Court File and Parties

Ontario Court of Justice

Date: November 3, 2016

Court File No.: London 15-11212; 15-598

Between:

Her Majesty the Queen

— and —

Scott Neil Bunting

Before: Justice A. Thomas McKay

Heard on: July 8, 2016 and September 13, 2016

Reasons for Judgment released on: November 3, 2016

Counsel:

• Peter Rollings, counsel for the Crown
• James Dean, counsel for the defendant Scott Neil Bunting

MCKAY J.:

INTRODUCTION

[1] Mr. Bunting was charged with three offences arising from a motor vehicle accident which occurred September 8, 2015. It is alleged that at the time of the accident, Mr. Bunting's ability to operate the motor vehicle was impaired by alcohol. He is charged with offences under section 253(1)(a) and 253(1)(b) of the Criminal Code. On a separate information, he is charged with the offence of having a blood alcohol concentration above zero while being licensed as a novice driver contrary to section 44.1(3) of the Highway Traffic Act. Counsel agreed that the evidence from the criminal trial could be applied to the trial of the Highway Traffic Act charge.

[2] The issue at the trial is narrow. There is no dispute that when the police came into contact with Mr. Bunting, he was heavily intoxicated. Indeed, the video recording of the book in process at the police station shows Mr. Bunting to be highly intoxicated and behaving in a manner which was highly obnoxious. He ultimately provided two breath samples which revealed blood-alcohol content of 290 milligrams per 100 millilitres of blood in the first sample, and a reading of 292 milligrams in the second sample. The issue is how and when Mr. Bunting drank the alcohol which caused his impairment. The defence position is as follows. Mr. Bunting had not consumed alcohol prior to the accident. However, following the accident, Mr. Bunting went back inside his home and consumed a very large amount of alcohol in a very short time. The suggestion is that the Crown has not proven that Mr. Bunting was impaired at the time he was operating the motor vehicle.

EVIDENCE

Connor Mack

[3] Mr. Mack is a neighbour of Mr. Bunting. He was at home on September 8, 2015. He heard a noise which drew his attention outside. He was looking out of his window when he saw Mr. Bunting's car leave the Bunting driveway and travel a short distance down the street before hitting the curb. The car was travelling pretty fast; his estimate was 40-50 kilometres per hour. After striking the curb, the car sped up considerably and travelled approximately 30 to 40 feet before leaving the roadway, entering a yard and struck a large tree. He was not certain what time that occurred, but it was during the daylight hours.

[4] After making those observations, he went outside and was approximately 50 feet away from Mr. Bunting. He saw Mr. Bunting exit the vehicle and begin yelling about his life being over. He described Mr. Bunting as distressed. Mr. Bunting had been driving the vehicle, and was alone in the vehicle. Mr. Bunting's father then came out of the residence and said something about needing to telephone the police. The conversation was quite loud and Mr. Bunting's father sounded angry. Mr. Bunting's father got close to Mr. Bunting and then pulled Mr. Bunting back into the house. He did not notice Mr. Bunting having any difficulty walking. He saw something red on Mr. Bunting's hand and at one point before entering his house, Mr. Bunting waved at him, saying that everything was okay. Mr. Mack went back inside his house. The police arrived sometime after the collision, but Mr. Mack was unable to provide a good time estimate of the time of police arrival.

[5] In cross-examination, he confirmed that he did not know Mr. Bunting well and that he had only seen him on one or two occasions prior to that date. He testified that, prior to striking the curb, the car had been in a slide. When it hit the curb, it bounced up, got traction and sped up prior to striking the tree.

Matthew Mezenberg

[6] Constable Mezenberg was dispatched to this incident by the police communication centre at 4:40 p.m. The dispatch notes indicated that the call was regarding impaired driving and also indicated the following: "son ran into a tree, Scott Bunting, has been drinking". The call notes indicated that the call had been received at 4:38 p.m. He arrived at the scene approximately five minutes later, along with Constable Prince. He saw a grey Cadillac sedan facing eastbound with significant damage to the front end. The car was not running and had come to rest up against a tree. He spoke with John Bunting, who indicated that his son had been in the vehicle, was drunk and hit a tree, and was now inside the house.

[7] As a result of that conversation, he attended at the front door of the residence with Constable Prince and John Bunting. The door to the residence was locked, and John Bunting did not have the key. John Bunting knocked on the door for a period of time and Scott Bunting opened the door approximately 30 seconds later. Scott Bunting had dried blood around his nose, which was still bleeding somewhat.

[8] During Mr. Bunting's interactions with the police, he made a number of utterances. The defence did not object to the admissibility of any statements which Mr. Bunting made prior to being booked into London Police Service headquarters. However, the defence did raise the issue of voluntariness of the utterances from that point onward. After a voir dire, the Court ruled that the utterances were admissible.

[9] After Mr. Bunting opened the door to the residence, Constable Mezenberg asked Mr. Bunting if he required emergency medical services. Mr. Bunting indicated that he did not. Mr. Bunting's nose was bleeding, his eyes were bloodshot and glassy, he was unsteady on his feet, with slurred speech and a strong odour of alcohol beverage on his breath. As a result of all of the information that the officers had at that point, including information from the police dispatch and Mr. Bunting's father, they placed Mr. Bunting under arrest at 4:54 p.m.

[10] Mr. Bunting was taken to the rear of a marked police vehicle after being searched as an incident to arrest. He was read his right to counsel, the caution and breath demand by Constable Prince. Constable Mezenberg began taking notes and speaking to witnesses in the area. There were neighbours standing outside of their homes. Constable Morrissey arrived and it was decided that Constable Morrissey would take care of the motor vehicle accident report and canvas the other witnesses.

[11] Constable Mezenberg examined the Cadillac. He described it as being in mint condition other than the front end damage. He described the front end of the vehicle being "demolished". He estimated the damage at $15,000. The driver's airbag had deployed and there was a blood like substance visible inside the car. The keys were not in the car. Constable Mezenberg identified Mr. Bunting by a photo driver's license which confirmed that he had a valid G2 class Ontario driver's license. That class of driver's license is issued with a requirement that the holder of the license have a zero blood-alcohol content while operating the vehicle. For that reason, Mr. Bunting was also charged with the Highway Traffic Act charge.

[12] Mr. Bunting remained in the rear of the police vehicle from shortly after 5 p.m. until 5:11 p.m., while officers were canvassing witnesses. At 5:04 p.m., while Constable Mezenberg was making some notes, Mr. Bunting said: "this was the worst mistake that I have ever made in my life … you are staring at the worst mistake ….". At 5:11 p.m., he left with Mr. Bunting and transported him directly to police headquarters. The video recording of the book in process was replayed. Constable Mezenberg indicated that Mr. Bunting's symptoms related to alcohol consumption were the same at the time of the video as they were at the time of the arrest. Constable Prince relayed the grounds for the arrest to the breathalyzer technician, and Constable Mezenberg then took care of administrative tasks related to the laying of charges.

[13] In cross-examination, he confirmed that it took approximately 10 minutes to drive from the scene of the arrest to police headquarters. He confirmed that at the scene, he briefly canvassed witnesses in the area in order to obtain names while Constable Prince was giving Mr. Bunting the right to counsel, caution and breath demand. He also went to Mr. Bunting's vehicle in order to obtain the registration and insurance documents to assist with a motor vehicle accident report. He did not specifically recall his other activities in the seven minute interval between 5:04 p.m. and 5:11 p.m., but he believed that he also was speaking with Constable Morrissey for a period of time.

Matthew Prince

[14] Constable Prince attended the location of the accident along with Constable Mezenberg. He arrived at 4:51 p.m. There were a number of individuals outside. A blue Cadillac had collided with a tree, causing significant front end damage. While he was examining the car he was approached by John Bunting. Mr. Bunting was quite upset and indicated that "it was my son, he was drunk, he just ran inside". He noted a blood like substance in the vehicle including the centre area of the driver's airbag, which had deployed. John Bunting and other individuals in the vicinity pointed at the door of the Bunting residence. He asked John Bunting if he could enter the residence, and John Bunting gave him permission.

[15] The front door to the residence was locked. John Bunting pleaded with his son to open the door. The door was opened quickly, within seconds. Mr. Bunting opened the door and they all stepped inside. Mr. Bunting had blood on his nose. He asked Mr. Bunting if he needed medical attention. Mr. Bunting indicated that he did not, and that he had broken his nose lots of times. He detected a strong odour of alcohol from Bunting's breath, red glossy eyes and Mr. Bunting was very unsteady on his feet, bracing himself by placing his hand on the wall several times. Mr. Bunting was swaying, and at times was incomprehensible, not making any sense. At times Mr. Bunting was loud, and at other times he was mumbling, with slurred speech. He arrested Mr. Bunting at 4:54 p.m.

[16] After placing Mr. Bunting in the rear of the police car, the officers had a brief conversation regarding who would take what role in the investigation. He provided Mr. Bunting with the right to counsel, and made the breath demand at 5:05 p.m. Mr. Bunting's response was to utter "yes, tell my mom and dad". Constable Mezenberg briefly took care of other duties, including assigning duties at the scene. They left the scene at 5:11 p.m. and travelled to police headquarters. At 5:24 p.m., Mr. Bunting said "look at my car, at what I did, I want to talk to my mom". They arrived at police headquarters at 5:25 p.m. Mr. Bunting was subsequently formally admitted to the cell area. Mr. Bunting was taken to the breathalyzer technician, Constable Boody, at 5:50 p.m. He provided Constable Boody with the grounds for arrest which he had outlined earlier in his evidence. He remained by the breathalyzer room for security.

[17] In cross-examination, he confirmed that both the blood in the vehicle and the blood on Mr. Bunting's face appeared fresh. He maintained that at times Mr. Bunting responded clearly, and at other times mumbled. When he provided Mr. Bunting with the right to counsel, Mr. Bunting indicated that he understood. When he read the caution to Mr. Bunting, Mr. Bunting responded by saying "I am not going to say anything, just shut me the fuck up." While Constable Mezenberg was assigning tasks at the scene, he made observations of the vehicle, ran the license plates, reviewed the call notes, conducted some searches on his computer, and briefly made note book entries.

Michael Boody

[18] Constable Boody is a qualified breath technician with the London Police Service. At 4:59 p.m. he was contacted by radio and told to attend police headquarters to prepare the approved instrument. At 5:25 p.m., he conducted the checks on the instrument. At 5:34 p.m., he observed Mr. Bunting being taken before the cell Sargeant for the book in process. He made observations of Mr. Bunting during that process, and then at 5:50 p.m. took Mr. Bunting to the breathalyzer room. He had received the grounds for arrest from Constable Prince.

[19] The approved instrument was in proper working order. Between 6:57 p.m. and 7:20 p.m., he took two suitable samples of Mr. Bunting's breath. The tests resulted in readings of 290 and 292 milligrams of alcohol per 100 millilitres of blood. Between the taking of the two samples, Mr. Bunting indicated to him that he made a mistake in driving his vehicle, but declined to be specific about what he drank, or when or where he drank it.

[20] In cross-examination, he confirmed that Mr. Bunting was taken from the booking area at 5:40 p.m., and not formally turned over to him until 5:50 p.m. He indicated that typically there is some time involved in administrative matters prior to the testing such as checking the video recording equipment in the breathalyzer room. He confirmed from his observations that Mr. Bunting was quite visibly impaired by alcohol.

John Bunting

[21] John Bunting is the father of the accused. He was subpoenaed by the Crown to attend court on the first day of trial. He declined to do so. After the issuance of an arrest warrant, his presence at court as a witness was secured.

[22] Mr. Bunting is 60 years of age. The marriage between he and Mr. Bunting's mother had broken down, but at the time of the incident, he was staying with his ex-wife and son at their residence. On the relevant day, his son arrived home either late morning or early afternoon. His son was home for 30 to 40 minutes. They spoke and his son was very upset, crying at times, related to something that involved his son's girlfriend. He also described his son as angry and dejected. He assumed that his son had been drinking but it was difficult to be certain because his son was so upset. His son had been gone for several days.

[23] A successful application under section 9(2) of the Canada Evidence Act helped John Bunting refresh his memory somewhat. He agreed that possibly, he could have told Constable Prince that his son was drunk. He believed that he did tell the 911 operator that his son was drunk, although he maintained that there was not much difference in the behaviour of someone who is drunk and someone who is emotionally upset. He recalled that his son had left the house and gone to his vehicle, after asking him to go drinking with him, indicating "my life is over". He advised his son that in his condition, his son should not be going anywhere. He qualified that by saying that he meant that his son should not be going anywhere when he was that upset.

[24] His son pulled the car out of the driveway. He heard the car accelerate, and then the sound of a crash. He ran to where the vehicle was approximately 20 metres away. His son was bleeding and yelling for him. When the car had accelerated, it sounded like someone had stepped hard on the gas. It was the sound of massive acceleration. His son was out of the car by the time he got to it and he observed a cut to his son's head. He shut the engine off, took his son inside the house right away, and telephoned 911 within 10 to 15 minutes after the crash occurred. John Bunting indicated that there is no alcohol kept in the residence. The police arrived within 10 minutes of him telephoning 911. His son was in the backyard for approximately a minute while he was telephoning 911. After he made the call to 911, his son was out of his sight for approximately 10 minutes. He was pretty sure that his son was in the backyard. He did not see his son consume any alcohol after the accident.

[25] He informed his son that the ambulance and the police were coming. At that point, his son seemed calmer, almost resigned. His son said "my life is over". The two of them went back outside and looked at the car. The police arrived and his son went back inside the house and locked the door. After approximately 30 seconds of him knocking on the door, his son opened the door and was then completely calm.

[26] In cross-examination he indicated that he never saw his son drink anything nor did he smell alcohol on his son. He described his sons behaviour is fairly irrational. He was afraid that his son was trying to harm himself. He confirmed again in cross-examination that there is not any alcohol kept in the house. His son has a bedroom downstairs. He indicated that he was unaware of whether his son kept any alcohol in that bedroom. He confirmed that his other son Kevin was married on August 22nd of that year, and that the accused was involved in the wedding.

Scott Bunting

[27] Mr. Bunting is 31 years of age. He testified that at the time of the incident, he was living partially at his parent's house. He testified that he was at his parent's residence the morning of the incident, leaving the residence sometime between 10 a.m. and 10:30 a.m. to attend meetings. He is self-employed. He finished his meetings around 2 p.m. He had been having issues with his girlfriend during that time frame. He attended at her residence to surprise her. He observed another man's car in the driveway, and was familiar with the car because the man had come between he and his girlfriend before. He left there and went to his parent's home. He was fine on his way to his parent's home. His observation at his girlfriend's residence was the culmination of what had been a toxic relationship.

[28] He arrived at home and spoke with his father about the issue between him and his girlfriend. His father did not understand how much it meant to him, and got angry and started yelling. That went on for approximately 10 to 15 minutes and things unraveled quickly as he absorbed the events of the day. He felt a combination of anger and depression. He had not had anything to drink at that point. He needed someone to go with him, but his father would not accompany him, so he left on his own. His evidence was that he just needed to get away from his father and the argument between him. His father told him not to leave.

[29] He backed his car out of his driveway, and hit the gas. He does not really remember the collision, just the impact. He recalled seeing lots of blood. He got out of the vehicle and told a neighbour that he was okay. He went inside the house with his father. His recollection of the events in the house was blurry. He recalls washing blood off, and his father telling him police were on their way. After that, he went downstairs to his bedroom area. He saw liquor which had been left over from his brother's wedding. He took a full 26 ounce bottle of vodka and drank it within 45 seconds. He did so because he was in a lot of pain physically and emotionally.

[30] At one point, he locked the exterior door to the residence because he knew he was being taken away because of crashing the car at high speed. He opened the door for the police at his father's request. He recalls being "super calm" when speaking to the police. His main recollection is being placed in the rear of the police vehicle.

[31] In cross-examination, he agreed that he had broken up with his girlfriend a number of times during the previous year. He agreed that it was a toxic relationship, but that he did not want out of the relationship. At the time of this occurrence, he was in a downward spiral of both his career and his relationship. He generally avoided his father because they have a negative relationship. He did speak to his father that day when he arrived home. The discussion evolved into arguing and shouting, but he does not recall how that started. He maintained that he wanted to get away from the argument so he got in his car to leave. He agreed that moments before, he had asked his father to go drinking with him. He had almost no recollection of the details of how the accident occurred. He maintained that the time of the accident, he was out of his mind in a rage filled state.

[32] He maintained that after his father took him to the house, he indicated that he was going downstairs to clean up. He testified that he needed something to put him out of his misery and to change his emotional state. Therefore, he drank the alcohol. He knew that the police were on their way, but it never crossed his mind when he decided to drink the alcohol. He often uses alcohol to deal with his emotions. He thought that he remained in the basement the entire time until the police arrived. He heard the police knock on the door. His emotional state sometimes impacts his ability to recall. He has no recollection of the events that occurred at the police station.

Kerrie Wall

[33] Kerrie Wall is an expert in the area of toxicology, employed as a forensic scientist with the Centre for Forensic Sciences. Her report was filed to compliment her viva voce evidence. Given the information which she was provided, she calculated that Mr. Bunting's blood-alcohol content at 4:38 p.m., the assumed time of the accident, would have been in a range of 290-335 milligrams of alcohol in 100 millilitres of blood. A difference in the time of driving by up to one half hour would not materially impact her calculations. Her calculation was based on a number of assumptions. The assumption most germane to this case is the assumption that there was no consumption of alcohol after the accident and before the breath tests.

[34] Ms. Wall testified that the absorption of alcohol from the stomach into the bloodstream is a rapid process, and that most alcohol consumed absorbed within 15 minutes. The blood-alcohol content range which she calculated for the time of driving would result in impairment of the ability to operate a motor vehicle. In her opinion, an individual's ability to operate a motor vehicle will be impaired with a blood-alcohol content of 50 milligrams per 100 millilitres of blood. That is all that is required to impact brain function to the point where it impairs the ability to operate a motor vehicle. She pointed out that impairment differs from intoxication. She also explained the meaning of the no sample reading which occurred on the approved instrument at one point during the testing.

[35] Ms. Wall testified that the best predictor of impairment of the ability to operate a motor vehicle is blood-alcohol content, not physical symptoms of intoxication. Physical symptoms of intoxication can be misleading because of the tolerance levels of individuals she characterized as "experienced" drinkers. She explained that the concept of plateau depends upon the drinking scenario. She noted that a blood-alcohol content of 360 millilitres can result in death. From her observations of Mr. Bunting on video and the other information provided, Mr. Bunting is not new to drinking.

[36] Ms. Wall was asked about the scenario outlined in Mr. Bunting's evidence. In her opinion, if Mr. Bunting, who weighed 180 pounds at the time of the incident, drank 7/8 of a 26 ounce bottle of vodka after the accident but before the arrival of the police, that would have resulted in a blood-alcohol content within an approximate range of 295-315 milligrams of alcohol at the time of the first suitable breath sample. That assumes a zero blood-alcohol content prior to consuming the vodka. With that drinking scenario, she would expect the person consuming that alcohol to vomit. Most people would become unconscious, perhaps incontinent, and would need medical attention. She would expect those types of significant symptoms even of an experienced drinker in that scenario.

POSITIONS OF THE PARTIES

The Crown

[37] The Crown position is that the Crown has proven all three offences beyond a reasonable doubt. Mr. Bunting drove his car into a tree a short distance from his driveway in broad daylight. Later, he provided breath samples which showed a blood-alcohol content of 290 milligrams and 292 milligrams of alcohol in 100 millilitres of blood.

[38] John Bunting's utterances to the police at the time that his son was drunk cannot be relied upon to prove impairment because John Bunting did not adopt that position at trial. However, the evidence of John Bunting at trial that his son may have simply been emotionally upset is not believable. John Bunting is clearly reluctant to testify for the Crown, and is attempting to assist his son's defence.

[39] The evidence of the accused is remarkably evasive. He has good recollection of details of many things, including his evidence about when and how he consumed alcohol, but absolutely no recollection of how the accident occurred. His evidence that, knowing the police were about to arrive to investigate an accident, he went and consumed 26 ounces of vodka in 45 seconds is illogical and unbelievable. His evidence that he did so is inconsistent with the evidence of Ms. Wall, in terms of the physical symptoms she would expect to observe the following that drinking scenario.

The Defence

[40] The defence maintains that Mr. Bunting's evidence revealed him to be credible and forthright. The defence points out that the civilian witness Mr. Mack did not observe any difficulty on the part of Mr. Bunting when walking back to his residence. The evidence of John Bunting is that Mr. Bunting was upset and irrational that day. Mr. Bunting agrees that his behaviour that day made no sense. The fact that the Crown cannot show impairment indicia immediately following the accident similar to the indicia observed in the video means there was no evidence of alcohol consumption prior to the accident. Mr. Bunting was emotionally upset, and nothing more. Even without the acceptance of Mr. Bunting's evidence of drinking after the accident, there is no evidence of impairment prior to the accident.

APPLICABLE LEGAL PRINCIPLES

[41] The Crown must prove all elements of any criminal offence beyond a reasonable doubt in order to obtain a conviction.

Impairment

[42] It is an offence to operate a motor vehicle while one's ability to operate the vehicle is impaired by alcohol or a drug. Impairment of driving ability is a matter of fact that must be proved beyond a reasonable doubt. In order to constitute an offence, impairment does not have to reach any particular level. Evidence which establishes any degree of impairment of the ability to operate a motor vehicle is proof of an offence.

[43] No single test or observation of impairment, standing alone, is conclusive. Impairment of one's ability to drive is generally understood as meaning the alteration of one's judgment and a decrease in one's physical abilities. Proof can take many forms. Any circumstance that relates to driving ability may be considered, including: balance, comprehension, coordination, fine motor skills, judgment, physical movement, reaction times, vision and alcohol or drug consumption. Evidence of the pattern of driving is relevant. A judge is not to consider each item of evidence in isolation. The totality of the evidence must be examined to determine whether the Crown has proven the impairment.

[44] Where it is necessary to prove impairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof is met. To that extent, the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the standard of proof that the ability to drive is actually impaired. Where the evidence indicates that an accused's ability to walk, talk and perform basic tests of manual dexterity was impaired by alcohol, the logical inference may be drawn that the accused's ability to drive was also impaired. The Crown must show that considering all of the evidence heard, there can be no other reasonable conclusion than that the driver's ability to drive was impaired by alcohol or a drug.

[45] Non-expert witnesses may give opinion evidence as to impairment. Expert evidence must be taken together with all of the other evidence in considering whether the charge of impaired driving has been made out.

[46] Police are empowered to investigate drivers for drinking and driving offences both under the common law and provincial legislation. There are limits on the right to counsel at the roadside in drinking and driving investigation. Those limits are made reasonable by the fact that evidence which the police obtain under compulsion at the roadside by way of statements and testing is admissible only to show reasonable grounds, and may not be used to incriminate the accused at trial. This limitation applies only to compelled evidence, and not to police observations of various signs of impairment.

[47] The results of breath, urine or blood tests may corroborate evidence attributing observed indicia of impairment to the consumption of alcohol or drugs. However, these results do not permit an inference as to the amount of alcohol consumed and its effect on the driver, unless an expert toxicologist establishes a correlation between the result and a level of impairment.

[48] An unexplained accident can be an indication of impairment of the ability to drive. However, it is simply one circumstance which must be weighed along with all of the other evidence at trial to determine whether the Crown has proven its case.

B.A.C. Over .08: The Presumptions

[49] It is an offence to operate a motor vehicle with a blood-alcohol content in excess of 80 milligrams of alcohol in 100 millilitres of blood. Section 258 of the Criminal Code contains a series of separate presumptions which constitute evidentiary shortcuts available to the Crown in proving this offence.

[50] The first presumption is known as the presumptions of identity. Section 258(1)(c) of the Criminal Code presumes that the blood alcohol content of an accused at the time when the offence was alleged to have been committed is the same as the level at the time of the breath test. Section 258(1)(d.1) provides that if the blood alcohol level exceeds 80 milligrams at the time of the test, there is a presumption that it also exceeded 80 milligrams at the time when the offence was alleged to have been committed.

[51] The presumption of accuracy is contained in section 258(1)(g) of the Criminal Code. It provides that the technician's reading provides an accurate determination of the blood alcohol level at the time of the test. The section makes the certificate of analysis admissible as evidence of the facts stated in it without the need to call the qualified breathalyzer technician. The certificate of the qualified breathalyzer technician becomes admissible as proof that the samples were taken at the specified times and place; that the samples were analysed by an approved instrument; that the technician had ascertained the instrument to be in proper working order; and what the results of the two breath tests were.

[52] Both the presumption of identity and the presumption of accuracy can be rebutted by evidence to the contrary.

[53] One of the preconditions required for the Crown to rely upon the presumption of identity is the condition that the first breath sample shall have been taken not later than two hours after the offence was alleged to have been committed. Therefore, the Crown cannot rely upon the presumption as an evidentiary shortcut in this case. However, the Crown may prove those facts in another manner. The Crown may call the breath technician to establish the results of the tests and then call expert toxicology evidence to extrapolate the test results back to the time of driving. The Crown did just that in this case.

[54] Where the lack of bolus drinking is part of the foundation of the expert's opinion, the Crown must prove the lack of bolus drinking by the accused. That places the Crown in the unenviable position of having to prove a negative. A trier of fact may resort to a common sense inference in such circumstances. Appellate courts have described it as an inference that people do not normally ingest large amounts of alcohol just prior to or while driving. (see Grosse, [1996] O.J.No. 1840 (C.A.), Hall, 2007 ONCA 8, [2007] O.J. 49 (C.A.), and R. v. Bulman, 2007 ONCA 169). Some legal authors note that this has the result of placing 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 that at least puts the possibility that the accused had engaged in bolus drinking in play.

ANALYSIS

[55] The evidence is overwhelming that, at the time police came into contact with him at his residence, Mr. Bunting was heavily intoxicated. At that time, his ability to operate a motor vehicle was clearly grossly impaired. The issue remains whether the Crown has proven either or both impairment of the ability to operate a motor vehicle or a blood-alcohol content over 80 milligrams at the time of driving.

[56] Mr. Bunting left his residence in broad daylight, in good road conditions, and within seconds struck the curb of the roadway, travelled onto a lawn and had a frontal collision with a large tree. Impairment of the ability to operate a motor vehicle is a possible explanation. Mr. Bunting would have the Court believe that he lost control of his vehicle because he was in such a state of emotional upset. He also testified that he has no real recollection of the events that led up to the accident, but that his emotional state sometimes impacts his ability to recall events.

[57] From a significant distance, Mr. Mack briefly observed John Bunting assisting Mr. Bunting to the residence after the accident. Mr. Mack did not notice obvious signs of intoxication related to the way Mr. Bunting walked. The defence submits that supports the theory of no alcohol consumption prior to the accident. Given the limitations related to Mr. Mack's observations, I place no weight on his evidence that he did not observe Mr. Bunting having difficulty walking.

[58] John Bunting advised a number of people that day that his son was drunk while operating a motor vehicle. John Bunting did not adopt that evidence at trial so it is simply hearsay and not evidence of impairment. I note that John Bunting was a reluctant Crown witness who only came to court after the issuance of an arrest warrant. He was clearly attempting to assist his son while giving evidence at trial. I am sceptical of much of his evidence. However, his evidence is the only evidence which establishes the time of the accident. He testified that he telephoned 911 at approximately 10 to 15 minutes after the crash occurred. He testified that the police arrived approximately 10 minutes after he telephoned 911. Constable Prince testified that they arrived on scene at 4:51 p.m. I accept that evidence. Accordingly, the accident occurred sometime between 4:25 p.m. and 4:31 p.m.

[59] John Bunting also testified that there is no alcohol kept in the residence. He testified that he was "pretty sure" that his son was in the backyard while waiting for police to arrive on scene. He did not see his son consume any alcohol between the accident and the arrival of the police.

[60] Scott Bunting's evidence is contrived, inconsistent and illogical. He testified that he has no recollection of the details leading to the accident. He has very little recollection of the details of his conversation with his father prior to leaving in the car. He testified that he wanted to leave the residence to get away from his argument with his father. Notwithstanding that, he agreed that he invited his father to go drinking with him. He testified at one point that his lack of recollection of details came as a result of him being out of his mind in a rage filled state. He testified that his emotional state sometimes impacts his ability to recall. Notwithstanding that, he apparently has perfect recall of going downstairs and drinking a bottle of vodka within 45 seconds in order to alleviate his physical and emotional pain. He claims to have done so notwithstanding the fact that he knew the police were on their way to investigate the motor vehicle accident.

[61] When the scenario upon which Scott Bunting's evidence was put to Ms. Wall, she testified that she would expect even an "experienced drinker" in that scenario to vomit, in most cases become unconscious, perhaps incontinent and in need of medical attention. Mr. Bunting did not suffer from any of those symptoms.

[62] I do not believe Mr. Bunting. I reject his evidence regarding bolus drinking in its entirety. I reject his evidence that his emotional state was the cause of him driving his car into a tree.

[63] The issue remains whether the Crown's proven the elements of the offences beyond a reasonable doubt. Having rejected Mr. Bunting's evidence regarding bolus drinking in its entirety, there is no evidence of bolus drinking before the Court. John Bunting did not see his son drinking.

[64] With respect to the impaired driving charge, Mr. Bunting left his driveway and within seconds drove his car off of the roadway into a tree. Minutes later, the police arrived and found him obviously heavily intoxicated with his ability to operate a motor vehicle obviously impaired. The only logical inference is that when he drove his car off the roadway into a tree minutes earlier, his ability to operate his motor vehicle was impaired by alcohol. The Crown has proven that charge.

[65] With respect to the charge of driving with more than the allowable limit of alcohol in his bloodstream, I accept the evidence with respect to his blood alcohol content at the time of the breath tests. I accept the evidence of Ms. Wall extrapolating the blood-alcohol content readings back to the time of driving. I find that Mr. Bunting's blood-alcohol content at the time of driving was in a range between 290 to 335 milligrams of alcohol in 100 millilitres of blood. The Crown has proven that charge.

[66] The evidence from the criminal trial shall be applied to the Highway Traffic Act trial. The class of driver's license held by Mr. Bunting at the time he was operating the motor vehicle required him to have a zero blood-alcohol content when operating a motor vehicle. The Crown has proven the Highway Traffic Act charge.

CONCLUSIONS

[67] There will be findings of guilt with respect to the Highway Traffic Act charge, and the charge under section 253(1)(b) of the Criminal Code. The charge under section 253(1)(a) of the Criminal Code is stayed.

Released: November 3, 2016

Signed: "Justice A. Thomas McKay"