Court File and Parties

Court File No.: Walkerton 14-364 Date: 2016-05-31 Ontario Court of Justice

Between: Her Majesty the Queen — and — James Schell

Before: Justice K.L. McKerlie

Heard: April 14, 2015 and October 7, 2015 with written submissions filed

Reasons for Judgment released: May 31, 2016

Counsel:

• M. Poland, counsel for the Crown
• B. Starkman, counsel for the defendant James Schell

Judgment

McKerlie J.:

Charges

[1] James Schell is charged with the May 3, 2014 offences of impaired operation of a motor vehicle and operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of his blood, contrary to ss. 253(1)(a) and (b) of the Criminal Code.

[2] At the request of counsel, this matter proceeded by way of a blended Charter voir dire and trial. At the conclusion of the crown's case, the defence abandoned the Charter applications. The trial evidence was heard on April 14 and October 7, 2015. The trial was then adjourned to permit counsel to prepare written submissions, which were completed by December 31, 2015. I thank both counsel for their thorough and well prepared submissions.

Overview

[3] After a night of drinking at a house party, James Schell made a decision to drive home. He estimated that his residence was about 600 meters or a 30 second drive from the house party. He did not make it home. During that short drive, he collided with a parked pickup truck, causing significant front end damage to his vehicle.

[4] Mr. Schell ran from the scene and concocted a plan to obstruct justice in an attempt to escape liability. His wife was still at the house party. Mr. Schell ran back to the house party, stood in the driveway and tried to call his wife on her cell phone. Unbeknownst to him, the phone number he actually called was her work number. When his wife did not answer, he went into the house to find her. He put his cell phone in his pocket without ending the call. As a result, Mr. Schell's in person plea to his wife asking her to lie to the police was captured on voicemail at her place of employment.

[5] Mr. Schell went into the house, found his wife and persuaded her to falsely claim that she was the driver and return to the scene with him. His wife did as he asked. Together they ran to the scene of the collision. Mrs. Schell immediately announced that she was the driver. The eyewitnesses, who were on the scene with Constable Boyko, disputed her claim. When it became apparent that he had been observed fleeing from the scene, Mr. Schell abandoned the subterfuge and admitted he was the driver.

[6] Hanover Police Service Constable Boyko, who had been dispatched at 9:44 pm to attend the collision scene, recognized Mr. Schell as an Ontario Provincial Police officer. Constable Boyko omitted from his notes any reference to the initial assertion that Mrs. Schell was the driver. He also failed to share that information with his sergeant, who arrived to take over the investigation a few minutes later.

[7] Based on his observations of Mr. Schell's physical condition, including the odour of an alcoholic beverage on his breath, red and watery eyes, slightly slurred speech and a little unsteadiness or swaying, the fact that Mr. Schell had collided with a parked vehicle and the fact that Mr. Schell had fled from the scene on foot, Sergeant DeGroot formed reasonable and probable grounds to arrest Mr. Schell for impaired driving. He placed Mr. Schell under arrest at 10:05 pm and gave him the rights to counsel, caution and the breath demand. He also arranged for Constable Boyko, a qualified breath technician, to return to the station and conduct the breath tests.

[8] Sergeant DeGroot transported Mr. Schell to the police station. Steps were taken to facilitate Mr. Schell's rights to counsel. Constable Boyko prepared the approved instrument and was ready to receive breath samples at 10:30 pm. Mr. Schell's lawyer did not call the detachment until 11:36 pm. Mr. Schell exercised his rights to counsel from 11:37 until 11:51 pm. As a result, the first breath sample at 11:55 pm was taken more than two hours after the time when the offence was alleged to have been committed, which was shortly before 9:43 pm.

[9] Accordingly, the presumption of identity is not available to the crown. The crown therefore relies upon expert evidence from a forensic toxicologist, Rachelle Wallage, to "relate back" or "read back" the results of the breath tests to the time of the alleged offence.

Issue

[10] The issue is whether the crown has discharged its onus of proving beyond a reasonable doubt that, at the time the offence was alleged to have been committed, Mr. Schell's ability to operate a motor vehicle was impaired by alcohol and that he had more than 80 mg of alcohol in 100 ml of his blood.

[11] It is the defence position that:

1. Mr. Schell's poor driving was as a result of being distracted by using his cell phone rather than impairment by alcohol;

2. Mr. Schell engaged in bolus drinking by consuming approximately 4 ounces of rye whiskey only a couple of minutes before getting behind the wheel of his vehicle;

3. The observations made by the police officers and civilian witnesses consistent with intoxication or impairment do not reflect Mr. Schell's state of sobriety at the time when the offence was alleged to have been committed; and

4. Although Mr. Schell's projected blood alcohol concentration related back to the time when the offence was alleged to have been committed was more than 80 mg of alcohol in 100 ml of his blood, such a calculation includes alcohol consumed in a bolus drinking scenario. If alcohol consumed within 15 minutes of the last driving is removed from the calculation, Mr. Schell's blood alcohol concentration did not exceed 80 mg of alcohol in 100 ml of his blood.

The accused, James Schell, is presumed to be innocent and is not required to prove or disprove anything. The onus of proof is on the crown and never shifts. The standard of proof is high—proof beyond a reasonable doubt. Mr. Schell is entitled to the benefit of any reasonable doubt on any issue.

Crown Evidence

[12] The crown's case consisted of:

1. the testimony of three civilian witnesses: Betty Catalano, Hailie Nichols and Gordon Jarvis, all of whom made observations of Mr. Schell at the scene of the collision;

2. the testimony of Hanover Police Service Constable Michael Boyko, a qualified breath technician, who was the first officer on the scene and was later assigned to conduct the breath tests;

3. the testimony of Hanover Police Service Sergeant Robert DeGroot, who arrested Mr. Schell for impaired driving;

4. a transcript of the recording inadvertently left on the voice mail at his wife's place of employment and photographs of the telephone display showing the time of the call at 9:42 to 9:43 pm (Exhibits 3 and 5);

5. the expert evidence of Rachelle Wallage, a forensic toxicologist with the Centre of Forensic Sciences, who performed various calculations at the request of both the crown and defence and also testified respecting the pharmacological and toxicological effects of alcohol on the human body.

Civilian Witnesses

[13] At 9:44 pm, Constable Boyko was dispatched to the scene of the collision, which had been reported by Betty Catalano. Ms. Catalano heard the sound of the collision outside her house and immediately ran to the window. She was at the window less than 5 seconds after hearing the noise. She saw a man, later identified as Mr. Schell, exit the vehicle and run from the scene. She described him as running very fast and not having any difficulty running. Ms. Catalano immediately went outside to investigate. She spoke to the owner of the vehicle by phone and then called the police to report the collision. She estimated that she called 911 within 2 minutes of seeing the man exit the vehicle.

[14] Ms. Catalano testified that the police attended within a very short period of time after her call to 911. As she was explaining what had happened to Constable Boyko, Mr. Schell and his wife came running around the corner. She heard Mrs. Schell say, "I was driving, I was driving". Ms. Catalano told the officer that Mrs. Schell was not driving, it was Mr. Schell who was driving.

[15] 15 year old Hailie Nichols looked out her bedroom window when she heard the sound of the collision. She saw the Schell vehicle trying to move forward, grinding against the pickup truck and then she saw the vehicle back up and heard the engine stop. She saw Mr. Schell run from the scene and later saw him return with his wife. She agreed that he appeared to be running and walking normally.

[16] Ms. Nichol initially testified that she recalled Mr. Schell telling the officer that his wife was driving and that she had gone back to get him at the party. In cross examination, she agreed that it might have been Mrs. Schell herself who alleged that she was the driver.

[17] The third civilian witness was the owner of the pickup truck, Gord Jarvis, who had parked his pickup truck on the street in front of his house. He arrived home less than five minutes after receiving a phone call about the collision. Mr. Jarvis inspected the damage to both vehicle. There was damage to his truck's back bumper, but the damage to the front end of the car was more extensive. Mr. Jarvis testified that the car had been abandoned a short distance behind his truck such that the car was blocking his driveway.

[18] When the police arrived shortly thereafter, Mr. Jarvis followed Ms. Catalano to the cruiser. He noticed a man and woman appear, who were later identified as Mr. and Mrs. Schell. It was his impression that Mrs. Schell identified herself as the driver and that Mr. Schell appeared to know the police officer on the scene.

[19] Mr. Jarvis recalled hearing Mr. Schell speak and noticed that his words were not clear. He believed Mr. Schell's speech was impaired, which he described as maybe "drink related". Mr. Jarvis acknowledged that he did not mention impaired speech in his statement to the police, but explained that when asked to write out a statement he did not know how much detail to include. Mr. Jarvis agreed that Mr. Schell appeared to be walking normally.

[20] When pressed in cross examination about what it was that led him to the conclusion that Mr. Schell's speech was impaired, Mr. Jarvis replied, "Well, I'm 49 years old. I've been around individuals that have consumed a lot of alcohol before and it sounded very similar to those situations where somebody may have consumed too much alcohol".

Constable Boyko

[21] Constable Boyko was the first officer on the scene. He testified that he was dispatched at 9:44 pm to investigate a male person who had failed to remain at the scene of an accident. He estimated that he arrived on the scene at approximately 9:49 pm. He observed a pickup truck with rear end damage, a Toyota vehicle behind it with damage to the right front corner and debris on the road. He spoke to a number of the witnesses who had gathered, including Betty Catalano. He learned that a tall male had exited the vehicle, ran from the scene and there was no one else in the suspect vehicle.

[22] Constable Boyko testified that while he was talking to Anna Schell by the rear of his police cruiser, James Schell walked up and identified himself as the driver of the vehicle. Under further questioning, Constable Boyko testified that Mrs. Schell first approached him and told him that she was driving the vehicle, which excited people in the crowd who said that she was not the driver. He separated her from the crowd, explained he knew she was not the driver and that she needed to tell the truth. Mrs. Schell then admitted that she was not the driver. As she did so, Mr. Schell walked up the street toward Constable Boyko and said, "Boyko, I'm fucked, I was driving".

[23] Constable Boyko contacted Sergeant DeGroot to take over the investigation because he recognized Mr. Schell as an Ontario Provincial Police officer, whom he knew through work. Given that the crowd was agitated and had identified Mr. Schell as the driver, Constable Boyko told Mr. Schell to remain at the rear of the cruiser and away from the crowd.

[24] Constable Boyko observed that Mr. Schell's eyes were bloodshot and he had the odour of an alcoholic beverage on his breath. The officer stated, "I thought at that point his speech was slurred".

[25] When Sergeant DeGroot arrived, Constable Boyko told him about the accident and that Mr. Schell was the driver and an Ontario Provincial Police officer. Constable Boyko did not tell his Sergeant that Mr. Schell's wife had initially lied by alleging she was the driver, nor did he make any reference to that information in his notebook. When asked why not, Constable Boyko indicated that he had given Mrs. Schell a second chance to come clean, she did and he considered that part of the investigation over.

[26] When Constable Boyko left the scene for the police station in order to prepare the Intoxilyzer, he gave Mrs. Schell a ride so that she could get away from the people who had gathered at the scene. He did not interview her.

[27] Constable Boyko arrived at the detachment at 10:21 pm and prepared the approved instrument, which was ready to receive breath samples at 10:30 pm. The first sample was not taken until almost an hour and a half later at 11:55 pm, more than two hours after the time of the alleged offence.

[28] Constable Boyko explained that he assisted Sergeant DeGroot in facilitating Mr. Schell's rights to counsel by waiting in the booking room for the lawyer to call. When the phone rang at 10:40 pm, it was a representative from the Ontario Provincial Police Association, who spoke to Mr. Schell. At 10:43 pm, the representative told Constable Boyko that he would contact a lawyer for Mr. Schell. The lawyer called the detachment at 11:36 pm. Mr. Schell exercised his rights to counsel from 11:37 pm to 11:51 pm.

[29] After Mr. Schell exercised his rights to counsel, Constable Boyko conducted the breath tests using the approved instrument, namely an Intoxilyzer 8000C. The first breath sample was taken at 11:55 pm. The results of analysis were 100 mg of alcohol in 100 ml of blood. The second breath sample was taken at 12:26 am. The results of analysis were 90 mg of alcohol in 100 ml of blood.

[30] At the detachment, Constable Boyko detected the odour of an alcoholic beverage on Mr. Schell's breath and observed that his eyes were bloodshot. The officer confirmed that he believed Mr. Schell's speech was slurred when he interacted with him at the scene of the accident, but in speaking to Mr. Schell at the station, he described Mr. Schell's speech as "fair", which he explained was not quite normal, but not slurred.

[31] Based on his observations of Mr. Schell, namely that he had fled the scene of an accident, had blood shot eyes, the odour of an alcoholic beverage on his breath and slurred speech, and the results of the breath tests, Constable Boyko formed the opinion that Mr. Schell's ability to operate a motor vehicle was impaired by alcohol. The officer quantified the degree of impairment as "slight".

[32] Under cross examination, Constable Boyko estimated that Mr. Schell arrived on the scene approximately 5 minutes after his own arrival. He confirmed that he saw Mr. Schell walk up while he was speaking with Mrs. Schell and that he had been speaking to her for a minute or two, long enough to tell her that he knew she was not driving and not to get herself into more trouble.

[33] The officer confirmed he observed that Mr. Schell's eyes were bloodshot, which he distinguished as being different than red from crying. He also confirmed that once he spoke to Mr. Schell more at the station, he could not be sure that Mr. Schell's speech had been slurred at the scene or whether it was just the way he spoke. He testified that he gave Mr. Schell the benefit of the doubt, but added that Mr. Schell's speech was not completely normal. He confirmed that Mr. Schell's speech did not change over the course of the night, it was his assessment of Mr. Schell's speech that had changed. He also confirmed that he did not notice Mr. Schell to be unsteady or observe any additional indicia.

Sergeant DeGroot

[34] Sergeant DeGroot testified that at 9:48 pm, he received a radio call for a collision on 2nd Street in Hanover. Constable Boyko was in attendance and requested that he attend to take over as the investigating officer.

[35] Upon his arrival at 9:50 pm, Sergeant DeGroot saw Mr. Schell, who he knew was an Ontario Provincial Police officer, standing beside the cruiser with a woman. There was a crowd of very unhappy people around Constable Boyko. Sergeant DeGroot observed damage to the rear of the pickup truck and significant damage to the front end of the Toyota vehicle, which had radiator fluid leaking all over the place. He concluded that the Toyota vehicle was inoperable and had sustained approximately $7-8,000.00 damage. The Toyota vehicle was five meters behind the pickup truck and offset toward the roadway.

[36] After making sure no one was hurt, Sergeant DeGroot spoke to Constable Boyko, who informed him that Mr. Schell was the driver who struck the pickup truck. Before speaking to Mr. Schell, Sergeant DeGroot notified the Ontario Provincial Police that one of their officers had been involved in a crash and made sure that the crowd was settled. He believed that the crowd was upset because Mr. Schell initially ran away.

[37] Sergeant DeGroot then spoke to Mr. Schell. Mr. Schell indicated that he was the driver, he had been texting and that was the reason for the crash. Sergeant DeGroot detected the odour of an alcoholic beverage on Mr. Schell's breath and observed that Mr. Schell was a little unsteady on his feet, which he described as swaying a little bit. He described Mr. Schell's eyes as red and watery and his rapid speech as slightly slurred.

[38] Based on his observations of Mr. Schell's physical condition, the fact that Mr. Schell had collided with a parked vehicle and the fact that Mr. Schell ran from the scene, Sergeant DeGroot had reasonable and probable grounds to believe that Mr. Schell's ability to operate a motor vehicle was impaired by alcohol. Sergeant DeGroot explained that generally speaking a person does not hit a parked vehicle. He added that it is not unusual for vehicles to be parked on the street in that particular location.

[39] At 10:05 pm, Sergeant DeGroot placed Mr. Schell under arrest for impaired operation of a motor vehicle. He then read to Mr. Schell the rights to counsel, caution and the breath demand. When Sergeant DeGroot asked if he understood the breath demand, Mr. Schell replied, "I am a breath tech and I hate people that do this. I am sorry for putting you in this position".

[40] Sergeant DeGroot made arrangements for Constable Boyko to conduct the breath tests and then transported Mr. Schell to the detachment. They arrived at 10:12 pm. He allowed Mr. Schell to contact a friend in order to obtain a phone number for a lawyer. Mr. Schell called his friend at 10:23 pm. Mr. Schell obtained the phone number for the Ontario Provincial Police Association. Sergeant DeGroot called that number and left Constable Boyko to facilitate the rights to counsel while he left the station to attend another call for service.

[41] Sergeant DeGroot testified that at no time during the investigation did anyone, including Constable Boyko, provide him with any indication of Mrs. Schell's involvement in the incident.

[42] Under cross examination, Sergeant DeGroot confirmed that his initial conversation with Mr. Schell was a couple of minutes before the arrest at 10:05 pm. He confirmed that Mr. Schell was standing up when he spoke to him and he noticed that Mr. Schell was swaying a bit, which he described as being a little unsteady. He confirmed that Mr. Schell was upset, talking very quickly and his speech was slightly slurred.

[43] Sergeant DeGroot confirmed that he has had other dealings with Mr. Schell as a fellow officer, but disagreed that Mr. Schell generally mumbles when he speaks. He did not recall Mr. Schell fumbling with his wallet or have any difficulty walking into the detachment.

Expert Evidence

[44] I now turn to the testimony of the forensic toxicologist, Rachelle Wallage, and the Centre of Forensic Sciences report authored by Dr. Marie Elliot (Exhibit 8), the content of which was adopted by Ms. Wallage.

[45] Ms. Wallage's qualifications to provide expert opinion evidence respecting the operation of the Intoxilyzer, the absorption, distribution and elimination of alcohol in the human body and the pharmacological and toxicological effects of alcohol on the human body were not in dispute.

[46] In this case, the crown is not able to rely upon the presumption of identity. Therefore, Ms. Wallage provided the calculation required to "relate back" or "read back" the results of analysis of the breath samples taken at 11:55 pm and 12:26 am to the time when the offence was alleged to have been committed, which was estimated as "at or between approximately 9:30 pm and 9:44 pm".

[47] Ms. Wallage calculated that the projected blood alcohol concentration at or between approximately 9:30 pm and 9:44 pm is 95 to 150 milligrams of alcohol in 100 millilitres of blood (mg/100mL).

[48] The incident time between 9:30 pm and 9:44 pm was a range provided to Ms. Wallage for her calculations, which represents the outside limits of both the earliest and latest the last driving could have occurred. 9:44 pm was the time of dispatch. Mr. Schell relied upon a screen shot of his cell phone log (Exhibit 12) which showed a call to his wife at 9:43 pm, which was just after the collision. The phone log also shows text messages received at 9:32 pm. Mr. Schell indicated that as he was driving he pulled out his cell phone and started reading through text messages that he had received prior to leaving the party. Therefore, the collision could not have occurred prior to 9:30 pm.

[49] Ms. Wallage testified that a "read-back" or "back-extrapolation" is calculated to address the fact that the breath test readings are reflective of the time the samples were collected and the incident occurred sometime earlier. Accordingly, she takes the lowest reading and adds on the alcohol that could have been eliminated over the period of time between the breath test result and the time or range of time of the incident. She explained that as time elapses, a person eliminates alcohol. Therefore, when she does the read-back calculation, she takes the reading and adds on what that person could have eliminated over that period of time.

[50] As set out in the Centre of Forensic Sciences Report (Exhibit 8), the projected range is independent of gender, height, weight or age, but is dependent upon the following four factors:

1. A rate of elimination of alcohol from the blood ranging from 10-20 mg/100 mL per hour;

2. Allowance for a plateau of up to two hours;

3. No prior consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident;

4. No consumption of alcoholic beverages after the incident and before the breath tests.

[51] The only assumption challenged on this trial is the third assumption: no prior consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident. There is no suggestion whatsoever that Mr. Schell consumed alcohol after the incident and before the breath tests. With respect to the first two assumptions, Ms. Wallage testified that the practical result is that the low end of the estimate she provides is a very conservative estimate.

[52] With respect to bolus drinking or "no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident", Ms. Wallage explained that she defines large quantity in this case as a standard beverage, for example a standard bottle of beer, five ounces of wine or an ounce and a half of spirits.

[53] Ms. Wallage also testified that nothing in her review of the Intoxilyzer test record caused her any concern about the operation of the approved instrument.

Impairment and Intoxication

[54] On the issue of impairment, Ms. Wallage differentiated between impairment and signs of intoxication. She used the term "impairment" by alcohol or a drug to mean a decreased ability to perform a certain task. She explained that "intoxication" describes the physical or observable signs of alcohol consumption, for example: difficulty with speech, balance or motor coordination.

[55] Ms. Wallage testified that she differentiates those terms because individuals do not necessarily need to be demonstrating signs of intoxication in order to be impaired in their operation of a motor vehicle. She confirmed that the complete absence of indicia of gross motor skill impairment does not necessarily mean that the person's ability to operate a motor vehicle was not impaired by the consumption of alcohol.

[56] Ms. Wallage explained that alcohol impairs one's ability to divide the attention required for the various tasks associated with operating a motor vehicle. As set out at page 2 of the report:

The operation of a motor vehicle requires the integrity of a variety of sensory, motor, and intellectual faculties including divided attention, choice reaction time, judgment of speed and distance, risk assessment, vigilance and vision. The degree of impairment produced by alcohol is dependent upon BAC. Under controlled experimental conditions, impairment of divided attention tasks has been reported at BACs as low as 15 mg/100mL. Nevertheless, based on a critical review of the relevant scientific literature (laboratory, closed-course driving, crash risk assessment) it is my opinion that impairment with respect to driving becomes significant at a BAC of 50 mg/100mL and increases from then onward. Whether impairment is apparent depends upon the complexity of the driving task. For example, the impairing effect of alcohol is marked in driving situations that are unpredictable and that require a rapid and appropriate response. Impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance. In my scientific opinion, an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range [95 to 150 mg of alcohol in 100 ml of blood].

[57] In her viva voce evidence, Ms. Wallage explained that driving a motor vehicle is a divided attention task. A driver is required to pay attention to what is occurring in their environment and to have control of the car by steering, braking etc. Alcohol impairs a driver's ability to divide attention to these various tasks and also impairs choice reaction time when a person has to make an appropriate response in a timely manner.

[58] Ms. Wallage further explained that alcohol impairs judgment of speed and distance, meaning risk assessment. When people are drinking alcohol they overestimate their abilities and underestimate the risk associated with their actions. Impairment depends on the complexity of the task. If the demands increase on the driver, then there will be a greater likelihood of impairment.

[59] Ms. Wallage testified that anything that increases the demands on the driver (for example, texting, road conditions, weather conditions) will lend itself to impairment from alcohol becoming more pronounced.

[60] As to the issue of tolerance, Ms. Wallage testified that tolerance is when a person has been repeatedly exposed to alcohol. A person can be tolerant to the effects of alcohol, specifically intoxication, for example the ability to walk and maintain balance. However, with respect to the operation of a motor vehicle, a tolerant person does not have the opportunity to practice their response to a sudden or unexpected event when driving. So a tolerant individual can still demonstrate impairment, particularly when the task increases in complexity.

[61] Under cross examination, Ms. Wallage confirmed that in this case the term "large quantities" as used in the report is one standard beverage or more, but does depend on the individual. Large does not mean an abnormal pattern of consumption. The 15 minute time period for consumption of a standard beverage or more (i.e. large quantity) is used because that is what the timeframe is with respect to when she expects alcohol consumption to contribute to blood alcohol concentration.

Forward Projection Calculation

[62] At defence counsel's request, Ms. Wallage calculated a "forward projection", being the projected blood alcohol concentration on the following scenario:

• A male person weighing 210-215 pounds.
• Consumption of four and one-third 473 ml cans of 4% beer between 6:50 pm and 9:20 pm.
• Time of the incident 9:35 to 9:40 pm.

[63] In that scenario, the projected blood alcohol concentration is between 30 and 70 mg of alcohol in 100 ml of blood.

[64] Ms. Wallage confirmed that if an additional four ounces of 40% alcohol was quickly consumed within a few minutes of 9:30 pm, she would not take that additional alcohol into account in her calculation of the projected blood alcohol concentration at 9:35 to 9:40 pm because she would not know how much of the alcohol was absorbed based on the conservative approach she uses to calculate blood alcohol concentration. Ms. Wallage confirmed that at some point that four ounces would be absorbed. With that additional alcohol taken into account, her projected "back calculation" of blood alcohol concentration at 12:26 am (being the time of the second breath test) was between 30 and 100 mg of alcohol in 100 ml of blood.

[65] As to impairment, Ms. Wallage confirmed that with a blood alcohol concentration above 50 mg of alcohol in 100 ml of blood, the effects on impairment become significant. She agreed that it is not her testimony that everyone at a blood alcohol concentration of 50 will have their ability to operate a motor vehicle impaired by alcohol. She stated, "I can't say that everyone will be impaired at that blood alcohol concentration. Certainly, it would be a rare situation for an individual not to be impaired, but I cannot conclusively say everyone." She emphasized that it is her opinion that impairment becomes significant at 50 mg of alcohol in 100 ml of blood.

Defence Evidence

[66] I now turn to the defence evidence. Mr. Schell was the sole defence witness. He admitted that he struck the parked pickup when he was driving home from a birthday party at his friend's house.

[67] Mr. Schell described the party as "around the corner from my place", which he estimated was a thirty second drive or a distance of some 600 meters from his residence. Mr. Schell confirmed that he could have easily walked home from the party or asked his wife, who had not been drinking, to drive him home. Instead, he decided to drive home after consuming, by his estimate, approximately 4 1/3 (473 ml) tall cans of beer and approximately 4 ounces of 40% rye whiskey.

[68] Mr. Schell testified that he brought five 473 ml tall cans of beer to the party. He opened a beer as he arrived at the house just before 7:00 pm. He was drinking beer throughout the night. There was also "communal alcohol" on the island in the kitchen, including a bottle of Forty Creek rye whiskey. Mr. Schell testified that he consumed rye whiskey within ten minutes of finishing his last beer. He estimated that it took him less than five minutes to consume the rye whiskey and that he left the party just a couple minutes later.

[69] Mr. Schell testified that he was not aware of the time, but afterwards used the phone log on his cell phone to figure out the timing of events. He testified that his best estimate as to when he finished his last beer was between 9:20 and 9:30 pm. As to when he consumed the rye whiskey, his estimate was between 9:30 and 9:35 pm, a couple of minutes after he finished the beer. He estimated that his wife arrived at the party between 9:15 and 9:20 pm.

[70] As to when he decided to go home, Mr. Schell testified that he made that decision after he poured the drink and immediately before he consumed it. When asked by his counsel why he would pour four ounces of rye, drink the rye and then get into his car, Mr. Schell replied:

Well, there's no good reason other than like I had mixed the drink thinking I was going to stay at the party longer. Then when I had spoken to my wife and she said she's leaving and said the people were talking about going to the dance that they were all going to, I decided, well, I'm going home and I had just poured the drink and I drank it. (Transcript, page 104-105)

[71] When asked about how that might affect him when he got into the car, Mr. Schell, a police officer and qualified breath technician, testified:

My understanding is that I felt fine when I did it and I knew what I had drank throughout the rest of the night. It was a bad decision, but I made the decision to drink the drink. (Transcript, page 105)

[72] Mr. Schell testified that his residence was a thirty second drive from the party and it was his belief that he was going to be home before that drink was in his system and would be of any concern to him. In retrospect, he described it as "the worse decision I ever made in my life".

[73] Mr. Schell testified that after he said good bye to his wife, he went outside, got into his car and drove southbound on 17th Avenue. As he was driving, he pulled out his cell phone and started reading through text messages that he had received just before leaving the party. (The screen shot of the phone log showed the last text message was received at 9:32 pm.) Mr. Schell stopped at the stop sign and then turned onto 2nd Street. As he rounded the corner, he was looking down at his cell phone, which he was holding at eye level at the top of the steering wheel. He had noticed a pickup truck parked on the street. He stated, "I thought I had driven out far enough and I lowered my phone down and as I lowered it down I was at the very extreme corner of the black pickup truck and I struck it". (Transcript, page 111)

[74] The truck alarm sounded. Mr. Schell could see that no one was inside the vehicle and he reversed back toward the curb and put his vehicle in park. Mr. Schell disagreed with Ms. Nichols description that after the collision he drove forward into the car and was grinding against it. He testified that he put his car into reverse and backed up.

[75] Mr. Schell testified that he started to panic and the following things went through his mind:

That I just was being a complete idiot and driving and texting and driving ...or at least looking at text messages while driving my car, which I shouldn't have been doing and it caused an accident, which is not okay. I was thinking of the fact that I just had drank what I drank and that by the time the police got there that I was, my whole life was over, too much--sorry. I don't know what to say other than I've never been in that situation before and I've never felt, I've never felt what I was feeling at that time. (Transcript, page 111)

[76] Mr. Schell exited his vehicle and started running back to the house party, which he estimated to be 200 or 300 meters from the intersection. It took him a couple of minutes to get back to the party. He stopped at the end of the driveway and phoned his wife using his cell phone. He intended to call her cell phone number.

[77] When his wife did not answer her phone, Mr. Schell went inside the house to find her. What he did not know at the time was that he had not called his wife on her cell phone. The number he called was her work number.

[78] Mr. Schell also did not realize that he had not ended the call before putting the phone in his pocket. The end result is that his subsequent in person conversation with his wife was recorded on the voicemail at her place of employment. Her employer contacted the police and turned over the voice mail recording. Photographs of the phone display (Exhibit 5) show that the time of the call was 9:42 or 9:43 pm, which corresponds to the screen shot of Mr. Schell's phone log (Exhibit 12) which shows a call placed at 9:43 pm.

[79] A transcript of the voice mail recording was filed, on consent, as Exhibit 3. The recording reveals a plan by Mr. Schell to attempt to avoid responsibility for the collision. In the recorded conversation, his utterances include the following:

• I just came around the corner and hit a car.
• You can go back there and say I hit the car
• I made a mistake, okay. I shouldn't have left.
• All you have to do is when you get there … you just say, I came around the corner and I didn't see that car. ... You can't get in trouble for this, you can't get in trouble.
• Just say, I came around the corner. I hit the, I hit the car. I didn't see it and I hit the car. That's all you have to say. And I went back to this house and I called the police.

[80] Mr. Schell testified that he found his wife in the kitchen and asked her to come to talk to him in the washroom. He stated:

I told her that I'd just been in a car accident with our vehicle and she started to freak out and I was freaking out. And I asked her to go back to the scene or come back and say that she was driving the vehicle instead of me. (Transcript, page 114)

[81] As to what possessed him to get his wife involved in that plan, Mr. Schell replied, "I have no idea. It was all, I said driving was the worse decision of my life, but that was probably worse. ... I wasn't myself, I was in a complete other place and was looking for a way out…" (Transcript, page 114-115)

[82] Mr. Schell estimated he had been in the house with his wife for probably a couple of minutes before they went outside. As he got to the driveway, he saw a Hanover police cruiser proceeding southbound on 17th Avenue and going straight past their location.

[83] When asked what went through his mind when he saw the cruiser, Mr. Schell testified:

I just couldn't believe what was happening. I knew that the police car was going to get back to the collision scene. There was going to be no one with my vehicle, that I was at fault, that I was the one driving. Cause my car keys are in the vehicle with my O.P.P. key chain on it. The seat in the car is all the way back as far as it will go and my wife's five foot two I think. I knew that I was screwed essentially… (Transcript, page 116)

[84] When he saw the cruiser, Mr. Schell tried to call the Hanover Police dispatch, but the call went straight to voice mail, so he hung up. As to why he placed that call, Mr. Schell replied, "I don't know. I was going to say that I was on my way back to the crash or we were on the way back to the...I was trying to justify the fact that there was no one at the collision scene". (Transcript, page 117). The screen shot from Mr. Schell's cell phone log shows a call being made at 9:47 pm.

[85] Mr. Schell testified that he told his wife to forget what he just said because the police were going to get to the scene first, he was screwed and he had to get back there. He started running back and his wife ran after him. They arrived at the scene of the collision in a couple of minutes.

[86] Mr. Schell testified that he approached the driver's side of the cruiser, saw Constable Boyko standing at the front of the cruiser and called him over. He testified that he told the officer that he was back, that it was his vehicle and he was driving. He heard his wife repeating saying in a loud voice, "I was the driver, I was the driver". Mr. Schell testified that he started screaming at his wife and told her to basically shut up. He said, "It's over, just don't say anymore, shut your mouth". (Transcript, page 124)

Mr. Schell's State of Sobriety

[87] Mr. Schell testified that when he was driving before the accident, he felt fine and was not feeling the effects of alcohol. When asked whether he felt the effects of alcohol after the accident, Mr. Schell replied:

From the time I hit the back of the truck until the time I got home that night I did not feel like myself. I felt, I was in panicking mode. I'd been crying a few different times. I was freaking out and was in another world the whole, everything was happening and I was panicking. I don't know what else to say. I was just, I wasn't feeling with it. (Transcript, page 124)

[88] Defence counsel then asked, "Are you able to comment one way or the other on your state of sobriety, based on this, after the accident?" Mr. Schell replied, "All I know is I was a mess. I was panicking. I was freaking out."

[89] Defence counsel persisted and asked, "But before the impact did you feel any effects at all of the alcohol you consumed at the party that night?" Mr. Schell replied, "When I left the party, I felt fine".

[90] As to the observations made by the officers at the scene, Mr. Schell testified that he would not be surprised if his eyes were red and watery because he had been crying. He did not believe he was unsteady. He pointed out that he had run quite a distance and felt fine. He also pointed out that he was leaning against the cruiser after he spoke to Constable Boyko.

[91] As to the observations of slurred speech, Mr. Schell indicated that people make fun of the way he talks or mumbles when he is excited or nervous. He testified that his nickname is "Marbles", being a reference to sounding like he is talking with a mouthful of marbles.

Alcohol Consumption

[92] When asked if he kept track of what he had to drink at the party, Mr. Schell testified the only reason he knew what he consumed was because he knew what alcohol he brought to the party. He brought five 473 ml cans of beer to the party. As to his estimate of 4 1/3 cans, Mr. Schell explained that he went to the washroom at one point and when he came out one of the cans, either his second or third beer, had been moved or cleaned up, so he opened a new one and started drinking. His best estimate was that he had consumed about a third of the can before it was removed.

[93] Mr. Schell testified that there was "communal alcohol" on the island in the kitchen. From that communal alcohol, he took a bottle of Forty Creek rye whiskey and poured it into a plastic "Solo" cup. He mixed the drink on the kitchen island. Mr. Schell confirmed that on the night in question, he did not measure the rye whiskey he consumed. His estimate of four ounces was based on an estimated amount he poured several days later into the same type of cup, which he then measured using a measuring cup.

[94] As to his drinking habits, Mr. Schell testified that in the past few years he has consumed more alcohol than he probably should have or too much at certain times. He sometimes uses it to help him sleep. He stated, "I've definitely abused alcohol at some points" and acknowledged that he has been abusing alcohol "for a number of years". When asked to estimate how much alcohol he consumed in an average week, Mr. Schell testified that he had been consuming 4 or 5 drinks on multiple nights in a week for a number of years.

Cross-Examination

[95] In cross examination, Mr. Schell confirmed that he could not say exactly how much rye he poured into the plastic cup, but several days later he drew a line on a similar cup to the level he believed he poured the rye and he measured that amount in a measuring cup.

[96] Mr. Schell confirmed that he intended to drink at the party and brought five tall cans of beer to the party. He confirmed that he drove his car to the party even though it was only about 600 meters from his residence. He confirmed that he could have walked home or taken a cab or asked his wife, who had not been drinking, to drive him home. He admitted that as a police officer he knew about the perils of drinking and driving and did not bother taking a safe way home.

[97] Mr. Schell testified that before he went to the party he had not decided whether he was going to drive home or leave his car at the party. He stated that he knew what he had to drink and made the choice to drive. He admitted it was a bad choice. When asked why he didn't walk home, Mr. Schell replied "stupidity and laziness".

[98] Mr. Schell acknowledged that he was not restricted to the five tall cans of beer he brought to the party and confirmed that additional alcohol was available to him at the party. He admitted that after he drank his supply of booze, he started drinking someone else's.

[99] When it was put to him that it would be a very foolish idea to drive even after having 5 tall cans of beer, Mr. Schell replied, "If I had drank the five tall cans of beer, I would have been staying at the party longer and I would not have driven my car". (Transcript, page 153)

[100] When it was put to him that on his evidence he drank not only 4 1/3 tall cans of beer, but also rye, Mr. Schell stated:

I decided to mix a drink. Like I said before, I was, I decided to mix a drink thinking I was going to stay longer at the party and then when I decided not to stay longer at the party and it was only a couple minutes after I drank that drink, I decided to leave and drive, yes. (Transcript, page 153)

[101] Mr. Schell admitted that a good option would have been to just leave the drink. He admitted that consuming the drink was a bad judgment call. He reiterated that he was not planning to drive home if he had consumed all five beers.

[102] When it was put to him that he drank more than "five beers worth" and still drove, Mr. Schell replied, "I drank four beers and part of the one beer and then I did have a drink right before I left, yes". (Transcript, page 154)

[103] When it was put to him that on his evidence the drink right before he left contained four ounces of liquor, Mr. Schell replied, "Well, I learned that after". When it was suggested that he must have known that at the time, Mr. Schell replied, "I knew that I poured rye into a cup to a level that I have drank before and I drank it". He admitted that a four ounce drink is a "powerful drink".

[104] When it was suggested that driving home after consuming a four ounce mixed drink was an error in judgement, Mr. Schell stated:

I thought I was going to be home in bed before I was going to have to worry about anything to do with that. ... Yes, it was a bad decision. (Transcript, page155)

[105] When pressed to admit that he displayed bad judgment not only by drinking and driving, but also by fleeing the scene of the collision, Mr. Schell stated, "It was a decision I made based on the facts in my head at the time. That I knew what I drank and where I was going. (Transcript, pages 156 - 157).

[106] Mr. Schell testified that he felt fine at the time he made the decision to drive, but admitted it was a bad decision. He did not believe that his prior consumption of 4 1/3 tall cans of beer impacted his judgment, but admitted that this was the only time in his life that he consumed that quantity of beer and liquor and drove a vehicle.

[107] Mr. Schell testified that when he made the choice to drive he did not believe that what he consumed would put him over the legal limit and he did not feel impaired. He stated, "I knew I had alcohol in my system, but I did not believe I was impaired. ... I didn't think it was a risk". (Transcript, page 158)

[108] Mr. Schell agreed that if he had been pulled over and had 50 mg of alcohol in 100 ml of his blood, he would have been in trouble. When asked if he thought he was over 50, Mr. Schell replied, "I don't know. I could've been. I could've been close to that, yes". (Transcript, page 159)

[109] Mr. Schell admitted that when he left the party, he crashed his car, backed up, got out and ran away. When it was put to him that he ran because he knew he had been drinking and should not have been driving, Mr. Schell replied:

I knew that I was completely panicking because I'd just caused an at-fault accident using my cell phone of all things, which is not okay on its own. I also knew that I smelled of alcohol likely based on the fact I'd just finished a drink and that by the time the police arrived I may be in trouble and I chose to run away. (Transcript, page 160)

[110] Mr. Schell admitted that he asked his wife to lie for him because he was going to engage in an effort to obstruct the course of justice. He admitted that he ran away because he thought he was going to be in trouble. He admitted that he ran away to escape the consequences of his actions. He also admitted that he committed a criminal offence when he left the scene of the accident to escape liability. He admitted that he made a number of bad decisions, but was reluctant to characterize it as bad judgment.

[111] It was put to Mr. Schell that when he got back to the scene he tried to launch his scheme to obstruct justice, but did not realize that he had been observed exiting the car by eye witnesses. It was further put to Mr. Schell that it was only after he realized the "jig is up" that he approached Constable Boyko and said he was driving. Mr. Schell's denials lacked conviction and were contradicted by the testimony of Constable Boyko and the civilian witnesses. The totality of the trial evidence establishes that Mr. Schell admitted that he was the driver only after the eyewitnesses disputed his wife's claim that she had been driving.

[112] When it was suggested that the ability to recall events can be affected by the consumption of alcohol, Mr. Schell stated, "Possibly, I don't know. … There was a lot of things that went on that night that made me--I was panicking, freaking out from the time I hit that truck. There was a lot of things that were a blur after that, I am being honest with you". (Transcript, page 171)

[113] When challenged about why he was telephoning the Hanover police, when all he had to do was return to the scene to speak to an officer, Mr. Schell replied, "I don't know. I was panicking. I was trying, I said, tried to wave down a car and it didn't see me and then I started trying to phone them. I don't know why I did that". (Transcript, page 172).

[114] It was put to him that it was his evidence in examination in chief that after he saw the police car go by, he knew he was in trouble and that is when he told his wife to abandon the plan to tell the lie. Mr. Schell agreed. The following exchange then occurred:

Q. So now your evidence is that you actually tried to wave that car down before you talked to your wife to tell her to try to stop the lie?

A. I did try to wave that car down, yes.

Q. Before you talked to your wife to tell her to stop the lie?

A. Probably yes.

Q. So were you trying to stop a police car so you could engage in the lie?

A. I don't know what was, what was going to happen when I saw it, the police car stopped. I don't know. I honestly don't know.

Q. All right, you don't know because you weren't thinking clearly because your mind was affected by the consumption of alcohol isn't that right sir?

A. I don't believe it was because of the consumption of alcohol. I believe that I was completely panicking. I was in tears and freaking out. I don't know any other word to put it. I was panicking. From the time I hit the truck to, through that whole time, I was in a complete state of panic and I don't know. I don't know what I was doing. (Transcript, page 174)

[115] In re-examination, Mr. Schell testified that he had no difficulty remembering the night in question because it was the worse night of his entire life. As to why he did not tell the officers on the scene about his recent consumption of alcohol, he stated:

In my mind, I didn't think it was going to matter. I knew that I smelled like alcohol, that I said I was driving my car, that Officer DeGroot had already sat me down in the back of his cruiser while we were talking and to me it was not going to help me at all at that time. (Transcript, page 177)

Analysis

[116] The issue is whether the crown has discharged its onus of proving beyond a reasonable doubt that Mr. Schell's ability to operate a motor vehicle was impaired by alcohol and that he had more than 80 mg of alcohol in 100 ml of his blood at the time when the offence was alleged to have been committed.

[117] The critical time is the time of the collision, which was a few minutes before 9:43 pm, not the time of arrest, which was at 10:05 pm.

[118] The starting point in the analysis is the presumption of innocence. Mr. Schell is presumed to be innocent and is not required to prove or disprove anything, including bolus drinking, the timing of events, or the cause of the collision.

[119] The onus of proof is on the crown and never shifts. The standard of proof is high—proof beyond a reasonable doubt. Any reasonable doubt on any issue must be resolved in favour of Mr. Schell. I am mindful that the principle of reasonable doubt applies to issues of credibility and reliability as well as to issues of fact.

[120] The test for determining proof beyond a reasonable doubt where credibility is in issue was set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742:

1. If I believe the evidence of the accused, I must acquit;

2. If I do not believe the evidence of the accused, but am left in reasonable doubt by it, I must acquit;

3. Even if I am not left in reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

[121] I have assessed the testimony of each witness on its own merits and in the context of the totality of the trial evidence. As emphasized in the often cited decision of the British Columbia Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354:

The credibility of interested witnesses ... cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. … The real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[122] In assessing the credibility and reliability of the witnesses, I take into account their opportunity and ability to make observations, their capacity to remember and relate the events in question, issues of sobriety, bias and interest, the completeness, consistency and reasonableness of their testimony and the manner in which it was given in both examination in chief and cross-examination.

[123] I accept the testimony of the forensic toxicologist, Rachelle Wallage, as credible, reliable and within the scope of her expertise to provide opinion evidence. In both examination in chief and cross examination, she answered questions in a fair, independent and unbiased fashion consistent with her role to assist the court.

[124] The civilian witnesses, Betty Catalano, Hailie Nichols and Gordon Jarvis, all presented as sincere and straightforward witnesses, who answered questions fairly in both examination in chief and cross examination. Their testimony assisted on the issues of the timing of events and the sequence of events after Mr. Schell returned to the scene.

[125] The testimony of Constable Boyko and Sergeant DeGroot was straightforward and unshaken in cross examination. Neither officer was prone to embellishment or exaggeration. In fact, Constable Boyko extended every courtesy to Mr. Schell and gave him the benefit of any doubt throughout his testimony, even second guessing his initial assessment of slurred speech.

Credibility of Mr. Schell's Testimony

[126] I now turn to Mr. Schell's testimony that he quickly consumed some four ounces of rye whiskey within minutes of leaving a house party and colliding with a parked pickup truck. Mr. Schell's testimony amounted to a bald assertion of bolus drinking that was both self-serving and uncorroborated. Having assessed Mr. Schell's testimony on its own merits and in the context of the totality of the trial evidence, I conclude that it was incredible, unreliable and unworthy of belief. I have reached that conclusion based on the totality of the following factors:

1. On the night in question, Mr. Schell clearly demonstrated that he was prepared to fabricate a lie in order to obstruct the police investigation and attempt to escape liability. By his own words and actions, Mr. Schell demonstrated the lengths he was prepared to go to attempt to escape liability. He ran from the scene. He then made a plan to obstruct justice. He persuaded his wife to falsely claim that she was the driver. His wife did as he asked. She ran back to the scene with him and announced that she was the driver. It was only when Mr. Schell realized that eyewitnesses had observed him fleeing from the scene that he abandoned the subterfuge and admitted that he was the driver.

2. Mr. Schell's trial testimony had no indicia of reliability with respect to either the time of consumption or the amount of alcohol he consumed. It was an unstructured evening of drinking and socializing at a birthday party. There was no "last call". Mr. Schell was under no time pressure to get home. He did not have a plan about how long he would stay at the party, nor was there a limit as to how much he could have to drink. He admitted that he was not aware of the time and used the phone log on his cell phone to reconstruct events after the fact. The phone log shows the time of the call to his wife, but does not provide information as to the timing of his alcohol consumption. Mr. Schell had no reason to track how much he had to drink or when he consumed it, nor did he do so. Mr. Schell admitted that the only reason he knew how much alcohol he consumed was because he knew how much beer he brought to the party. However, he also admitted that after he consumed his own alcohol, he started drinking someone else's. According to Mr. Schell, it was just by happenstance that he consumed only part of one of the cans of beer. Someone moved or cleaned up one of the beer cans when he was in the washroom. There was no reason for Mr. Schell to have taken note of how much beer was left in the can when he set it down before going to the washroom, nor did he. Furthermore, on his own evidence, Mr. Schell poured the rye whiskey freely, without measuring it, and only determined after the fact that the amount he poured approximated four ounces based his recollection several days later. Prior to the collision, there was nothing noteworthy about this particular night of drinking. Mr. Schell admitted that he regularly abused alcohol and consumed 4 or 5 drinks on multiple nights of the week.

3. In all the circumstances as described by Mr. Schell, including his wife's recent arrival at the party, the account of pouring a four ounce drink, downing it quickly, and then within minutes leaving to drive home (a distance of some 600 meters) was contrived, self-serving and incredible. I appreciate that people may do things that make little sense after a night of drinking, but Mr. Schell's evidence in this regard had no air of reality even in that context. On Mr. Schell's own evidence, his wife had just arrived at the party and he had decided to mix a drink thinking he was going to stay longer at the party. In those circumstances, it makes no sense for him to quickly down a stiff drink and not only be the first to leave, but also leave within a couple of minutes of consuming it. When he fled the scene and ran back to the party, his wife was still there. Mr. Schell's testimony respecting bolus drinking is nothing more than an after-the-fact invention.

4. Mr. Schell's testimony did not survive the scrutiny of cross examination. His already improbable testimony became more fluid as the internal inconsistencies mounted. His efforts to salvage his account fell flat, particularly his assertions that he tried to wave down the police cruiser as it passed by the location of the house party and that he would not have driven home if he had consumed all five tall cans of beer. Mr. Schell stated, "If I had drank the five tall cans of beer, I would have been staying at the party longer and I would not have driven my car". When it was put to him that on his evidence he drank "more than five beers worth" (i.e. four ounces of liquor in place of 2/3rds of a can of beer), Mr. Schell's response was "Well, I learned that after". Clearly, he had not been thinking about what he consumed in relation to his decision to drive. In circumstances where his wife had agreed to lie for him and, in fact, ran with him to the scene of the collision and repeatedly announced in a loud voice that she was the driver, Mr. Schell's testimony that he tried to wave down the passing police cruiser was incredible and appeared to have been an ill thought out aspect of his story, which emerged for the first time during cross examination. On the testimony of both Ms. Catalano and Constable Boyko, Mr. Schell came forward as the driver only after the lie was exposed.

5. The notion that Mr. Schell actually made a calculated decision that he could get home before an unmeasured quantity of rye whiskey entered his system was incredible, particularly in light of his decision to flee on foot. Had he made a calculated decision to drive home before the alcohol entered his system, there would have been no reason to panic and no reason to flee. An immediate report of the collision would have been the better way to protect his interests. I do not hold Mr. Schell to any higher standard because he is a police officer or was a qualified breath technician, but as such he obviously knew how to contact the police.

[127] In summary, I reject Mr. Schell's testimony as incredible and unreliable. The issue on this trial, however, is not whether he was a credible or reliable witness. The issue is whether on the totality of the evidence the crown has discharged its onus of proving beyond a reasonable doubt that Mr. Schell's ability to operate a motor vehicle was impaired by alcohol and that he had more than 80 mg of alcohol in 100 ml of his blood at the time of driving.

Crown's Case

[128] The crown's case is straightforward. After a night of drinking, Mr. Schell drove into a parked vehicle, ran from the scene and then concocted a plan to have his wife lie to the police by saying she struck the parked vehicle. Ordinarily, such a plan would be difficult for the crown to prove. In this case, Mr. Schell's plan to obstruct the police investigation was captured on voicemail. Mr. Schell admitted that he ran away to escape the consequences of his actions and that he left the scene of the accident to escape liability. Mr. Schell admitted that he asked his wife to lie for him because he was going to engage in an effort to obstruct the course of justice.

[129] Both the arresting officer, Sergeant DeGroot, and the qualified breath technician, Constable Boyko, formed the opinion that Mr. Schell's ability to operate a motor vehicle was impaired by alcohol. The results of Mr. Schell's breath tests read back or related back to the time of the collision were 95 to 150 mg of alcohol in 100 ml of blood, a level at which, in the opinion of the forensic toxicologist, an individual would be impaired in his ability to operate a motor vehicle.

"Over 80" Offence

[130] First, I will address the "over 80" offence.

[131] In R. v. Paszczenko; R. v. Lima, 2010 ONCA 615, [2010] O.J. No. 3974, the Ontario Court of Appeal addressed the issue of what the crown is required to prove in order to be able to rely upon the standard assumptions contained in expert toxicologist reports when the crown is precluded from relying upon the presumption of identity. The Court emphasized that there can be no dispute that the onus is on the crown to prove the facts underlying the expert's report, including the assumptions upon which the expert relies.

[132] In the present case, the facts relied upon by the forensic toxicologist have been proven beyond a reasonable doubt, namely the time of the incident, the Intoxilyzer results and the times of the breath tests.

[133] In addition to those facts, the expert opinion is premised on the following four assumptions:

1. A rate of elimination of alcohol from the blood ranging from 10-20 mg/100 mL per hour;

2. Allowance for a plateau of up to two hours;

3. No prior consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident;

4. No consumption of alcoholic beverages after the incident and before the breath tests.

[134] The only assumption that is in issue on this trial is the third assumption: no prior consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident. In her viva voce testimony, Ms. Wallage explained that she defines "large quantity" in this case as a standard beverage, for example a standard bottle of beer, five ounces of wine or an ounce and a half of spirits.

[135] In order to establish the factual underpinning for the expert opinion evidence upon which it relies, the onus is on the crown to prove beyond a reasonable doubt that Mr. Schell did not consume large quantities of alcohol, specified in this case as a standard drink or more, within approximately 15 minutes prior to the incident. Mr. Schell is not required to establish that he engaged in bolus drinking. The crown is required to prove a negative---that Mr. Schell did not engage in bolus drinking.

[136] Bolus drinking is a question of fact to be determined on the evidence or lack of evidence at trial. For the reasons given, I do not believe Mr. Schell's testimony that he quickly consumed a "large quantity" of alcohol within 15 minutes of the collision, nor does his testimony have sufficient probative value to raise a reasonable doubt. There is no credible or reliable evidence that "at least puts the possibility that the accused had engaged in bolus drinking in play" [Paszczenko; Lima, paras. 24, 32].

[137] On the third prong of the test in R. v. W. (D.), even if I am not left in reasonable doubt by the evidence of Mr. Schell, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

[138] I find that the crown can discharge its onus by relying upon a common sense inference that, in all the circumstances, a person in Mr. Schell's situation on the night in question would not ingest one standard drink or more within 15 minutes of driving. As the Court of Appeal held in Paszczenko; Lima at para. 29:

…Triers of fact may resort to a common sense inference in such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving: see Grosse, Hall and R. v. Bulman 2007 ONCA 169. As noted above, bolus drinking has been said to be a "relatively rare" phenomenon: Phillips at pp 158-162. "No bolus drinking" is therefore largely a matter of common knowledge and common sense about how people behave.

[139] In the present case, I have rejected Mr. Schell's evidence on this issue entirely. As expressed in R. v. Hall, 2007 ONCA 8 at para. 20:

Having done so, there was no evidence whatsoever of bolus drinking, nor was there any other evidence to undermine the common-sense inference of drinking at a normal pace, on which the trial judge was therefore entitled to rely.

[140] I find as a fact that the collision occurred several minutes prior to 9:43 pm, being the time Mr. Schell phoned his wife's work number. That time is consistent with Ms. Catalano's estimate that she called 911 within two minutes of the collision and Constable Boyko being dispatched to the scene at 9:44 pm.

[141] The crown has discharged its onus of proving beyond a reasonable doubt that Mr. Schell did not consume a "large quantity" of alcohol, defined as a standard drink or more, within approximately 15 minutes prior to the incident. Accordingly, as established by the expert evidence of Ms. Wallage, which I do accept, Mr. Schell's projected blood alcohol concentration at or between approximately 9:30 pm and 9:44 pm was 95 to 150 mg of alcohol in 100 ml of his blood.

[142] The crown has discharged its onus of proving beyond a reasonable doubt all the essential elements of the "over 80" offence.

Impaired Operation

[143] I now turn to the issue of impairment.

[144] As the Ontario Court of Appeal clearly and succinctly held in R. v. Moreno-Baches, 2007 ONCA 258, [2007] O.J. No. 1314:

Suffice it to say that this court's decision in R. v. Stellato (1993), 78 C.C.C. (3d) 380; aff'd (1994), 90 C.C.C. (3d) 160 (S.C.C.), remains the law in Ontario. That is to say, if there is sufficient evidence before the court to prove that an accused person's ability to drive is even slightly impaired by alcohol, the judge must find the accused guilty.

[145] The Court of Appeal restated that clear direction in R. v. Bush, 2010 ONCA 3453, at paragraph 47:

Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd, [1994] 2 S.C.R. 478. 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, and regard for the rules of the road: Censoni at para. 47.

[146] As emphasized by the Court of Appeal in the concluding paragraphs of Stellato:

Impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminal offence: courts should not apply tests which imply a tolerance that does not exist in law.

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.

[147] In this case, Mr. Schell attributes the cause of his collision with the parked vehicle to distracted driving while using his cell phone, not impairment by alcohol.

[148] The issue is not whether Mr. Schell was using his cell phone or whether his cell phone use contributed to the collision. The issue is whether the crown has discharged its onus of proving beyond a reasonable doubt that Mr. Schell's ability to drive was impaired to some degree by alcohol. The critical time is the time of the collision, not some later time in the police investigation. It is sufficient for the crown to prove that Mr. Schell's ability to drive was even slightly impaired by alcohol. The crown is required to prove impairment, not signs of intoxication.

[149] As explained by Ms. Wallage, whose expertise in this area I accept, alcohol impairs the ability to divide the attention required for the various tasks associated with operating a motor vehicle. Alcohol impairs judgment of speed and distance. People who consume alcohol overestimate their abilities and underestimate the risk associated with their actions.

[150] Mr. Schell testified that he noticed the pickup truck parked on the street. He stated, "I thought I had driven out far enough. I lowered my phone down and as I lowered it down I was at the very extreme corner of the black pickup truck and I struck it". His ability to judge speed and distance was clearly impaired by alcohol.

[151] Mr. Schell testified that he was checking messages on his cell phone while driving, which according to the testimony of Ms. Wallage increases the demands associated with the complex task of driving. It is evident that Mr. Schell both overestimated his abilities and underestimated the risk associated with checking messages while driving, which is entirely consistent with impairment of his ability to drive by the consumption of alcohol.

[152] Mr. Schell's immediate response to the collision was indicative of the disinhibiting effects of alcohol and its adverse effect on decision making and judgment. He ran from the scene and concocted a plan to have his wife lie to the police for him. While doing do, he dialed the wrong number for his wife. He did not realize his mistake at the time. He then put the phone in his pocket without ending the call. Again, without realizing that he did so. The difficulties he experienced using his cell phone immediately after the collision and his decision-making immediately following the collision are both indicative of impairment by alcohol.

[153] I have considered the fact that Mr. Schell managed to run from the scene and return on foot without apparent difficulty and without stumbling or demonstrating noticeable unsteadiness apart from swaying slightly as he stood. Ms. Wallage explained that impairment of the ability to drive may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance. Mr. Schell described himself as an experienced drinker who had abused alcohol for a number of years. The visible signs of alcohol intoxication were slight—a bit of a sway, bloodshot eyes and slightly slurred speech. The categorization of the various signs of intoxication as "slight" is not inconsistent with impairment of the ability to drive, particularly for an experienced drinker.

[154] The crown is not required to prove that Mr. Schell's ability to operate a motor vehicle was significantly impaired by alcohol. Impairment may be established where the prosecution proves any degree of impairment from slight to great: Bush, Stellato. If there is sufficient evidence to prove that an accused person's ability to drive is even slightly impaired by alcohol, the judge must find the accused guilty: Moreno-Baches.

[155] The totality of the trial evidence, including the expert evidence and Mr. Schell's own testimony, clearly discharges the crown's onus of proving beyond a reasonable doubt that Mr. Schell's ability to operate a motor vehicle was impaired by alcohol at the time he crashed into the back of the parked pickup truck, causing significant front end damage to his vehicle. The pickup truck was parked in a usual spot on a residential street in Mr. Schell's neighbourhood. In fact, it was the street where he lived. Mr. Schell's ability to perceive his surroundings, his judgment of speed and distance, and his ability to assess risk and to make appropriate decisions while driving were clearly impaired by his consumption of alcohol.

[156] On his own evidence, Mr. Schell's ability to divide his attention as required for the various tasks associated with operating a motor vehicle was impaired by alcohol:

I stopped at a stop sign and I turned onto 2nd Street A, which is my street and there was, I remember glancing, there was a pickup truck on the side of the road as I got to the stop sign and at the same time I had my phone and I rounded the corner. … and I was looking down at my cell phone and I thought I'd, like I had driven out to the left because you have to go into the basically the opposite lane on the roadway partially to get around any vehicles parked on the street. And I had driven out, I thought I had driven out far enough and I lowered the phone down and as I lowered it down I was at the very extreme corner of the black pickup truck and I struck it. (Transcript, pages 110-111)

[157] In summary, Mr. Schell underestimated the risk associated with using his cell phone while driving and overestimated his ability to divide his attention as required for the tasks of driving. In striking the parked vehicle, he demonstrated that his ability to judge speed and distance was impaired by his consumption of alcohol. As established by the events immediately following the collision, Mr. Schell displayed impulsive, disinhibited and risk taking behaviour indicative of impairment by alcohol.

[158] The crown has discharged its onus of proving beyond a reasonable doubt that Mr. Schell's ability to operate his motor vehicle was impaired by alcohol at the time of the collision.

Verdict

[159] Accordingly, Mr. Schell, I find you guilty of the May 3, 2014 offences of impaired operation of a motor vehicle and operating a motor vehicle with more than 80 mg of alcohol in 100 ml of your blood, contrary to ss. 253(1)(a) and (b) of the Criminal Code.

Released: May 31, 2016

Signed: "Justice K.L. McKerlie"