Court File and Parties
Ontario Court of Justice
Date: December 5, 2017
Court File No.: Ottawa 15-0106
Between:
Her Majesty the Queen
— and —
Mark Vennor
Before: Justice P.K. Doody
Heard on: June 19, September 5, and October 17, 2017
Reasons for Judgment released on: December 5, 2017
Counsel
Vanessa Stewart — counsel for the Crown
James McGillivray — counsel for the defendant
Judgment
P. K. Doody J.:
Part 1: Overview and Issues
[1] The defendant is charged with driving with a blood alcohol concentration of more than 80 milligrams of alcohol in 100 millilitres of blood.
[2] The Intoxilyzer tests which form the basis of the Crown's case were taken more than two hours after the defendant was stopped. As a result, the Crown cannot rely on the presumption under s. 258(1)(c) that the defendant's blood alcohol concentration disclosed by the Intoxilyzer was the same as at the time of driving.
[3] The Crown called James Rajotte, a toxicology expert, to provide opinion evidence of the defendant's blood alcohol concentration at the time of driving. It was his opinion, based on the second of the Intoxilyzer test readings which I will describe below, that the defendant's blood alcohol level was 95 to 140 milligrams of alcohol in 100 millilitres of blood at the time of driving.
[4] That opinion was based on the assumption that the defendant had not consumed large quantities of alcoholic beverages within approximately 15 minutes before being stopped – i.e. that he had not engaged in "bolus drinking". As a result, the Crown has to prove that there was no bolus drinking.
[5] The expert's opinion as to what would constitute bolus drinking – i.e. how much alcohol would have to be consumed shortly before being stopped – was based on the defendant's weight. That weight was assumed by the expert to be 102 kilograms.
[6] The arresting officer testified that he had asked the defendant for his weight just before releasing him after the tests, and the defendant responded 225 pounds – the equivalent of 102 kilograms. This defendant has admitted that this statement is voluntary. But the defendant submits that the statement should not be admitted, because it was obtained in breach of the defendant's rights to be free from unreasonable search and seizure and to be advised of his right to counsel as guaranteed by s. 8 and s. 10(b) of the Canadian Charter of Rights and Freedoms. Although the defendant had spoken to two lawyers before making this statement, defence counsel submits that the questions about the defendant's weight just before being released were a "new procedure" or a "change in jeopardy" as described in R. v. Sinclair, 2010 SCC 35, so that the defendant had to be advised anew of his s. 10(b) rights.
[7] The arresting officer also testified that when he arrested the defendant, he estimated that the defendant was slightly larger than he was, and he was 6 foot 1 inch tall and 200 pounds, causing him to have estimated at that time that the defendant was 6 foot 2 inches or 6 foot 3 inches and "220 plus" pounds. The defendant submits that this evidence should not be accepted, because there was no note of it in the officer's notebook compiled at the time.
[8] Defence counsel also submits that the location where the defendant was stopped was very close to a number of bars, and that this, together with the other circumstances relating to the defendant's arrest that night, prevents the court from concluding that the Crown has proven beyond a reasonable doubt that the defendant did not engage in bolus drinking.
[9] The issues are:
(a) Should the statement made to the arresting officer just before the defendant was released be excluded under s. 24(2) because of a breach of s. 8?
(b) Should the statement made to the arresting officer just before the defendant was released be excluded under s. 24(2) because of a breach of s. 10(b)?
(c) Should I accept the officer's evidence that he estimated the defendant's weight to be approximately "220 plus" pounds at the time he arrested him?
(d) How much alcohol would the defendant have had to consume shortly before being arrested in order for the expert's assumption of no bolus drinking to be invalid?
(e) Has the Crown proven beyond a reasonable doubt that the defendant did not engage in bolus drinking?
Part 2: The Police Did Not Breach the Defendant's s. 8 Rights by Asking Him for His Height and Weight Before Releasing Him
[10] Defence counsel relied on R. v. MacLachlan, 2017 ONSC 1471. That was a decision of Labrosse J. dismissing an appeal from Anderson J. of this court. Anderson J. had held that the defendant's section 8 rights were breached when the police told her that she had to be weighed. The defendant stated that she did not wish to be weighed. The police told her that the weighing was mandatory. As a result, she complied. Both Anderson J. and Labrosse J. held that there was no authority for the police demand that she subject herself to being weighed.
[11] That is not this case. The officer asked the defendant how much he weighed. The defendant voluntarily told him. It is admitted that that statement was voluntary. There is no suggestion that the police told the defendant that he had to answer the question. If he had, and the defendant believed that he had a legal obligation to provide the information, it would not have been voluntary. I conclude that there was no s. 8 breach.
Part 3: Subsection 10(b) Did Not Require the Police to Give the Defendant Another Opportunity to Consult Counsel Before Asking for His Weight
(a) The Law – A Second Consultation with Counsel is Only Required Where Developments in the Course of the Investigation Require New Legal Advice Relevant to the Detainee's Right to Choose Whether to Cooperate with the Police
[12] The Supreme Court of Canada established in R. v. Sinclair, 2010 SCC 35, that in most cases, the police are only required to advise a detainee of his or her right to consult counsel and provide an opportunity to do so once – upon the person being initially detained. As the majority of the Court held, the general principle is that a second opportunity to consult counsel has to be given where changed circumstances make it necessary to fulfill s. 10(b)'s purpose. That purpose is to provide the detainee with legal advice relevant to his right to choose whether or not to cooperate with the police investigation. An example of such changed circumstances is when the police wish to institute a "non-routine procedure". McLachlin C.J.C. and Charron J. explained this, writing for the majority at paragraph 50:
The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary: R v. Ross, [1989] 1 S.C.R. 3.
(b) Facts: The Defendant Had Spoken to Two Lawyers Before Being Asked His Weight, and the First Test Had Been Given More Than Two Hours After Being Stopped When He Spoke to the Second Lawyer
[13] The facts set out in this section were not disputed. They came from the evidence of Sgt. Birmingham, the arresting officer, and notes of Cst. Guy, the breath technician, which were admitted on consent. I accept Sgt. Birmingham's evidence on these points.
[14] The defendant was stopped as part of a RIDE program at 1:09 a.m.
[15] At 1:19 a.m., following a proper ASD demand, he failed the ASD test. This gave Sgt. Birmingham reasonable and probable grounds to arrest him for driving a vehicle with over 80 milligrams of alcohol in 100 millilitres of blood. At 1:23 a.m. he was told of his right to counsel. He was cautioned that he need not provide a statement and, at 1:26 a.m., was given a demand that he provide a sample of his breath into an approved instrument at the station. He was taken to the station where, at 1:38 a.m., he was given a list of lawyers and asked to choose which lawyer he wished to speak to.
[16] Sgt. Birmingham sat with the defendant for 22 minutes while the defendant looked at the list of lawyers. The defendant could not decide whether to ask the officer to call a particular lawyer or call duty counsel. At 2:00 a.m. Sgt. Birmingham called duty counsel. Duty counsel called back at 2:10 a.m. At 2:11 a.m. that call was transferred to the defendant in a private room.
[17] At 2:36, Sgt. Birmingham looked through the window into the room where the defendant spoke to duty counsel. The defendant appeared to be talking on the phone. Sgt. Birmingham knocked, opened the door, and asked the defendant if everything was okay. The defendant replied that he wanted 15 more minutes. Sgt. Birmingham was suspicious because the defendant had earlier taken so long deciding which lawyer to call. He took the phone from the defendant. There was nobody on the phone. It was dead.
[18] Sgt. Birmingham then turned the defendant over to Cst. Guy, the breath technician, at 2:36 a.m. She asked him if he had spoken to a lawyer. He said that he had spoken to duty counsel, but not to his lawyer of choice. The defendant told Cst. Guy that he had the right to pick a lawyer of his choice. She asked him which lawyer he wished to speak to, and he told her that he wished to consult Lawrence Greenspon. Cst. Guy asked Sgt. Birmingham to call Mr. Greenspon, and told the defendant that she would continue with the test, but that if Sgt. Birmingham contacted Mr. Greenspon, she would stop the test and he could speak with him. The defendant continued to protest, but Cst. Guy told him that since he had already spoken with duty counsel, she was going to continue with the breath test.
[19] At 3:02, 3:04, and 3:08 the defendant either refused to provide a sample or provided an insufficient sample. At 3:10, he provided a sufficient sample. The Intoxilyzer read 101 milligrams of alcohol in 100 millilitres of blood.
[20] In the meantime, Sgt. Birmingham had been attempting to get hold of Mr. Greenspon. At 2:45 a.m. he called Mr. Greenspon's business number as set out in the list in the cell block. He left a message asking Mr. Greenspon to call back. He then called Mr. Greenspon's listed home number. That number was not valid. At 2:51 a.m. Sgt. Birmingham told Cst. Guy and the defendant that he had left a message but had otherwise been unable to contact Mr. Greenspon. Sgt. Birmingham also tried Googling Mr. Greenspon and sent him an email.
[21] Cst. Guy then told Sgt. Birmingham that she had had similar problems contacting Mr. Greenspon a couple of years before, and had been able to find a correct number for Mr. Greenspon. She retrieved her notebook from December 2014, located the number, and gave it to Sgt. Birmingham. He then tried that number. He got a voicemail message asking callers to call Eric Granger, Mr. Greenspon's partner, at a particular number. Sgt. Birmingham did so, and got a voicemail message asking callers to call Trevor Brown, who was at that time also a partner of Mr. Greenspon.
[22] At 3:20 a.m., Sgt. Birmingham called Mr. Brown. He answered the phone. Sgt. Birmingham told Cst. Guy and the defendant that he had reached Mr. Brown. The second test had not yet been started. The defendant was then put in the private room to speak with Mr. Brown. He did so, starting that conversation at 3:25 a.m. He spoke to Mr. Brown for 6 minutes, ending the call at 3:31 a.m.
[23] The defendant was then given back to Cst. Guy. She administered the second Intoxilyzer test. The defendant gave a suitable sample at 3:40 a.m. The result was 90 milligrams of alcohol in 100 millilitres of blood.
[24] The defendant was returned to Sgt. Birmingham's custody at 3:44 a.m. Sgt. Birmingham asked him for his height and weight. The defendant told him that he was 6 foot 2 inches tall and 225 pounds. The defendant has admitted that this statement was voluntary. In cross-examination, Sgt. Birmingham testified that he asked for this information so that he could put it on CPIC, the police computerized information system. He admitted that he did not tell the defendant he could speak to a lawyer before asking him this. He testified that he believed that he did not need to do so, since he had already spoken to a lawyer. I accept this evidence.
(c) Analysis: The Police Did Not Have to Give Another s. 10(b) Warning Before Asking His Weight Because Circumstances Had Not Changed Since He Spoke to Counsel
[25] Defence counsel submits that asking the defendant for his weight was a new, "non-routine procedure", akin to a polygraph or a line-up as discussed at paragraph 50 of Sinclair. I disagree. When the defendant spoke to both lawyers, he knew he was being detained so that he could provide a breath sample. As the Chief Justice and Justice Charron wrote, the legal advice he was provided would have been geared to the expectation that the police would seek to question him. That is exactly what happened.
[26] Furthermore, when the defendant spoke to Mr. Brown at 3:25 a.m., he had already provided his first breath sample, at 3:10 a.m. That sample was provided 2 hours and 1 minute after he was stopped at 1:09 a.m. As a result, the Crown could not rely on the presumption under s. 258(1)(c) that the defendant's blood alcohol concentration at the time of the test was the same as at the time of driving. If the Crown were to prosecute the defendant, it would have to call an expert toxicologist who would necessarily base his opinion on an assumption that there was no bolus drinking. That may have required the Crown to prove the defendant's weight. The defendant's weight was thus a live issue when the defendant spoke to Mr. Brown. It did not arise thereafter. There was no change of circumstances between the defendant speaking to Mr. Brown and Sgt. Birmingham asking the defendant for his weight.
[27] The police were not required to provide the defendant with another opportunity to consult counsel before asking him his weight. There was no s. 10(b) breach.
[28] The defendant's statement that he weighed 225 pounds and was 6 foot 2 inches tall is admitted into evidence.
Part 4: Sgt. Birmingham's Evidence That He Had Estimated the Defendant to Weigh "220 Pounds Plus" When He Arrested Him Is Not Reliable
(a) The Law: It Is Proper to Consider the Absence of Notes When Determining Whether to Accept an Officer's Evidence
[29] Police officers take notes in order to allow them to refresh their memory. As Moldaver J. wrote on behalf of the majority of the Supreme Court of Canada in Wood v. Schaeffer, 2013 SCC 71:
The purpose of notes is not to explain or justify the facts, but simply to set them out. Indeed, until human ingenuity develops a technology that can record sights, sounds, smells, and touch, an officer's notes are effectively the next best thing. In this regard, I note that the OPP Basic Constable Workbook instructs officers that:
Your notes are made from independent recollection and are your link to the past. They are there to assist you to gather the facts and details and to properly record events, observations and performances experienced during general duty functions and investigations ... . [I]t is your responsibility to maintain an up-to-date record of what you have done, seen, heard, smelled, or touched during your tour of duty. [emphasis added by Moldaver J.]
(Ontario Police College, Basic Constable Training Program -- Student Workbook (2008), at p. 2)
[30] As Maisonneuve J. (as she then was) held in the unreported decision in R. v. Fisher (Jan. 22, 2004), the absence of notes is something to consider when determining whether to accept a police officer's evidence. Officers are trained to record important facts in their notes and the absence of notes may be an indication that either the event did not happen or the officer's memory has been affected by other matters so that it is not reliable.
(b) The Evidence: Sgt. Birmingham Testified That He Estimated the Weight of the Defendant When He Arrested Him, But Made No Note of It and Later Heard the Defendant's Admission and Weighed Him
[31] At trial, Sgt. Birmingham testified that when the defendant stepped out of his car at the RIDE stop, he noticed that the defendant was slightly larger than he was. He said he was 6 foot 1 inch tall and 200 pounds. Consequently, he estimated that the defendant was 6 foot 2 inches tall or "220 plus" pounds.
[32] Sgt. Birmingham made no note of having noticed this, or estimated the defendant's weight, at the time he encountered him on July 16, 2015.
[33] He did, however, have a note of the defendant telling him just before he released him that he was 6 foot 2 inches tall and 225 pounds.
[34] On August 20, 2015 the defendant attended at the police station for the purpose of providing his fingerprints and having his picture taken under the Identification of Criminals Act. He met Sgt. Birmingham. Sgt. Birmingham had the defendant step on a scale. He noted his weight. The Crown is not seeking to introduce that evidence to prove the defendant's weight in this trial.
[35] In cross-examination, Sgt. Birmingham testified that the defendant's admission of his height and weight, and the weight recorded on the scales, "may have been at the back of my mind" when he testified that he remembered estimating his weight earlier that evening.
(c) Analysis: Sgt. Birmingham's Evidence of Having Estimated the Defendant's Weight Is Not Reliable
[36] Sgt. Birmingham's evidence was given in June, 2017, almost two years after the incidents giving rise to this charge. In that time, he must have had encounters with innumerable individuals. He admitted that his memory of his earlier estimate of the defendant's weight may have been affected by the statement and weighing that he did have notes of. Considering all of the circumstances, I am not prepared to accept that Sgt. Birmingham's memory of his estimate is reliable. I have no doubt that he is honestly testifying as to what he recalls. I am simply not satisfied that his memory is reliable. Consequently, I will not rely on that evidence.
Part 5: The Defendant Would Have Had to Consume 2 Standard Drinks Within 20 Minutes Before Driving for His Blood Alcohol Concentration to Be 80 Milligrams of Alcohol Per 100 Millilitres or Below
[37] Mr. Rajotte testified in examination in chief that if the defendant weighed 225 pounds he would have had to have consumed between 2 and 3 ¼ standard alcoholic beverages within the 15 minutes before the incident to have had a blood alcohol concentration of 80 milligrams of alcohol in 100 millilitres of blood or less at the time of the incident.
[38] In cross-examination, he testified that while the Intoxilyzer typically under-estimates, it is possible for it to over-estimate blood alcohol concentration by up to 10%. Thus it was possible for the defendant's blood alcohol concentration to have been 81 mg/100 ml at 3:40 a.m. He also admitted that it was "not beyond scientific comprehension" that it would take 20 minutes, rather than the 15 minutes upon which he had based his earlier opinion, for a person's blood alcohol concentration to peak.
[39] On that basis, Mr. Rajotte testified that it is "scientifically possible" that if the defendant weighed 225 pounds (as I find him to have weighed, based on his admission to Sgt. Birmingham) and had 2 standard drinks within the 20 minutes before 1:09 a.m. he could have had a blood alcohol concentration of 80 mg/100 ml or less at 1:09 a.m. I accept this evidence.
[40] A standard drink is defined as 12 fluid ounces of beer of 5% alcohol by volume, 5 fluid ounces of wine of 12% alcohol by volume, or 1 ½ fluid ounces of spirits of 40% alcohol by volume.
Part 6: The Crown Has Proven That the Defendant Did Not Consume 2 Standard Drinks Within 20 Minutes Before Driving
(a) The Law: "Bolus Drinking" Is Largely a Matter of Common Knowledge and Common Sense About How People Behave
[41] Blair J.A. summarized the law on this issue in R. v. Paszczenko; R. v. Lima, 2010 ONCA 615:
28 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? …
29 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: 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.
32 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.
(b) The Evidence: Many Bars Nearby, But No Other Evidence to Support Bolus Drinking
[42] The defendant was stopped during a RIDE program on Castle Frank Avenue near the overpass over Highway 417. There are many bars and licenced restaurants nearby. Defence counsel listed 14 bars within a 2 to 5 minute drive. While Sgt. Birmingham could not identify all of them, he did agree that there was a high concentration. That is why the RIDE program was set up there – because, as Sgt. Birmingham put it, "our analytics show that our results of getting impaired drivers there is good".
[43] When the defendant was stopped, Sgt. Birmingham detected an odour of alcohol on his breath. He testified that he could not tell if the odour was fresh or stale.
[44] Sgt. Birmingham also testified that it would take between 2 and 5 minutes to get to the RIDE program from one of these establishments, and perhaps another minute or two if traffic lights were against the driver.
[45] There was no evidence of where the defendant had been drinking, what time he had left that place, what he had been drinking, or when he had consumed his drinks.
(c) Analysis: The Defence Has Not Pointed to Something in the Evidence That Puts Bolus Drinking in Play
[46] The onus is, of course, on the Crown to prove that the defendant did not engage in bolus drinking – in this case, to prove that he did not have two drinks in the 20 minutes before he was stopped that night. But the defendant needs to point to some evidence to put the issue into play.
[47] All the defendant has pointed to is the prevalence of drinking establishments within a few minutes' drive of the RIDE program, and the fact that only two drinks need to have been consumed in the previous 20 minutes. In my view, that is not enough.
[48] There was no evidence of empty beer cans in the car, of the defendant exhibiting increased signs of intoxication after being stopped and before providing his breath sample, or anything else that would be relevant to the issue.
[49] I am entitled to, and do, rely on the common sense inference that people do not normally ingest large amounts of alcohol just prior to driving. I see nothing to displace that inference in this case.
[50] I conclude that the Crown has proven beyond a reasonable doubt that the defendant did not consume 2 drinks in the 20 minutes before being stopped.
Part 7: Conclusion
[51] The Crown having established all elements of the offence beyond a reasonable doubt, I find the defendant guilty of operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.
Released: December 5, 2017
Signed: Justice P.K. Doody