. That case involved evidence from an accused person that they had consumed 7 to 10 ounces of alcohol after an accident. The trial judge only considered the toxicology evidence involving 7 ounces of consumed alcohol and ignored the toxicology evidence involving 10 ounces of alcohol and said that the 7 ounce evidence "did not lead inexorably to a finding that exculpated the [the appellant]". The Court of Appeal found that the trial judge had misapprehended the toxicology evidence in a material way. The Court of Appeal stated that the toxicology evidence did not have to "lead inexorably to a finding that exculpated" the appellant. The Court stated that "rather, it was evidence capable of supporting the appellant's evidence, which, properly considered, could have restored a trier of fact's faith in what otherwise was seen as dubious evidence." The Court also noted that "the central issue in this trial was the credibility of appellant and his account of bolus drinking of seven- ten ounces of whiskey right after the accident". The Court of Appeal found that trial court erred by disbelieving the appellant's evidence relying on the 7 ounce expert evidence and ignoring the 10 ounce expert evidence.

[95] In my view, the Kahl case supports my interpretation of s. 258(1)(c) and (d.1) and, in particular, the "evidence tending to show" standard referred to in (d.1). The Kahl case was dealing with how the trial judge failed to consider expert evidence and whether it supported the accused's version of events. The Court was not addressing the question of the underlying evidence of consumption. Applied in the context of this case, Mr. Yen's evidence's does not need to "lead inexorably to a finding that exculpates" Mr. Nathoo. The expert evidence need only tend to show that Mr. Nathoo's consumption of alcohol was consistent with both being under 80 at the time of driving and consistent with the readings obtained afterwards. Like any expert evidence, it is based on assumed facts. As the Kahl case points out, the "central issue… was the credibility of the appellant" which is precisely my point about the interpretation of s. 258(1)(c) and (d.1). Kahl does not say that the accused's evidence (or "fact evidence") regarding consumption of alcohol (which constituted the assumed facts upon which the expert opinions in that case were based) must only be "capable of belief". In my view, in order for the accused to raise a reasonable doubt in response to the presumption of identity in 258(1)(c) and (d.1), the substance of the accused's evidence on consumption must be believed. To give an example relevant to the case at bar, Mr. Nathoo testified that he had 2 to 2.33 ounces before driving and 8 to 9.3 ounces after driving. He does not have to prove by way of fact and expert evidence that this would lead to the readings obtained in this case while at the same time have him under 80 at the time of driving. The fact and expert evidence tending to show this need only raise a reasonable doubt that the presumptions in s. 258(1)(c) and (d.1) do not apply. However, if the Court did not accept the essence of Mr. Nathoo's "fact evidence" (limited pre-driving consumption and substantial post driving drinking) and thought that it did not happen then the "evidence tending to show" standard would not be met in my view. That is not to say that the Court has to find that the accused consumed exactly the number of ounces of alcohol that he said he did; it is the essence or substance of the accused's evidence (or other evidence) of consumption which must be accepted by the Court.

[96] Accordingly, I turn to the factual question of whether I believe Mr. Nathoo's evidence when he says that he consumed only approximately 2 ounces of Crown Royal before driving and approximately 8 to 9.3 ounces of Crown Royal in the approximately fifteen minute period after driving. I will say clearly that I do not believe his evidence nor do I believe some of the key points in the evidence of Ms. Nathoo. The following are my reasons for these two conclusions.

[97] First, the defendant told multiple lies to the police officers and this seriously undermines his credibility before this Court. He seeks to deal with the multiple lies he told police (particularly the breath technician) by saying that he was "drunk and confused" and that he does not now remember what he said. In my view, his statements to police cannot be swept aside that easily. I accept that he was intoxicated when he spoke to the police but he was still lucid in his manner of speaking to the officers. Moreover, each of the lies, although foolish in retrospect, was clearly designed to attempt to escape liability for drinking and driving. As Mr. Nathoo put it in cross-examination, "whoever is caught drinking he will say I didn't drink, right". He told a series of lies to the breath technician all aimed at escaping liability for himself. For example, his statement that he only had one sip of Crown Royal at the bakery (and that was all the alcohol he consumed that day) was clearly intended to mislead the police into thinking that he had had very little to drink. The suggestion that he was not driving on Dundas was meant to answer the information the police had that someone matching his description had been seen driving erratically on Dundas. His statement that his level of sobriety was near a "0" was another attempt to minimize his actions and escape liability.

[98] The lies he told to police apart from the breath technician are also telling. Notwithstanding his denial, I accept that Mr. Nathoo told Constable Ambrosio that he had been driving his vehicle in the morning but that nobody had moved the vehicle recently. Constable Ambrosia had a note of this statement and there is no reason to doubt it. I reject Mr. Nathoo's denial that he said this. It is precisely the type of statement that he made throughout his dealings with the police including on the breath room video, namely a statement designed to attempt to escape liability. Similarly, I accept that immediately after he received his rights to counsel and caution he said words to the effect "I had a few drinks and came home". Further, during the briefing between Constable Walker and Constable Bell, I accept that he said "I'll tell you the truth, I had a few drinks before I drove home". Constable Walker had a note of these statements and he was unshaken in cross-examination on the points. The suggestion that he drank before driving runs contrary to his evidence at trial that the vast majority of his drinking was post driving.

[99] In summary on this first point, Mr. Nathoo told multiple lies to police. Although he did briefly suggest to the breath technician and to Constable Walker that he had had something to drink when he came home, he did not persist in this position nor did he ever suggest that he had consumed anything close to the 8 to 9.3 ounces of hard liquor after driving even though he now swears that is what happened. If in fact all he had really done was drink substantially after he got home, one would have expected that he would have been firm in that position with the police but he was not. This would have been a perfect defence as it would be obvious to anyone that if one drinks after driving it is not an offence. Instead, Mr. Nathoo decided to take a different course and to suggest that he had only been drinking a small amount and that he had done so just before he left the bakery. This seriously undermines his evidence before this Court at trial to the effect that the vast majority of his drinking was post driving.

[100] Second, Mr. Nathoo was showing clear signs of impairment with Constable Ambrosia. He was unsteady on his feet and had trouble standing still. This makes no sense if Mr. Nathoo had consumed only 2.33 ounces at the bakery and had just consumed another 4 to 4.66 ounces of alcohol within the 5 minutes he says elapsed before Constable Ambrosia arrived as Mr. Nathoo testified. The 4 to 4.66 ounces of alcohol would have not had time to take effect as the evidence of Mr. Yen is that alcohol takes about 15 minutes to absorb. Clearly, this fact points towards the significant consumption of alcohol more than 15 minutes prior to the arrival of Constable Ambrosio. We know, of course, that Mr. Nathoo was driving 15 minutes before Constable Ambrosio arrived.

[101] Third, in my view, the erratic driving is not erratic driving associated with simple fatigue. The defendant had been operating the bakery for 20 years. This is apparently the first time he had ever fallen asleep at the wheel due to alleged fatigue. I accept that he was up early in the morning (3:30 AM) having only gone to bed around 11 PM the night before but no explanation was given as to why he would be falling asleep at the wheel due to fatigue for the first time in 20 years. His wife testified that he usually went to work at 4 or 4:30 AM so what he was doing on March 15, 2015 would not appear to be out of the ordinary for him. In my view, the prolonged poor driving over an extended distance is much more consistent with impaired driving due to alcohol consumption than it is with respect to a tired driver. While it is difficult to generalize, it is my view that common sense suggests that a tired driver would more likely pull over whereas an intoxicated driver, whose judgment is impaired, would not. I also emphasize that the erratic driving point is only one part of my analysis and needs to be considered in the context of the evidence as a whole.

[102] Fourth, Mr. Nathoo's story makes no sense in light of the chronology of facts which cannot be seriously contested. Mr. Nathoo himself is not sure on the specific time that he arrived home and this is understandable. The police officers, on the other hand, had detailed notes as to when they arrived and when they left and this is to be expected and is reasonably reliable. There were minor conflicts in the chronologies of the two police officers but this too is to be expected.

[103] My view of the evidence is that the following is what occurred in terms of timing:

4:32 PM – the 911 call is made. The call lasted for three minutes and twenty-five seconds. The evidence from the civilian witnesses is that they made the call as soon as they got off of the 427 Highway at Dundas.

4:35 to 4:36 PM - dispatch call on the police radio. Constable Ambrosio said it was 4:36 PM and Constable Walker said it was 4:35 PM.

4:42 PM - It is my view that Mr. Nathoo must have arrived home at approximately 4:42 PM at the earliest. It may well have been a minute or two later. Constable Walker agreed with the information contained in the Google map marked as Exhibit 5 which said it would take 13 minutes to drive from 427 and Dundas to Mr. Nathoo's home. We know that the 911 call was placed at 4:32 PM when the civilian witnesses and Mr. Nathoo were at 427 and Dundas. An arrival time of 4:42 PM is generous to Mr. Nathoo's version of events.

4:44 PM - Constable Ambrosio arrives at the home of Mr. Nathoo.

4:44 PM to 4:54 PM - Mr. Nathoo remains within the view of Constable Ambrosia for approximately 10 minutes. Mr. Nathoo is already unsteady on his feet and smells of alcohol.

4:54 PM - Constable Ambrosio leaves the home (and this is noted by his dispatch at 4:57 PM.). We don't know the exact time Constable Ambrosia left but we know that it would have been a few minutes before 4:57 PM and that he was at the residence for about 10 or 11 minutes.

4:55 PM - Constable Walker arrives at the residence and Mr. Nathoo is within his view for the rest of the time except for a brief moment when Mr. Nathoo changed his pants and it is not suggested that alcohol was consumed at this time.

5:12 PM - Mr. Nathoo is placed under arrest.

5:27 PM - Rights to counsel are given. Mr. Nathoo does not wish to speak to a lawyer.

[104] The defendant's story makes no sense in light of the foregoing chronology. He could not have arrived home before 4:42 pm. Constable Ambrosia arrived at 4:44 PM. He testified that Mr. Nathoo answered the door. This is much more consistent with the chronology than Ms. Nathoo's testimony that she answered the door. As the defendant would have it, he arrived home at around 4:40 PM and spoke to his wife. He said he drank 4 to 4.6 ounces of alcohol which took two minutes and then he took a shower for five minutes which would take him to 4:47 PM. He also said that 10 minutes elapsed between the time that Constable Ambrosio left and Constable Walker arrived. He also says he consumed another 4 to 4.6 ounces of alcohol between the time that Constable Ambrosio left and Constable Walker arrived. The objective facts seriously undermine this chronology from Mr. Nathoo. It is doubtful that he could have arrived home before 4:42 PM. Even if he could have arrived at 4:40 PM there was insufficient time to speak to his wife; consume 4 to 4.6 ounces of alcohol secretly without his wife seeing him and get himself up into the shower all before 4:44 PM when we know Constable Ambrosio arrived. Moreover, on the chronology as I have found it, no more than a minute or two could have passed between the time that Constable Ambrosio left and Constable Walker arrived. There was not time to secretly consume another 4 to 4.66 ounces of alcohol with his wife nearby. As indicated, the defendant suggested 10 minutes passed between the time that Constable Ambrosio left and Constable Walker arrived and this is not possible in my view.

[105] Moreover, common sense must be brought to bear on the analysis of Mr. Nathoo's evidence. We know from the Intoxilyzer tests that Mr. Nathoo drank a large amount of alcohol (approximately 10 to 11 ounces of 40% alcohol). We also know that he did not drink in front of his wife as his wife did not approve of it. She testified that he never drank at home unless a brother or a friend came over and that she had never seen him drunk. She clearly did not like him drinking and she did not drink herself. On his Ms. Nathoo's evidence, it must have been the first time in 40 years that she had ever seen him drinking alone at home when she allegedly saw him sleeping on the couch with the bottle close by. As a matter of common sense and logic, given the context that his wife did not like to see him drinking, is it more likely that Mr. Nathoo was drinking at the bakery office after his wife left at 2:30 PM and before he left at 4 PM when he had the bakery to himself or is it more logical to think that he drank 8 to 9.3 ounces of hard liquor in perhaps 2 to 4 minutes in the house where his wife was located only steps away (and had apparently just asked him when he arrived home if he had been drinking to which he replied that he had not) and he was trying to conceal his consumption of alcohol from her and police officers were knocking at his door? The answer is obvious particularly when one looks at the evidence as a whole including the erratic driving which took place on his drive from the bakery to his home. Mr. Nathoo engaged in the consumption of a substantial quantity of alcohol prior to driving.

[106] Further, I accept the evidence of Constable Walker that the bottle that Constable Walker was shown by Mr. Nathoo was sealed. Constable Walker has no reason to make this up. He did not know what the defence is going to be. I do not know why he was shown a sealed bottle-perhaps Mr. Nathoo was trying to establish that he had not been drinking.

[107] As concerns Ms. Nathoo's evidence, she admitted discussing her evidence and the evidence of her husband on numerous occasions prior to her testimony. It is difficult to rely upon her evidence in the circumstances. I also found her willingness to call the police officers "liars" every time they said something that she disagreed with to be unusual and unfair. I do not believe her evidence that she found her husband with an open bottle of alcohol beside him. On her evidence, she had never seen him drinking in the house in 40 years (except when a brother or friend came over) so this event was a virtual once-in-a-lifetime event as she would have it. Similarly, the fact that she would ask her husband if he had been drinking the moment he walked in the door suggests to me that she has not been candid as to what she observed about her husband that day. I believe she observed that he had been drinking and was exhibiting signs of it and that is why she asked-not because he was 15 or 20 minutes late. I also do not believe her evidence that she answered the door when Constable Ambrosia knocked or that her husband was upstairs taking a shower at any time. Constable Ambrosia had no reason to lie when he testified that Mr. Nathoo answered the door-he had no inkling of any defence that would be raised by the defendant down the road.

[108] I would add that not only do I disbelieve the evidence of Mr. Nathoo and Ms. Nathoo, it raises no reasonable doubt in my mind. It is clearly a fabricated story which has no basis in reality. The substantial drinking that Mr. Nathoo undertook occurred before he drove home from the bakery.

[109] In conclusion on this issue, the presumptions of identity in both s. 258(1)(c) and (d.1) apply and have not been rebutted. As a result, the blood-alcohol readings of 185 mg of alcohol in 100 mL of blood in 176 mg of alcohol in 100 mL of blood prove the over 80 charge beyond a reasonable doubt. There will be a finding of guilt on this charge.

Issue 2 – Has the Crown proved beyond a reasonable doubt that Mr. Nathoo operated a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(a) of the Code?

Legal Principles and Analysis

[110] The following test for proof of impaired care or control of a motor vehicle was stated by Labrosse J.A. for the Ontario Court of Appeal in R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont.C.A.) at 384 and affirmed by the Supreme Court of Canada at , [1994] 2 S.C.R. 478:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[111] The presumptions of identity in both s. 258(1)(c) and (d.1) apply and, together with the evidence of the expert Mr. Yen, assist the Crown in proving the impaired driving charge in this case. Mr. Yen expressed the view that anyone with a BAC of over 80 would be impaired in their ability to operate a motor vehicle and I accept that opinion. Further, even without that opinion the other evidence of impairment on the ability to operate a motor vehicle is overwhelming: the erratic driving over an extended period; the substantial consumption of alcohol which I have found occurred prior to the driving; unsteadiness on his feet as noted by Constable Walker very shortly after the driving and clear intoxication and impairment shown on the breath room video which can be used to infer impairment at the time of driving when considering all the circumstances.

[112] Accordingly, there will be a finding of guilt on the impaired driving charge as well.

CONCLUSION

[113] In conclusion, I find that Mr. Nathoo is guilty of both the over 80 and impaired driving charge. I will raise with the parties the question of whether one of the charges should be stayed.

Released: April 15, 2016

Justice Paul F. Monahan