Ontario Court of Justice

(Toronto Region)

Between:

Her Majesty the Queen

and

Melanie Gallant

Reasons for Judgment

Justice H. Borenstein

Heard: August 23, 2016

Judgment: September 2, 2016

Appearance:

K. Walker – Counsel for the Crown

A. Cormie-Bowins – Counsel for the Accused

Decision

[1] Melanie Gallant is charged with driving while her ability to do so was impaired by alcohol and while "over 80". She was involved in a single car accident in the early afternoon. She was arrested after failing an ASD. At the station, she provided two breath samples registering readings of 357 and 350 milligrams of alcohol per 100 millilitres of blood.

[2] The case against the accused is overwhelming subject to only one issue; namely, is there a reasonable doubt that Ms. Gallant consumed the majority of the alcohol consumed either shortly before she drove or after she drove.

[3] I heard from four crown witnesses – the two officers on scene, the qualified Intoxilizer technician and a forensic toxicologist. Videos from the scene and at the police station were also introduced. No defence was called.

[4] By the end of the trial the following is clear:

[5] Ms. Gallant was driving her car some time before three in the afternoon near Bloor West and Dundas Street West in Toronto. She was involved in a single motor vehicle accident. She told the police she swerved to avoid a cat. The precise time of driving is unknown.

[6] Although it is hearsay, I was told that a civilian flagged down a police officer to advise the officer of the accident. That officer apparently called in the accident to the division. Neither the civilian nor that first officer testified. However, at 3:22 pm, PC McCue received a dispatch to attend the accident scene. He arrived at 3:34 pm. He saw Ms. Gallant's car. No one was inside. One tire was on the curb. It had struck a pole. There was smoke coming from the car. Someone told McCue that the driver was around the corner. McCue went around the corner and saw Ms. Gallant sitting in the passenger seat of a car.

[7] P.C. McCue spoke briefly with Ms. Gallant. He asked her if she was injured. She replied that she needed to get her car fixed. Although McCue dealt with the accused only briefly, he did not note any signs of impairment. She had no difficulty exiting the car or standing. He did not smell any alcohol from her breath but he was a foot away from her and it was outdoors. Another officer, P.C. Kuznetsov arrived on scene at 3:34 p.m. and dealt directly with the accused. There was no smoke coming from the accused's car but anti-freeze was leaking from it. He went to the accused. Her eyes were bloodshot and glossy and her face was flushed. She was sluggish when she exited the car and had an unfocussed look. He smelled an odour of alcohol on her breath. He thought some of what he observed might be attributable to the accident. He did not believe he had reasonable grounds to believe Ms. Gallant was impaired. He did have a reasonable suspicion that she consumed alcohol. At 3:41 p.m., he read her an ASD demand which she failed at 3:42 p.m. P.C. Kuznetsov arrested the accused for driving while "over 80". An officer searched her car and retrieved her purse. Ms. Gallant objected to her purse being searched but an officer opened the purse and found an open 26 ounce bottle of vodka. Between one quarter and just under a half of the vodka was missing.

[8] Following the rights, caution and approved instrument demand, Ms. Gallant was taken to the nearest police station with a qualified breath technician. P.C. Saib was the technician. After speaking with counsel, Ms. Gallant provided two suitable breath samples into the Intoxilizer 8000C. The first sample, taken at 4:46 pm, registered a reading of 357 mg of alcohol in 100 millilitres of blood. The second sample, taken at 5:11 pm, registered a reading of 350 milligrams of alcohol in 100 millilitres of blood. Once the readings became known, and in view of the other indicia as well, the officers believed Ms. Gallant's ability to operate a motor vehicle was impaired by alcohol. She was then charged with impaired operation as well.

[9] The Crown, Ms. Walker, fairly concedes that it cannot prove beyond a reasonable doubt that Ms. Gallant drove within two hours of the first breath test at 4:46 pm. Accordingly, the Crown called a toxicologist from C.F.S., Ms. Wall, to read the readings back to the time of driving, whenever that was.

[10] Ms. Wall testified that, assuming the time of driving occurred at 3:45 p.m., the accused's B.A.C. at that time would be in the range of 350 and 405 milligrams of alcohol per 100 millilitres of blood. If she drove earlier, her B.A.C. would be higher. People could die with a B.A.C. in that range and their ability to operate a motor vehicle would be impaired by alcohol even if they could mask the outward signs of intoxication. Ms. Wall's opinion concerning the B.A.C. at the time of driving was independent of the accused's age or gender but was dependent on four assumptions, two of which are relevant here. First, that the accused did not drink large amounts of alcohol shortly before driving (bolus drinking) and second, that she did not drink any alcohol after driving.

[11] Ms. Wall was asked how much alcohol a person would have to consume in the 15 minutes prior to driving or shortly after driving to not exceed 80 milligrams at the time of driving but to have still produced the readings obtained at the station. She testified that a 100 pound woman would have to have consumed 7.5 ounces of spirits, such as vodka, to not exceed 80 at the time of driving and produce the readings obtained. If the person drove earlier, or was heavier than 100 pounds, that person would have to have consumed more alcohol but the amount was not specified. To repeat, somewhere between 6.5 to just under 13 ounces of vodka was missing from the open bottle.

[12] That was the evidence called in this case.

Legal Analysis

[13] There is no question that Ms. Gallant was impaired and had a dangerously high B.A.C. by the time she was tested at the police station. The only issue that has any potential merit in this case is whether I have a reasonable doubt that Ms. Gallant consumed 7.5 ounces or more of vodka in the 15 minutes before she drove or after the accident and before the test. More accurately, has the Crown disproved that beyond a reasonable doubt. The law is clear; if there is an air of reality to this issue, the Crown must disprove it beyond a reasonable doubt. The case law reveals as well that an accused does not have to testify. The Court may resort to a common sense inference that most people do not consume large amounts of alcohol just prior to driving. However, if an accused can point to something in the evidence that raises the issue as a live, real issue, the Crown must disprove that possibility beyond a reasonable doubt.

[14] In the leading case of R. v. Paszczenko and Lima (2010) O.J.CA 615, the Court of Appeal held (paras 28-37):

In establishing that an accused has not engaged in bolus drinking, the Crown is in the unenviable position of having to prove a negative. But how does it meet that onus in circumstances where – as is likely in many cases – it has no statement or evidence from the accused as to his or her drinking pattern at the relevant time and no other witnesses or evidence to shed any light on that issue? That is the dilemma posed, principally, by the Lima appeal.

At one level, the answer is straightforward: the Crown need do very little. The toxicologist's report is premised – amongst other things – on there being no bolus drinking. In the absence of something on the record to suggest the contrary, on what basis could a trier of fact conclude there was bolus drinking? This Court has answered the question posed by concluding that 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: [references omitted]. 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.

In Grosse, at p. 792, the Court said:

The trial judge was also entitled to consider that it was inherently unlikely that the respondent, in the space of less than 30 minutes, before embarking on his trip home to Brampton would consume the equivalent of nine ounces of alcohol. This was not a matter of taking judicial notice of drinking patterns but merely applying common sense as to how ordinary people behave. [Emphasis added.]

And in Bulman and Hall, respectively, Justices Gillese and LaForme observed:

Bulman, para. 13:

The jury was aware that [the toxicologist's] expert testimony was dependent on an underlying assumption that had to be proven by the Crown – namely, that the appellant had not consumed a large quantity of alcohol shortly before driving ("bolus drinking"). Whether [the expert's] underlying assumption was proven was a question of fact for the jury to decide. In making this finding, the jurors were entitled to rely upon their common sense, and to draw inferences about how normal people behave. A reasonable inference is that normal people do not consume large quantities of alcohol shortly before, or while, driving.

Hall, para. 20:

There can be no doubt that the trial judge rejected his evidence on this issue entirely [i.e., the evidence of a defence witness to the effect that the accused had consumed half a glass of beer quickly just before leaving a restaurant]. 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.

I would frame the rationale for this approach as the imposition of a practical evidentiary burden on the accused, not to persuade or convince the trier of fact that there was bolus drinking involved, but to point to something in the evidence (either in the Crown's case, or in evidence led by the defence) that at least puts the possibility that the accused had engaged in bolus drinking in play. The imposition of a practical evidentiary burden to come forward with evidence is simply another way of explaining the invitation to draw a common sense inference which puts the accused in essentially the same spot if he or she cannot point to some evidence to overcome either hurdle.

And after referring to Grosse, the court continued:

The common law presumption advocated by the Crown and rejected by the Court in Grosse, is not the same as the practical evidentiary burden to come forward with some evidence that arises through the application of the common sense inference described above. In Grosse, the Court spoke of the accused having the burden of proof on the issue and of the potential creation of a presumption of law that would deem no bolus drinking to be proven in the absence of evidence to the contrary. This is the language of persuasion. Here, the effect of the evidentiary shift is not to require the accused to convince the trier of fact of anything, but simply to be able to point to some evidence on the basis of which it can be said the issue of bolus drinking is alive on the record.

And further:

For the reasons explained above, applying the common sense inference where there is no evidence of bolus drinking in circumstances where the Crown is required to prove the negative (i.e., no bolus drinking) is simply an example of the Schwartz notion of an evidential burden, in my view. It does not involve attaching an onus of proof to the accused or the creation of a presumption or deeming provision in the sense forbidden in Grosse. On that basis, it would be more straightforward, it seems to me, to refer to this evidentiary exercise as a shift in the practical evidentiary burden on the basis of which – absent something to put bolus drinking in play – an inference may (but not must) be drawn.

[15] In Lima, the Court of Appeal upheld the conviction given that the Trial Judge was not in doubt about the issue of bolus drinking. In upholding the trial judge, the Court of Appeal referred to the common sense inference that normal people do not ingest large amounts of alcohol shortly before driving. The Court noted that that inference was available to the trial judge, particularly in light of the following factors:

a) Mr. Lima was stopped while driving his vehicle in an unusual fashion;

b) He exhibited signs of driving while intoxicated at the time (smell of alcohol on his breath; red, bloodshot and glassy eyes; flushed face);

c) The trial judge found by inference from the arresting officer's evidence that there was no alcohol in Mr. Lima's car, and that he had no access to alcohol from the time of his arrest to the time of the breathalyzer tests;

d) There was no evidence that Mr. Lima had just come from an establishment serving alcoholic beverages; and

e) The trial judge found that there was no change in the indicia of alcohol consumption during the period between his arrest and the administration of the breathalyzer tests, thus rejecting the defence argument that increased signs of intoxication were evidence of bolus drinking.

The fact that Mr. Lima was exhibiting signs of intoxication while driving and immediately after exiting the vehicle, while not conclusive, provides some circumstantial evidence of the absence of bolus drinking, in my view. The effect of bolus drinking is to create a situation where the accused driver's BAC may have been below 80 milligrams of alcohol in 100 millilitres of blood at the time of the incident, yet still register "over 80" in a read-back calculation done later because it was still rising at the time of the incident. If the BAC were less than 80 at the time of the incident, one would not expect to see such indicia of intoxication. This is circumstantial evidence tending to support the view that there was no bolus drinking in the circumstances.

Given these facts, together with the application of the common sense inference, the trial judge was entitled to conclude, as she did, that the Crown had proved the facts underlying the toxicologist's "no bolus drinking" assumption. The SCAJ correctly upheld the finding.

[16] Returning to Ms. Gallant's case, the Crown fairly concedes that the issue of bolus drinking and/or drinking post driving is a live issue. The Crown submits that it is not reasonable to infer that Ms. Gallant drank 7.5 ounces or more at the relevant time. Respectfully, I disagree. I do note that, in light of the Crown's forceful submissions, I think it is unlikely that Gallant drank that amount but I am not satisfied beyond a reasonable doubt in light of the following factors:

1. One officer on scene noted no signs of impairment. The other noted some but did not believe she was impaired.

2. There was between 6.5 and just under 13 ounces of vodka missing from the bottle in her purse which was in the front seat.

3. Ms. Gallant did not want the police to find that vodka bottle.

4. It is a realistic possibility that she had some vodka either just after driving or before or both. There was an open bottle in her purse. She had the time and access.

5. An open bottle of vodka in her car is a potential indication of abnormal drinking.

[17] The accident has the potential to eliminate any doubt on this issue. It could be evidence of impairment at the time of driving. Ms. Gallant told the officers she swerved to avoid a cat and that could be an innocent reason for the accident. It might also be further evidence of impairment. Given my uncertainty and lack of evidence concerning the cause of the accident, the accident itself and in conjunction with the rest of the evidence does not eliminate my doubt regarding the issue in this case.

[18] The issue of bolus drinking or drinking after the accident is a live possibility. The amount of vodka missing from the bottle may be material. At the end of the day, there is a realistic possibility that Ms. Gallant drank a significant amount of alcohol after the accident or just before. The open vodka in her purse raises that issue. And I do not know how much she drank or that she drank less than 7 ½ ounces. While I think she likely did not drink that much, I am not convinced beyond a reasonable doubt that she did not. Accordingly, while very suspicious, I am not satisfied beyond a reasonable doubt. She will be found not guilty.

Justice Howard Borenstein

September 2, 2016