Court Information

Ontario Court of Justice

Date: 2017-11-14

Court File No.: Toronto Old City Hall

Parties

Between:

Her Majesty the Queen

— and —

Deborah Craig

Judicial Officer and Counsel

Before: Justice J. Ritchie

Heard on: September 5, 6, 7 and October 25 of 2017

Reasons for Judgment released on: November 14, 2017

Counsel:

• Ms. M. Goldenberg – Counsel for the Crown
• Mr. W. G. Orr, Q.C. – Counsel for the Accused

Judgment

J. RITCHIE, J.:

The Charge

[1] Deborah Craig is accused that, on April 7, 2016 in Toronto, she operated a motor vehicle while her ability to do so was impaired by alcohol or a drug and while her blood-alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[2] The defence has raised many weighty issues, including Charter of Rights issues. I thank both Counsel for a job well done. I am grateful also for the very helpful case law that they provided for my consideration.

[3] The trial in this matter continued over four days. The Crown called two civilian witnesses, three police officers and an expert witness to testify. The defence elected to call no evidence. The Charter motion and trial were by agreement conducted on a blended basis. A voir dire was also conducted with regard to two utterances of the defendant that the Crown sought to have admitted in evidence.

The Facts

[4] The fact situation on the road was pieced together from the evidence of four witnesses. Abdul Qadar was driving on Highway 409 on April 7, 2016. Suddenly his vehicle was struck from behind. The right front part of Ms. Craig's vehicle collided with the left rear part of Mr. Qadar's vehicle. Mr. Qadar said that the vehicle that hit him did not stop. It drove away eastbound at a high speed, zigzagging between lanes.

[5] A short time later, Zabihullah Hakimi, a tow truck operator, saw Ms. Craig's vehicle driving eastbound on Highway 401 at Highway 400. He saw her pull over to the right shoulder. The front right tire of her vehicle was shredded and leaving debris on the road. The right front part of the car was severely damaged, and Mr. Hakimi said it was undriveable.

[6] Officer Lillian Yeh of the Ontario Provincial Police arrived on the scene about 10 to 15 minutes later. She noted that Ms. Craig had glassy eyes and an odour of an alcoholic beverage on her breath. The officer required Ms. Craig to take a breath test on an approved screening device. The result was a "fail" reading.

[7] Ms. Craig was arrested for "over 80 milligrams operation", taken to a police detachment and required to provide breath samples into an approved instrument. Her readings were 216 milligrams and 199 milligrams of alcohol in 100 millilitres of blood. A second charge of impaired driving was added.

[8] A toxicology expert, Dr. Marie Elliot of the Centre of Forensic Sciences, also testified for the Crown. Dr. Elliot said that Ms. Craig's projected blood alcohol concentration (BAC) between approximately 8:30 p.m. and 10:30 p.m. would have been between 190 milligrams and 265 milligrams of alcohol in 100 millilitres of blood. The toxicologist also gave her "scientific opinion [that] an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range".

The Issues at Trial

Voluntariness Voir Dire

[9] The defence conceded that the Crown had established the voluntariness of the two statements made by Ms. Craig in the breath room. The statements are contained in Exhibit 2. I agree with the defence that the whole of Exhibit 2 is evidence. The statements in question were admissions of driving by Ms. Craig. In addition, there is the evidence of Mr. Hakimi who saw Ms. Craig driving her vehicle at about 10:08 to 10:13 p.m. The fact that Ms. Craig was driving the damaged motor vehicle is based on very strong evidence. In essence, the Crown proved it in duplicate.

Charter Section 10(b) – Right to Counsel

[10] The defence submitted that Ms. Craig had a cell phone in her vehicle and she should have been allowed to consult with counsel at the roadside. Since Officer Yeh did not make that accommodation, the defence submitted that Ms. Craig's right to counsel under section 10(b) of the Charter of Rights was breached.

[11] I do not agree. It was unsafe to attempt to reach counsel by cell phone at the side of a high-speed highway, as Officer Yeh testified, and it was impractical given the lack of privacy. Further, Ms. Craig was taken to the OPP detachment right away, and her right to consult counsel was accommodated first thing. Nothing happened during the trip to the detachment, and the so-called delay was therefore of no consequence. Further, Ms. Craig was in no way prejudiced. There was no breach of her right to counsel.

Charter Section 8 – Search and Seizure

[12] The defence submitted that Officer Yeh was not entitled to rely on the test result produced by the approved screening device. According to the defence submission, the approved screening device was not properly tested and calibrated - it was not done in a meaningful way - there was "no evidence that anyone qualified to do so calibrated the device".

[13] In my opinion, the law does not require proof of those matters. I refer to the decision of Justice Durno in R. v. Mastromartino, [2004] O.J. No. 1435, at paragraph 79:

"An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying on a "fail" result to confirm his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly."

An earlier decision of the Ontario Court of Appeal (R. v. Coutts, [1999] O.J. No. 2013, at paragraphs 19 and 20) is to the same effect.

[14] In the present case, it was sufficient that Officer Yeh had a subjective belief that the device was in proper working order and that the belief was objectively reasonable. The stickers on the device told the officer that it had been properly calibrated and that an accuracy check had been carried out a week earlier. Officer Yeh had tested the device at the beginning of her shift, and she did a "self-test" just before testing Ms. Craig. The officer testified to her belief that the device was in proper working order. Officer Yeh was entitled to rely upon and act upon the "fail" result. Therefore, there was no section 8 Charter breach.

Lost Evidence

[15] The defence submitted that Charter sections 7 and 11(d) were violated by the lack of in-car and booking room video-recordings – the defendant could not make full answer and defence because of that missing evidence.

[16] Officer Yeh explained that Ontario Provincial Police vehicles are not equipped with in-car cameras and that the Ontario Provincial Police do not do "bookings".

[17] The decision of Justice Durno in R. v. Piko, [2000] O.J. No. 3605, at paragraph 6, is helpful:

"Mr. Price argues the failure to videotape [the breath testing on an Intoxilyzer] violated Mr. Piko's rights under sections 7 and 11(d) of the Charter …This is not a case where police lost or destroyed evidence. Here the evidence never existed. While the trial judge would have benefited from a tape of the appellant's condition, comments and efforts at providing a sample, there is no requirement the proceedings be recorded. Absent police negligence regarding evidence which they possessed or a deliberate avoidance of recording when the facilities were available, there was no Charter violation."

[18] The short answer to the defence submission is that the law does not require video-recording in the two situations that were referred to. I note further that video-recordings of that nature are somewhat peripheral to the drink/drive allegations and are therefore of more limited evidentiary value. "Full answer and defence" is not hampered, since much viva voce evidence respecting an incident is available from the persons directly involved. In my opinion, sections 7 and 11(d) of the Charter of Rights and Freedoms were not breached, in the circumstances of the present case.

Sufficiency of the Evidence Respecting Impairment by Alcohol

[19] The defence relied strongly on the fact that Ms. Craig was not exhibiting the traditional indicia of impairment, such as unsteadiness on her feet, slurred speech, poor motor skills or mental confusion and difficulty understanding.

[20] The decision of the Ontario Court of Appeal in R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, gives some useful direction. The Court stated at paragraph 56:

"An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test …The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information."

The Court was referring to a police officer's reasonable and probable grounds for an arrest, but the principles apply equally to the question of whether the Crown has proven that an accused person's ability to operate a motor vehicle was impaired by alcohol.

[21] In the present case, apart from the odour of an alcoholic beverage on Ms. Craig's breath, there were factors indicating impairment by alcohol. Ms. Craig had glassy eyes. Also, there was evidence of very bad driving. Ms. Craig had crashed her motor vehicle into the back of Mr. Qadar's vehicle while they were driving on a high-speed highway. Then Ms. Craig took off at a high rate of speed, zigzagging between lanes. The driving was atrocious, and I infer from the circumstances that alcohol was a major factor. Also, by leaving the scene of an accident, Ms. Craig showed that her judgment was affected by alcohol.

[22] The decision of Justice Durno in R. v. Grant, 2014 ONSC 1479, at paragraphs 67 and 68, is pertinent. Justice Durno stated as follows:

"Where an accident is unexplained, for example, where a car drives into a parked car, when coupled with evidence of alcohol consumption it may be sufficient … to establish the driver's guilt for driving while his or her ability to do so was impaired by the consumption of alcohol … [In the present case], what remains is the reasonable inference that the accident was caused by the impairment of the accused's ability to operate a motor vehicle."

I come to similar conclusions. Ms. Craig crashed into the back of a vehicle travelling on the open highway and then fled, making it a "hit and run" situation. The reasonable inference is irresistible.

[23] Ms. Craig was driving with a cast on one arm, but it is speculative and in fact it makes no sense to suggest that the cast caused her to rear-end a vehicle that was travelling down the open road and to flee the scene. I conclude that Ms. Craig's driving skills and judgment were impaired by alcohol.

[24] The defence submission questioned the lack of direct evidence respecting whether it was Ms. Craig's vehicle that collided with Mr. Qadar's vehicle. In light of the proximity of time and place between the scene of the collision and the place where Mr. Hakimi saw Ms. Craig pull over, together with Ms. Craig's direction of travel and the "match" between the damage to Mr. Qadar's and Ms. Craig's vehicles, there is no air of reality to the suggestion that Mr. Qadar's vehicle may have been struck by some other unknown driver. In my opinion, there is strong circumstantial evidence on this issue.

[25] Further on the impairment issue, when Detective Anthony Arnone (the qualified breath technician) was being cross-examined about the fact that Ms. Craig was not showing signs of impairment in the breath room video, he said "true, but I was closer, and I saw her in person …she was intoxicated". The Ontario Court of Appeal has made clear that the opinion of a lay person respecting a drinking person's state of inebriation can be given weight. A person's opinion, based on their observations, that another person is intoxicated can be probative evidence of impairment by alcohol.

[26] In my view, the factors I have listed above (considered in combination) demonstrate at least slight impairment by alcohol. As the Ontario Court of Appeal ruled in R. v. Stellato, [1993] O.J. No. 18, slight impairment is impairment.

[27] In fact, the law respecting degrees of impairment has been stated by the Ontario Court of Appeal on a number of occasions. I refer to the Court's decision in the case of R. v. Moreno-Baches, 2007 ONCA 258, [2007] O.J. No. 1314, paragraph 2, where the Court held as follows:

"Suffice it to say that this court's decision in R. v. Stellato … 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."

[28] In the present case, there was also the expert opinion of the toxicologist, Dr. Elliot, that Ms. Craig's ability to operate a motor vehicle was impaired by alcohol in light of her blood alcohol concentration (BAC). That opinion regarding impairment by alcohol is powerful evidence. In my view, the Crown has proven impairment a second time through the report and testimony of Dr. Elliot.

[29] The defence submitted that Dr. Elliot was not an impartial witness, primarily because she stated that "the lack of signs of intoxication is not meaningful, because of possible tolerance to alcohol" and because she was unwilling, as a scientist, to say that all people would be intoxicated at a particular BAC. In my view, Dr. Elliot was simply giving her expert opinion, and I see no basis for questioning her impartiality. I accept Dr. Elliot's opinion that "with heavy drinkers, the body compensates for the effects of alcohol, and tolerance to high BACs develops – for example, they may walk and talk without showing signs of impairment". On the second issue, I understand and accept her professional unwillingness to speak in absolutes about matters that have not been scientifically tested and clinically proven to the satisfaction of the scientific community. Dr. Elliot provided evidence regarding Ms. Craig's circumstances, which is all that can reasonably be required of her. I accept Dr. Elliot's testimony without any reservations.

Over 80 Milligrams Operation

[30] An issue arose as to whether the "two-hour presumption" applies in this case. In my view, the Crown was entitled to rely on it. Officer Yeh arrived on the scene at 10:23 p.m., and Mr. Hakimi had seen Ms. Craig driving her vehicle 10 or 15 minutes earlier. The first breath test on an approved instrument was conducted at 11:49 p.m. Even if Mr. Hakimi was mistaken and he had actually waited one-half hour before Officer Yeh arrived, the presumption would still apply. However, Mr. Hakimi's testimony on the issue was clear and straightforward, and he was not shaken on cross-examination. I accept that Mr. Hakimi's testimony respecting the passage of time was accurate.

[31] The Crown, out of an abundance of caution, provided the evidence of Dr. Elliot, a toxicology expert, to "read back" the Intoxilyzer test results to the time of Ms. Craig's driving. The defence focused on two assumptions in Dr. Elliot's report, namely that there had been no "bolus drinking" and that Ms. Craig had not been drinking after the incident. In each instance, there was no evidence respecting any such drinking.

[32] The law is clearly stated in by the Ontario Court of Appeal in R. v. Paszczenko, 2010 ONCA 615, at paragraphs 27, 29 and 32:

"[27] Bolus drinking is generally meant to describe the consumption of large quantities of alcohol immediately or shortly before driving … [29] Triers of fact may resort to a common sense inference … that people do not normally ingest large amounts of alcohol just prior to, or while, driving … [32] [There is] a practical evidentiary burden on the accused … to point to something in the evidence … that at least puts the possibility that the accused had engaged in bolus drinking in play."

[33] The defence submitted that four factors that were reflected in the evidence "put the possibility into play".

[34] The factors were: 1) Ms. Craig had a strong odour of an alcoholic beverage on her breath, 2) The police officers did not observe the traditional signs of impairment, such as slurred speech and unsteadiness on her feet, 3) Ms. Craig's vehicle was not searched for alcohol, and 4) Ms. Craig was not asked when she had had her last drink. In my view, none of those factors raise any suggestion that bolus drinking may have occurred. For example, a strong odour of an alcoholic beverage on Ms. Craig's breath is equally indicative of bolus drinking and of no bolus drinking. I fall back on the reasonable inference that the consumption of a large quantity of alcoholic beverages just prior to driving defies common sense. As the Ontario Court of Appeal noted in R. v. Grosse, [1996] O.J. No. 1840, at page 6, this is "merely applying common sense as to how ordinary people behave".

[35] On the second issue (alcohol consumption after the driving), neither Mr. Hakimi nor Officer Yeh saw any alcoholic beverages at the scene nor did they see Ms. Craig consume any alcoholic beverages.

[36] In my opinion, the Crown adduced sufficient evidence to establish that the assumptions were valid in the circumstances and that Dr. Elliot's opinion had a firm basis.

[37] Therefore, in my opinion, the evidence established that the first test on the Intoxilyzer was conducted less than two hours after Ms. Craig's driving and that the lower of her two readings was 199 milligrams of alcohol in 100 millilitres of blood. The evidence of Dr. Elliot also established that Ms. Craig's BAC was at least 190 milligrams of alcohol in 100 millilitres of blood at the time of her driving. As a result, I conclude from all of the evidence that Ms. Craig's BAC was 190 milligrams of alcohol in 100 millilitres of blood at the time of her driving.

Subsection 24(2) of the Charter of Rights

[38] In light of my dismissal of the Charter motion, it is not necessary to address the submissions respecting subsection 24(2) of the Charter of Rights. However, if I were required to do so, I would note that, in my opinion, Officer Yeh acted in good faith and did the best job she could. Also, a breath test is a minimally intrusive procedure. I would not take the view that the defendant's Charter-protected interests were significantly infringed by the police or that any evidence should be excluded.

Other Issues

[39] The defence raised some lesser issues in passing, such as whether Officer Yeh should have inquired into possible mouth alcohol and whether Ms. Craig was over-held at the police detachment. I considered all such issues, but they were explained and satisfactorily answered by the evidence, in my view.

Conclusions

[40] The onus in a criminal prosecution never shifts to the defendant under any circumstance. At all times, the burden rests solely on the Crown to prove all elements of the offences beyond a reasonable doubt. If a reasonable doubt exists at any time, the defendant must be acquitted.

[41] I have considered carefully the totality of the evidence, the submissions of Counsel and the case law that was provided to me. I am satisfied that the Crown has discharged the burden upon it. There will be findings of guilty on both counts.

[42] Pursuant to the Kienapple decision, I am staying the impaired driving count.

Released: 2017-11-14

Signed: Justice J. Ritchie