Court Information

Ontario Court of Justice

Date: 2017-05-03

Court File No.: Sundridge 16-160302

Parties

Between:

Her Majesty the Queen

— AND —

Collin James

Before the Court

Justice: A. H. Perron

Heard: April 5, 2017

Reasons for Judgment Released: May 3, 2017

Counsel

For the Crown: W. Beatty

For the Defendant Collin James: P. Ward

Judgment

Perron, J.:

Facts and Evidence

[1] Collin James is charged with one count of operation of a motor vehicle with over 80 mg of alcohol in one hundred millilitres of blood in relation to an incident that happened in Magnetawan, Ontario on April 25, 2016. The trial in this matter was heard on April 5, 2017.

[2] The evidence for the Crown was presented by three witnesses and is in fact not highly contested.

[3] We first heard from Gerald Jenkins who lives on Highway 520 in Magnetawan, Ontario. He was at his residence on April 25, 2016 and his attention was drawn to the roadway by a loud noise. He then saw through his home window a Ford pickup drive off the road, hit the guardrail then into the ditch and then hit a rock cut. He testified that this happened shortly before 7 PM as he recalls that he and his wife were waiting the start of a show on T.V.

[4] He and his wife attended the crash site and assisted the female passenger and male driver exit the motor vehicle. When he first attended the vehicle, he mentions that the male driver, which he has known for approximately 10 years as he has done work for him at his golf course, was unconscious. He mentioned that the police and fire department eventually attended the scene and took over the situation.

[5] We then heard evidence from Constable Nagtegaal of the Almaguin Highlands detachment of the OPP. He mentioned that on April 25, 2016 at 7:06 PM he was dispatched to a motor vehicle collision with injuries. He arrived at the scene at 7:19 PM and advised that fire rescue was already on scene. Both the female passenger and the male driver were receiving medical attention at that time by the fire department while awaiting EMS. He attended to the motor vehicle that was sitting in the ditch with the driver side leaning against a rock cut. He noticed in the box of the pickup truck a case of Labatt's Blue bottled beer that was smashed up. He confirmed during cross-examination that the majority of the beer bottles were smashed and it was not possible to determine if any of them had been opened. He then attended the fire truck where the passenger, Catherine Howard and the driver Collin James were resting while awaiting the arrival of EMS. He spoke to the female passenger who advised that her boyfriend, the accused now before the court, was the driver. He at that time detected a strong odour of alcohol from inside the fire truck and was not sure where it was coming from.

[6] EMS arrived at the scene at 7:25 PM and both Ms. Howard and Mr. James then received medical attention in the ambulance. Both were cleared and declared to be medically fit by EMS at 7:48 PM.

[7] The constable then spoke to the accused Collin James at 7:50 PM. He immediately detected a smell of alcohol from his breath. He therefore gave him a Soules caution which he mentioned he understood. An approved screening device demand was made at 7:51 PM which he also understood. A suitable sample was obtained from the accused into the ASD at 7:54 PM. The instrument registered a fail. Accordingly, the accused was arrested at 7:55 PM and was provided his rights to counsel and caution. He did advise that he wished to speak to duty counsel. He describes the accused as being quite cooperative at that time.

[8] The constable and the accused left the scene at 8:03 PM and arrived at the detachment at 8:21 PM. When the accused was removed from the police cruiser, the constable advised that he could smell alcohol from the interior of the motor vehicles. The accused was temporarily put in cells, and was able to speak to duty counsel. This call finished at 8:49 PM and he was then turned over to Constable Bender, a qualified Intoxilyzer technician.

[9] Constable Bender was the last witness called by the prosecution. She mentions that she has been a police officer for over two years and is a designated breathalyzer technician and qualified to operate the Intoxilyzer 8000 C.

[10] During the evening of April 25, 2016, she was at her residence not on duty. She received a call from her Sergeant at approximately 8 PM and was requested to attend the detachment in order to perform a breath test. She arrived at the detachment at 8:25 PM. She set up the 8000C Intoxilyzer and did the appropriate quality assurance test. She testified that the accused was brought to her at 8:50 PM.

[11] The first attempt of obtaining a sample timed out. This means that the accused was not able to provide a suitable sample within the five minutes allocated by the instrument. The instrument therefore needs some time to re-set itself in these circumstances.

[12] Further instructions were provided and the first suitable sample was provided and analysed by the instrument at 9:03 PM. The result of this test was 137 mg of alcohol per hundred millilitres of blood. While waiting 20 minutes between the two tests, she describes the accused as being calm and polite and that he did not want to answer any questions. She did mention that she could smell a strong odour of alcohol from his breath. Later in cross-examination, she did confirm that his speech was also good, his clothing was orderly and that there was no issue with his balance.

[13] A second suitable sample was obtained and analysed by the instrument at 9:23 PM using a new mouthpiece. This sample was analysed and provided results of 146 mg of alcohol per hundred millilitres of blood. The accused was then turned over to Constable Nagtegaal at 9:28 PM and he was placed back into the cells. She then completed her paperwork and returned to her home as she was not working a regular shift.

[14] At the conclusion of the Crown's case, both counsel agreed that during a discussion between the accused and Constable Nagtegaal at the scene of the collision, the accused provided a voluntary statement at the time of the taking of the ASD sample at 7:53 PM. This statement, which is agreed can be used for the truth of its content was that Mr. James' last drink was over one hour ago. Counsel agreed therefore that this voluntary statement indicates that his last drink was before 6:53 PM.

[15] Defence opted not to call any witnesses at this trial. Prior to proceeding to submissions, the Crown conceded that the first sample of the accused breath was not taken within two hours of driving as provided by the Code.

Legal Framework

[16] All of the submissions provided to the court by both the defence and the Crown were in relation to the decision of R. v. Paszczenko and R. v. Lima, 2010 ONCA 615, 272 OAC 27. Submissions by both counsel all relate to how I should interpret this decision. This court therefore assumes that the Crown submits and defence concedes that all other elements of the offence have been proven beyond a reasonable doubt. The court thanks both counsel for their more than reasonable approach to this matter and for narrowing the issues on this matter.

[17] Justice Blair of the Ontario Court of Appeal authored the Paszczenko and Lima decision. It appears that these appeals were heard at the same time. Both of these accused were convicted in the Ontario Court of Justice for operating a motor vehicle while their blood-alcohol concentration exceeded 80 mg. Mr. Paszczenko's conviction was overturned on appeal to the Superior Court of Justice while Mr. Lima's conviction was affirmed. The conclusion of the Court of Appeal was to allow the Crown's appeal on Paszczenko and dismissed Mr. Lima's appeal. Therefore, at the end of the day, both of these accused were convicted of the charges.

[18] Section 258(1)(c) of the Code provides for a presumption that is, that the accused blood level at the time of the offence is alleged to have been committed is the same as the level at the time of the breathalyzer test. This section further provides that for this presumption to apply the breath samples need to be taken as soon practicable after the time when the offence was alleged to have been committed and in the case of the first sample no later than two hours after that time with an interval of at least 15 minutes between the times the samples were taken.

[19] Therefore, when the breath samples are taken outside this statutory two hour limit, the Crown loses this presumption. The Crown in these circumstances must convince the court of projecting the breath test readings backwards in time, commonly known as retrograde extrapolation which is typically based on four assumptions.

[20] The decision in Paszczenko and Lima specifically addresses how the court should deal with these four assumptions. These assumptions can be generalized as follows:

1. No large quantity of alcohol were consumed immediately prior to the collision (this is commonly referred to as no bolus drinking)

2. No alcohol consumption took place after the collision and prior to the Intoxilyzer test

3. A rate of elimination of alcohol from the blood which may range between 10 and 20 mg of alcohol per hundred millilitres of blood per hour

4. A plateau at the lower BAC estimation

Analysis of the Four Assumptions

[21] In the matter at bar, both Crown and defence counsel seemed to agree that the Crown has the burden of proof on assumption one and two noted above. They both also seem to agree that the Crown does not need to prove a rate of elimination as provided by assumption three and the plateau at the lower BAC estimation as provided in assumption four. What they seem to disagree on is in what context the Court of Appeal in Paszczenko and Lima makes its finding concerning these assumption.

[22] The Crown argues that if it satisfies the court that there is no bolus drinking and that there has been no consumption of alcohol after the incident and prior to the breath sample, that the court can then make its own read back estimation. Basically, the Crown suggests that this Court of Appeal decision suggests that you do not need a toxicologist for these read backs.

[23] Defence counsel suggests on the other hand that this Court of Appeal decision does not mean that a trial judge can be its own toxicologist. He mentions that the Crown in the matter at bar is taking the words of the Court of Appeal out of context and removing the important step that the Crown must rely on an expert toxicologist to do the extrapolation.

[24] The assertions made by the Crown about his interpretation of this Ontario Court of Appeal decisions were troublesome to me when they were made. I therefore specifically asked if this case had been judicially considered and was referred to two specific decisions. R. v. Fehr 2015 ABQB 236 and R. v. Kuruvilla 2012 ONSC 5331. These cases were not presented to me in court. I therefore took the liberty of retrieve them myself and also did a brief review of how this decision was judicially considered.

[25] First, the decision of Kuruvilla is simply not on point and in fact does not even mention the decision of Paszczenko and Lima. The Crown must have been mistaken in referring me to this decision.

[26] Paragraph 30 of the Alberta Queens Bench decision in R. v. Fehr mentions that Justice Blair for the Ontario Court of Appeal in Paszczenko and Lima "saw no impediment to judges taking judicial notice of both the plateau and elimination rate assumptions underlying expert toxicologist reports".

[27] In the decision of R. v. Meranger, 2013 ONCJ 567, Justice Paciocco, now of the Ontario Court of Appeal, adopts the reasoning in Paszczenko and Lima and mentions at paragraph 34 that "these two assumptions are broadly considered reliable enough before courts that they have been the subject of judicial notice" while mentioning how the expert toxicologist in his matter dealt with the assumption of the elimination rate and the plateau at the lower BAC.

[28] In the more recent decision of R. v. McGregor, 2015 ONCJ 692, Justice Stribopoulos of our court mentions at paragraph 53 that:

"It is well established that before a trier of fact can rely upon an expert witness's opinion, the facts upon which the opinion is based must be found to exist. That said, there is no obligation to prove assumptions that fall within the scope of the expert's field and that draw on learning from within his or her discipline. As a result, there is no need for case-specific evidence to establish assumptions 3 (elimination rate) and 4 (plateau). However, before any weight can be placed on Dr. Corbett's evidence, the Crown must prove the other preconditions upon which his opinion depends."

[29] These three decisions clearly make reference to the use of an expert in dealing with these assumptions. In fact, by carefully reviewing the Ontario Court of Appeal decision of Paszczenko and Lima, we clearly see that experts were also used in those matters.

[30] The introduction paragraph mentions that "the central issue in each concerns the manner in which the Crown must prove the facts underlying the four assumptions upon which expert toxicology reports were filed in over 80 cases where the breath test has not been administered within two hours of the driving…"

[31] The court mentions at paragraph 22 that "the elimination rate and plateau assumptions are matters of scientific knowledge on which the expert is entitled to rely without further proof by the Crown".

[32] The concluding paragraph (para. 66) mentions that:

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

Court's Conclusion

[33] Clearly, all of this jurisprudence clearly indicates that there is a need for an expert toxicologist to testify or prepare a report when the section 258(1) presumption cannot be relied on.

[34] The suggestion by the Crown that a trial judge can be its own toxicologist would clearly oversimplify this complicated science on how alcohol affects a human body. It is true that many judges, but not all, do deal with over 80 cases on a regular basis and have developed a great deal of knowledge in toxicology. But this is far different than the lengthy years of education and research that expert toxicologists have which renders them capable of providing expert evidence to our court. By allowing judges to be their own toxicologist would be a recipe for disaster.

[35] In the case at bar, the Crown clearly conceded that the first reading was outside the two hour limit as provided by the Code. The presumption created by the Code can therefore not be applied. As we have not received any toxicologist reports or expert evidence to relate the readings back to the time and driving, this court cannot conclude beyond a reasonable doubt that Colin James operated a motor vehicle with over 80 mg of alcohol per hundred millilitres of blood as charged. Accordingly, as Crown has not proven each and every element of the offence, there will be a finding of not guilty on the charge.

Released: May 3, 2017

Signed: Justice A. H. Perron