Court File and Parties

Court File No.: 17-0391 Date: February 27, 2018 Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Brody Gregg

Before: Justice Michael G. March

Heard on: December 4, 2017, January 5 & 29, 2018

Reasons for Judgment released on: February 27, 2018

Counsel:

• Hali Adair, for the Crown
• Anna Brylewski, for the Accused

Judgment

March, M.G., J.:

Introduction

[1] Brody Gregg ("Gregg") stands charged that on March 19, 2017, he had the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of the Criminal Code ("the Code"). By agreement of Crown and defence counsel, a blended voir dire and trial began before me on December 4, 2017 following the entry by Gregg of a 'not guilty' plea to the charge.

[2] The defence brought an application under sections 8, 9 and 10 of the Canadian Charter of Rights and Freedoms ("the Charter") seeking an exclusion of the breath test evidence obtained from Gregg, as well as a Toxicology Letter of Opinion ("the Letter") from Jean-Paul Palmentier, M.Sc., Forensic Scientist ("Palmentier") dated May 9, 2017 under subsection 24(2) of the Charter.

[3] The Crown contended that there was no infringement or denial of Gregg's Charter rights as alleged. Alternatively, the Crown argued that if there was a breach of Gregg's rights, the admission of the evidence of his breath tests and the Letter based on them would not bring the administration of justice into disrepute.

The Relevant Facts

Cst. Teasdale

[4] On March 19, 2017, Cst. Teasdale of the Ontario Provincial Police ("OPP") was near completion of his 12 hour, 7:00 p.m. to 7:00 a.m. shift. At around 6:30 a.m., he learned of a report made to the Bancroft OPP that there was a vehicle in the ditch within his jurisdiction. Cst. Teasdale at the time was assigned to general law enforcement duties with the Killaloe detachment of the OPP.

[5] Highway 28 near Little Ireland Road, the approximate location of where the vehicle was spotted in the ditch, is a considerable distance from the Killaloe detachment. At 8:03 a.m., Cst. Teasdale arrived on scene and found the vehicle. The tire marks on the highway indicated that the vehicle had left the eastbound lane, crossed over the westbound lane and ended up in the westbound ditch facing east. Cst. Teasdale was not able to determine whether a tow truck would have to be called in order to extract the vehicle.

[6] Cst. Teasdale observed no footprints around the vehicle to suggest anyone had attempted to exit after its entry into the ditch. The officer observed a male occupant, Gregg, in the vehicle. Gregg appeared to be asleep in the front passenger seat of the vehicle.

[7] Cst. Teasdale knocked on the passenger side window. Gregg responded a while later and lowered the window. The radio was on. The engine was running.

[8] The officer remarked that the road conditions were clear and dry at the time of his arrival on scene. There was no fresh snow. He observed no other occupants in the vehicle. Nor did Cst. Teasdale notice any damage to the vehicle. No airbags had deployed.

[9] Cst. Teasdale asked if Gregg was okay. Gregg responded he was. Cst. Teasdale remarked that Gregg had no visible injuries. Gregg did not appear to be in any medical distress. Cst. Teasdale then observed that Gregg's eyes were glossy. His speech was slurred. There was an odour of alcohol on his breath.

[10] Cst. Teasdale asked who was driving. Gregg answered it was "Matt . . . Mark. . . Matt Stevenson . . .no Mark Bean." Gregg identified himself to the officer. Gregg then offered:

"I know it's a charge to have the keys in the vehicle, but I wasn't driving. It's Ontario. I have to stay warm."

[11] Gregg claimed his friend, presumably the driver, had left the scene. Cst. Teasdale asked when Gregg had consumed his last drink. Gregg thought it was around 2:00 a.m. He had been at a St. Patrick's Day celebration.

[12] Cst. Teasdale had Gregg exit the vehicle. Gregg fumbled with the door handle. It appeared to Cst. Teasdale that it took Gregg six to seven seconds to find the passenger door handle. The officer observed some swaying on Gregg's part as he stood outside. Gregg asked, "Can you just take me to my parents'?" Gregg then turned and started to walk away.

[13] Cst. Teasdale informed Gregg that he was under investigative detention for "care and control" as he walked Gregg to the shoulder of the road at approximately 8:20 a.m. Gregg was swaying and unsteady. He told the officer, "I'm gonna go." Gregg took a couple of steps away from the officer. Cst. Teasdale then ordered Gregg to turn around. He handcuffed Gregg behind the back for "fear of flight" and out of a safety concern.

[14] Cst. Teasdale testified that Gregg was otherwise co-operative with him. He was neither aggressive nor combative. The officer read the approved screening device ("ASD") demand to Gregg. Gregg failed the test at 8:23 a.m. Cst. Teasdale then informed Gregg he was under arrest. The officer searched Gregg's pockets. He found a wallet and two sets of keys.

[15] When asked during examination-in-chief by the Crown about the reasons for handcuffing Gregg, Cst. Teasdale explained that:

• he was concerned Gregg may attempt to flee;
• Gregg had turned twice away from him;
• Gregg was generally dismissive of the investigation;
• Gregg had his hands in his pockets at times;
• he was concerned about what Gregg may have in his pockets;
• he did not rule out the possibility that Gregg could have a weapon, or may use an object as a weapon;
• Gregg had mentioned that another person, the driver, may be around;
• he was with Gregg in a very secluded, rural area; and
• there was very little traffic and no houses nearby, where presumably someone could come to assist police, if a "two on one" situation developed.

[16] Cst. Teasdale was clear that it is unusual to handcuff a person who is not under arrest, especially if s/he is being co-operative, as Gregg was for the most part.

[17] At 8:29 a.m., Cst. Teasdale cautioned Gregg about the use to which any statements he made could be put. Gregg answered that he understood the caution. He specifically replied, "I wasn't driving. You seem like a good guy."

[18] At 8:30 a.m., Cst. Teasdale read to Gregg his rights to counsel. Again, Gregg confirmed he understood. Gregg repeated when asked if he wished to speak to a lawyer, "No. You seem like a good guy."

[19] At 8:34 a.m., Cst. Teasdale read to Gregg the approved instrument ("AI") demand. Gregg understood. Shortly thereafter, Cst. Teasdale began driving back to the Killaloe detachment having confirmed that a breathalyzer technician was available there to analyze samples of Gregg's breath.

[20] Cst. Teasdale took the most direct route to the police station – the same way he had come. Along the way, Gregg made sundry comments to the effect of:

• "You're a good guy."
• "I was in the passenger seat."
• "I wasn't driving."
• "I'm intoxicated, but I wasn't driving."
• "You found me in the passenger seat, right?"

[21] At 9:52 a.m., Cst. Teasdale arrived at the police station. Upon entry, he read to Gregg again his rights to counsel. Gregg asked, "Should I get one?" Cst. Teasdale then offered to put a call through to duty counsel. Gregg accepted. Cst. Teasdale confirmed that Gregg was offered his choice of counsel, but that the free legal advice option was what Gregg selected.

[22] At 9:56 a.m., Cst. Teasdale placed the call to duty counsel. While waiting for duty counsel to call back, Cst. Teasdale explained to Cst. Holbrook, the breathalyzer technician, his grounds for arrest and the making of the AI demand.

[23] Cst. Teasdale recalled that there was almost an immediate call back from duty counsel. Gregg was placed in a private booth to consult with a lawyer.

[24] At 10:02 a.m., the call had concluded and Gregg was delivered to Cst. Holbrook by Cst. Teasdale.

Cst. Lapierre

[25] Cst. Lapierre attended to the vehicle in the ditch after Cst. Teasdale left the scene with Gregg. He noticed that the driver of the vehicle had made unsuccessful attempts to get out of the ditch. There was gravel and dirt caked in the ruts of the tires. They had grinded down through the snow to ground level. The snow around the vehicle exhaust pipe had melted.

[26] Cst. Lapierre arrived on scene at approximately 9:00 a.m. A tow truck came at 9:44 a.m. to remove the vehicle. This officer noticed as well that road conditions were clear and dry.

[27] Cst. Lapierre, of course, never witnessed any actual attempts by the driver of the vehicle to extract himself from the ditch. Nor was Cst. Lapierre trained as an accident reconstructionist.

Cst. Holbrook

[28] At 8:26 a.m., Cst. Holbrook was made aware that Cst. Teasdale had a suspected impaired motorist in custody and was en route to the Killaloe detachment. Cst. Holbrook is a qualified technician so designated in September 2016.

[29] When Cst. Holbrook received the call for assistance, he returned to the police station at 8:43 a.m. He readied the AI, an Intoxilyzer 8000C.

[30] At 9:52 a.m., Cst. Holbrook took custody of Gregg from Cst. Teasdale. Cst. Holbrook participated in the discussions with Gregg about retaining counsel. He recalls Gregg asking him, "What would you do?"

[31] After some conversation, Gregg decided to speak to duty counsel. Cst. Teasdale went to place the call.

[32] While Cst. Teasdale was doing this, Cst. Holbrook continued his investigation of Gregg. Cst. Holbrook understood the obligations imposed on police when detainees such as Gregg expressed a desire to speak to a lawyer. Cst. Holbrook conceded that his failure to 'hold off' from questioning Gregg until he had an opportunity to speak to counsel was a "brain lapse." Cst. Holbrook asked Gregg about:

• his driving
• timings
• where he was
• where he was going
• his consumption of alcohol
• his health, and
• the amount of sleep he had had.

[33] When Gregg returned to Cst. Holbrook's custody, after he had spoken to duty counsel, he asked the officer to throw his earlier recorded responses in the garbage. Gregg wanted to start over with a fresh piece of paper. Cst. Holbrook instead put a line through the answers Gregg provided to the questions asked prior to giving Gregg the opportunity to speak to a lawyer.

[34] Cst. Holbrook then proceeded with the first breath test. Gregg provided this sample at 10:07 a.m. Cst. Holbrook, using the Intoxilyzer 8000C, analyzed Gregg's blood alcohol concentration at the aforementioned time to be 191 milligrams of alcohol in 100 millilitres of blood. Gregg's second sample of breath taken at 10:30 a.m., when analyzed, rendered a blood alcohol concentration of 186 milligrams of alcohol in 100 millilitres of blood.

The Loss of the 'Evidentiary Assist'

[35] The time at which Cst. Teasdale last observed Gregg to exercise what were arguably acts of 'care and control' over a motor vehicle was shortly after 8:03 a.m. The first breath sample from Gregg was obtained at 10:07 a.m. Since the first breath sample was taken greater than two hours after the time when the offence was alleged to have been committed (ie. 8:03 a.m.), the Crown lost the benefit of the 'presumption of identity', under s. 258(1)(c)(ii) of the Code – namely that the accused's blood alcohol concentration ("BAC") as determined by the AI at the time of the breath testing was the same as when the offence was allegedly committed. Accordingly, the Crown was required to obtain the Letter to extrapolate back to what Gregg's BAC would have been at the time of the alleged offence through an expert's opinion.

Issues

[36] The arguments made by Crown and defence counsel at trial raise the following issues:

1. Did Cst. Teasdale breach Gregg's right to counsel under s. 10 of the Charter by not providing them when the officer began his investigative detention of Gregg?

2. Did Cst. Teasdale breach Gregg's right not to be arbitrarily detained under s. 9 of the Charter by handcuffing Gregg before he obtained grounds for arrest once the "Fail" result was displayed by the ASD?

3. Did Cst. Teasdale breach Gregg's right to be free from unreasonable search and seizure under s. 8 of the Charter by having Gregg handcuffed while he provided his sample of breath into the ASD? (ie. the search for and seizure of Gregg's breath sample was conducted in an unreasonable manner).

4. Assuming there were any breaches of Gregg's Charter rights, should the admission of the analysis of the breath tests and the Letter be excluded from the evidence at trial pursuant to subsection 24(2) of the Charter?

5. Has the Crown proven beyond a reasonable doubt that Gregg was in care or control of a motor vehicle with a BAC in excess of the legal limit, and more specifically:

   a) have the facts which give rise to the opinion set out in the Letter been proven; and

   b) if not, am I permitted, as the trier of fact, to 'do the math' myself by taking into account the expert evidence as to the rate of elimination of alcohol from the human body?

[37] During submissions, defence counsel abandoned any argument that Gregg's s.10(a) Charter right to be informed promptly of the reason for his detention had been violated.

Alleged Breach of the Right to Counsel

[38] On the day in question, when Cst. Teasdale arrived on scene at 8:03 a.m., he found a vehicle in the ditch. Its engine was running. The radio was on. The officer observed visible track marks still on the highway indicating its path of travel into the ditch.

[39] Inside the vehicle, Cst. Teasdale found Gregg in the passenger seat, apparently asleep. No foot prints were seen outside the vehicle's perimeter. Although no overt acts of care or control by Gregg were observed by Cst. Teasdale on scene, the circumstantial evidence pointed to Gregg having driven the vehicle into the ditch at some earlier point in time.

[40] When Cst. Teasdale roused Gregg and had him exit the vehicle, he made observation of Gregg's physical condition to justify the making of an ASD demand. They included:

• slurred speech
• glossy eyes
• odour of alcohol on breath.

[41] Since Thomsen, the law has been clear that the s.10(b) Charter rights of a detained motorist are suspended while the investigating officer assesses whether reasonable grounds exist to suspect that the motorist has alcohol in his or her body.

[42] Later in the investigation, when Cst. Holbrook failed to hold off from eliciting evidence from Gregg until he had an opportunity to speak with a lawyer, this failure was a violation of Gregg's s.10(b) Charter right. However, the Crown led no evidence from Cst. Holbrook as to, for example, temporal parameters for Gregg's consumption of alcohol prior to his driving. There is thus no evidence to consider for exclusion as a result.

Alleged Breach of the Right Not to be Arbitrarily Detained

[43] Defence counsel pointed me to the case of R. v. Romaniuk [2017] O.J. No. 1735 in support of the proposition that Gregg had been arbitrarily detained. Romaniuk however was a very different case on its facts than this one. The arresting officer testified that it was his normal practice in an investigation to handcuff any person that had just come from a bar and who had been in an accident. This evidence was elicited in the context of the procedures the officer followed before administering an ASD test.

[44] By contrast, Cst. Teasdale testified that this was that first time that he had handcuffed a suspected impaired motorist before conducting the ASD test. Cst. Teasdale did so when investigating Gregg because the officer:

• was concerned Gregg may attempt to flee,
• Gregg had already turned away from him twice,
• Gregg was generally dismissive of the police investigation,
• Gregg had his hands in his pockets at points, and
• there was a possibility Gregg may have something in his pocket which jeopardized officer safety.

[45] For the above listed reasons, I find that Cst. Teasdale's detention of Gregg under the circumstances was not arbitrary. Nor was Cst. Teasdale's failure at that point to provide rights to counsel to Gregg a violation of s.10(b) of the Charter. Those rights remained validly suspended until the ASD result was obtained some minutes later. At 8:20 a.m. Gregg was handcuffed at the roadside. The ASD was readied and Gregg failed the test at 8:23 a.m. At 8:29 a.m., Gregg was cautioned. At 8:30 a.m. he was read his rights to counsel.

[46] All of this occurred in a remote area where back up for the officer may have taken considerable time to arrive, should Cst. Teasdale need it. Additionally, the officer would have been required to make police radio calls to locate a qualified technician to conduct further breath testing of Gregg using an AI.

[47] Under the circumstances, the delay in providing rights to counsel to Gregg were not unexplained. Cst. Teasdale did not breach Gregg's right to counsel.

[48] Cst. Holbrook did breach Gregg's s. 10(b) right but the breach did not result in the acquisition of any evidence from Gregg as a result. The breach had no impact on Gregg's Charter protected interests.

[49] Gregg provided samples of his breath for Cst. Holbrook, but this was after Gregg spoke to duty counsel. No evidence in the form of a statement from the accused or participation in physical co-ordination testing was adduced by the Crown at trial.

Alleged Breach of the Right to be Free from Unreasonable Search and Seizure

[50] As previously mentioned, Gregg was handcuffed for a very brief period of time prior to actual arrest. The shackles were applied at 8:20 a.m. approximately. Gregg failed the ASD test at 8:23 a.m. Roughly three minutes elapsed.

[51] The seizure of the evidence (ie. the provision of the breath sample into the ASD) was not obtained in an unreasonable manner. No complaint was ever made by Gregg that he was in any discomfort. Indeed, on three occasions, Gregg told Cst. Teasdale that he (Gregg) thought the officer was a "good guy".

[52] Accordingly, I find that there was no breach of Gregg's s.8 Charter right.

Exclusion of the Breath Test Analyses and the Letter

[53] Having found no violations of Gregg's Charter rights, there is no basis for exclusion of any evidence under subsection 24(2) of the Charter.

Has the Crown Proven Beyond a Reasonable Doubt that Gregg had the Care or Control of a Motor Vehicle when his BAC Exceeded the Legal Limit

[54] As in every criminal case, the Crown must prove beyond a reasonable doubt all elements of the offence with which an accused has been charged. Typically, the Crown can avail itself of the 'presumption of identity' in s.258(1)(c) of the Code, if the first breath sample is provided by the accused directly into the AI within two hours of the alleged offence.

[55] If I accept that Gregg was in care or control of a motor vehicle when Cst. Teasdale's arrived on scene at 8:03 a.m., it is clear Gregg was ordered out of the vehicle by the officer at some point shortly thereafter. Cst. Teasdale did not pinpoint an actual time when this occurred after 8:03 a.m. Nor did Cst. Teasdale witness any overt acts of care or control performed by Gregg after the officer arrived on the scene. The engine was running. The radio was on. However, Gregg was not in the driver's seat. Gregg was in the front passenger seat apparently asleep according to Cst. Teasdale. No footprints were observed in the snow outside the perimeter of the vehicle in the ditch. Circumstantially, I can only infer that Gregg drove the vehicle into the ditch at some earlier point in time, then moved over to the passenger seat when he concluded he could not extract himself.

[56] With the loss of the evidentiary assist which s.258(1)(c) of the Code provides, the Crown was forced to obtain the Letter to attempt to establish what Gregg's BAC was over the course of the earlier period of time when the car entered the ditch up until Cst. Teasdale's arrival on scene.

Have the Factual Assumptions Giving Rise to the Opinion as set out in the Letter Been Proven?

[57] In order for the Crown to be able to rely on an expert opinion, the factual underpinnings for it must be proved by admissible evidence.

[58] The primary factual assumption made by Palmentier, the Forensic Scientist (Toxicology) who provided the opinion in the Letter was that Gregg was involved in an incident at or between 2:00 a.m. and 6:30 a.m. When Cst. Teasdale spoke to Gregg in attempting to establish his grounds for making an ASD demand, he asked Gregg what time he had had his last drink. Gregg told the officer 2:00 a.m. Although that evidence is admissible for the purpose of examining the formation of grounds by a peace officer to make the ASD demand, it is not admissible for the purpose of incriminating the accused in respect of the offence(s) with which s/he may ultimately be charged. The Crown has thus not proven the commencement point for what Gregg's BAC range must have been at 2:00 a.m. on the night in question.

[59] The only reference in the evidence to 6:30 a.m. is the approximate time at which the Bancroft OPP communicated to the Killaloe OPP that there was a report of a vehicle in the ditch. For narrative purposes, the evidence was admitted to explain why Cst. Teasdale headed off to the area of Highway 28 and Little Ireland Road to investigate a vehicle in the ditch. However, it is not admissible evidence that it was Gregg's vehicle spotted in the ditch at 6:30 a.m. Further, there was no convincing evidence led by the Crown to suggest that Gregg's vehicle was the same vehicle earlier reported to police at 6:30 a.m. by some passerby. Cst. Teasdale merely knew of the presence of a vehicle in the ditch. He did not know when it entered the ditch. He did not have a licence plate number for it. Nor did he have a make or model of the vehicle.

[60] The end point of 6:30 a.m. for the BAC range of Palmentier's opinion set out in the Letter has thus not been proven by admissible evidence. It is double hearsay by the time Cst. Teasdale testifies that the call to police was placed at 6:30 a.m.

[61] In sum, as trier of fact, I have no admissible evidence to establish when Gregg drove his vehicle into the ditch. I have direct evidence from Cst. Teasdale that he arrived on scene at 8:03 a.m. Gregg was arguably still in care or control of his motor vehicle at that point. What is lacking is any evidence to bridge the gap and inform me as to Gregg's BAC at 8:03 a.m. or very shortly thereafter, when he was awoken by Cst. Teasdale and ordered to exit.

[62] The first AI reading was taken at 10:07 a.m. – outside the two hour limit prescribed by s.258(1)(c)(ii) of the Code. The Crown lost consequently the benefit of the 'presumption of identity'. No evidence has been proffered by the Crown to assist me in knowing what Gregg's BAC was at 8:03 a.m.

[63] With the Crown having failed to prove the underlying factual assumptions for Palmentier's opinion set out in the Letter, I simply do not know what Gregg's BAC was at the relevant time when Cst. Teasdale first saw Gregg in the vehicle. However, the Crown urges upon me the application of basic math and common sense to infer what Gregg's BAC must have been at 8:03 a.m. or thereabouts.

[64] I will next turn to that issue.

Doing the Math and Taking into Account the Elimination Rate of Alcohol from the Human Body

[65] Due to the Letter, I know that based on AI readings of 191 and 186 milligrams of alcohol in 100 millilitres of blood produced by Gregg at 10:07 a.m. and 10:30 a.m. respectively, his BAC between 2:00 a.m. and 6:30 a.m. was somewhere between 200 and 350 milligrams of alcohol in 100 millilitres of blood according to Palmentier's opinion. This projected range is dependent on:

1. A rate of elimination of alcohol from the blood ranging from 10 to 20 mgs/100 mls per hour.

2. Allowance for a BAC plateau of up to two hours.

3. No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident.

4. No consumption of alcoholic beverages after the incident and before the breath tests.

[66] The Crown thus argues that I can use the evidence in 1) above to do my own calculations and to infer that Gregg's BAC could not have been less than 170 milligrams of alcohol per 100 millilitres of blood at approximately 8:03 a.m., when Cst. Teasdale arrived on scene. (i.e. If Gregg's lowest BAC was 200 at 6:30 a.m., then an hour and a half later, roughly at 8:03 a.m, it could only have reduced to 170, when one considers the maximum human rate of elimination of 20 mgs. of alcohol per 100 mls. of blood.)

[67] At first blush, the logic in this approach has some appeal. The inference I am asked to draw seems relatively straightforward. However, for many of the reasons set out by Schreck J. in R. v. Stennett [2016] O.J. No. 2599, I must reject the Crown's argument for doing the math myself.

[68] The facts in Stennett are analogous to our own. The first breath sample was taken outside the two hour limit depriving the Crown of the presumption in s.258(1)(c)(ii) of the Code. The Crown in that case as well urged Schreck J. ". . .to conduct [his] own retrograde extrapolation to determine [the accused's] BAC at that time". That "time" referred to is the time of the alleged offence.

[69] At paragraphs 14 to 16, Schreck J. reviewed the jurisprudence, much of it conflicting, where Courts have either been willing or unwilling to do the necessary math. His Honour summarized the case law as follows:

[14] Both counsel directed much of their submissions to the issue of whether it would be appropriate for me to take judicial notice of the rate at which human beings eliminate alcohol. There is authority suggesting that judicial notice can perhaps be taken of elimination rates: R. v. Paszczenko; R. v. Lima (2010), 2010 ONCA 615, 103 O.R. (3d) 424 (C.A.) at paras. 60-66. However, the issue does not arise in this case because I have evidence of elimination rates in the toxicologist's report and that evidence is properly admissible through her: R. v. Paszczenko, supra at para. 26.

[15] Although the toxicologist sets out the elimination rates, her other assumptions and her conclusions based on a time of driving, she does not set out the calculations she undertook to arrive at those conclusions. In other words, she did not show how she conducted the retrograde extrapolation. Nonetheless, the Crown has asked me to take judicial notice of the method she employed and to then do my own calculations based on it.

[16] Some Courts have been willing to perform such calculations: R. v. Kisten, [2015] O.J. No. 6918 (C.J.) at paras. 16-18; R. v. Bonifacio, [2013] O.J. No. 586 (C.J.) at para. 9; R. v. Palic, [2015] O.J. No. 6637 (C.J.) at paras. 29-30; R. v. Lessel, [2012] O.J. No. 6482 (C.J.); R. v. Rajeswaren (2003), 38 M.V.R. (4th) 140 (Ont. C.J.) at para. 30. Others have not: R. v. Yan, [2015] O.J. No. 4299 (C.J.) at para. 18; R. v. Rosien, [2011] O.J. No. 5411 (C.J.) at para. 31; R. v. Zorkin, [2014] O.J. No. 5364 (C.J.) at paras. 19-21; R. v. Cole, [2015] S.J. No. 566 (P.C.) at para. 47; Dennis v. British Columbia (Superintendent of Motor Vehicles) (2000), 2000 BCCA 653, 150 C.C.C. (3d) 544 (B.C.C.A.) at paras. 9-16. With respect to those who hold a contrary view, I place myself in the latter category. My reasons for doing so are based on the law respecting judicial notice and expert evidence, concerns about the reliability of my own calculations, principles of statutory construction and the proper role of an impartial tribunal.

[70] Firstly, I must point out that if I were to do as the Crown suggested in this case – that is – if I were to perform the retrograde extrapolation calculations myself, clearly, the defence would have no right to cross-examine upon and thereby challenge the correctness of my math. An inability to cross-examine on a crucial aspect of the evidence offends one of the very core principles of trial fairness. I am loath to abandon the passive role I must play in a judge alone trial. The parties are responsible for putting the evidence before me. I should not participate in its creation, or enhancement. The calculations required for retrograde extrapolation, as pointed out by Schreck J., ". . . should be left to experts."

[71] Secondly, it is a fundamental tenet of statutory construction that each word and phrase of the statute, in this case the Code, exists for a purpose. I agree with Schreck, J. that ". . Parliament must have intended that where the two-hour requirement is not met, the BAC at the time of driving must be proven by evidence other than the breath test results".

[72] Thirdly, if I were a judge of a superior court in Canada sitting with a jury, and if the charge were one of 'over 80 causing harm or death', I cannot fathom that the Crown would suggest that I instruct the jury on how to do the math required for a retrograde extrapolation. The Crown would instead call its own expert witness to assist the jury with understanding how the calculations are performed. That expert witness would be subject to cross-examination by the defence. The jury would not be expected to become 'makeshift' mathematicians. Sitting as a judge alone in this fairly routine 'over 80' case, nor should I be expected to adopt such a role.

Conclusion

[73] For the reasons I have articulated, I must find that the Crown has not proven Gregg's guilt that he was 'over 80' beyond a reasonable doubt. Accordingly, the charge against him shall be dismissed.

The Honourable Mr. Justice M. G. March

Footnotes

1. R. v. Thomsen, [1988] 1 S.C.R. 640

2. R. v. Romaniuk [2017] O.J. No. 1735, para. 18

3. R. v. Abbey, [1982] 2 S.C.R. 24; R v. Freed [2016] ONSC 3133 at para. 7

4. R. v. Orbanski; R. v. Elias 2005 SCC 37, [2005] 2 S.C.R. 3 at paras. 49 & 58

5. See Sullivan on the Construction of Statutes, 6th ed. (Markham: Lexis Nexis 2014) at p. 211: ". . .every word and provision found in a statute is supposed to have a meaning and a function. For this reason, courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless, pointless or redundant".