Ontario Court of Justice

Date: 2018-04-23

Court File No.: Central East - Newmarket 4911-998-17-02323

Between:

Her Majesty the Queen

— AND —

Dennis Aroozoo

Before: Justice P.N. Bourque

Counsel:

• B. Juriansz for the Crown
• P. Lindsay for the Defendant

Heard: In Writing

Released: April 23, 2018

Reasons for Judgment

Overview

[1] The defendant was speeding past a speed enforcement officer of the York Regional Police in Markham, Ontario. After stopping, the officer detected an odour of alcohol and after an ASD test, and a failure, the defendant was arrested and taken to the station for breath tests.

[2] The defendant initially asserted that the officer infringed the defendant's s. 10(b) Charter rights with regard to language issues and defaulted the defendant to duty counsel before making sufficient efforts to locate the defendant's counsel of choice. At the close of the Crown's case, the defendant abandoned all of these Charter challenges.

[3] The defendant does assert that with regard to the evidence of the certificate of analysis and the expert evidence of the Crown toxicologist, I should be left with a reasonable doubt that the amount of alcohol in the blood of the defendant at the time of the last driving, exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[4] The defendant was stopped by a peace officer at 1:20 a.m. on March 23, 2017. He eventually provided two samples of blood; at 4:04 a.m. (96 mgs of alcohol) and 4:29 a.m. (95 mgs of alcohol).

Betty Chow

[5] …is a toxicologist from the Centre of Forensic Sciences. She gave expert evidence concerning the blood-alcohol readings of the defendant at the last time of driving, namely at 1:20 a.m. She was of the opinion that based upon the certificate of analysis, the blood alcohol reading of the defendant was between 95 and 145 milligrams of alcohol in 100 millilitres of blood.

[6] The witness stated that there were four separate presumptions being made which, in her opinion, would lead to an understatement of the blood-alcohol limit namely:

(i) The use of a lower rate of elimination (in this case 10 per cent);

(ii) Allowing a plateau of 2 hours;

(iii) Use of the lower of the two results taken to make the calculations;

(iv) Truncate the intoxilyzer results before doing her calculations.

[7] The witness was extensively cross-examined about various scenarios, which could have the effect of putting her calculation into doubt.

[8] The witness stated that the intoxilyzer converts breath readings to a blood alcohol reading of a ratio of 2100 to one. The witness stated that the literature revealed that the average ratio was 2300 to 2500:1. That meant that the use of a lower ratio understated the readings. The witness admitted that there was literature that put ranges of 1700 to 3000:1 as a possibility. She was asked about this and could not disagree with it. She stated that it could be a "reasonable" scenario, but such a scenario could only be determined by testing the individual. The witness agreed that if the ratio was 1700:1, then the readings of the defendant would be between 80 and 130 milligrams of alcohol in 100 millilitres of blood. In re-examination, the witness stated that in an Australian study, the number of persons (in a sample of over 10,000 people) who would be subject to overestimation was under 1 per cent.

[9] The defence put to the witness a hypothetical scenario where at the end of a social drinking situation, a person's blood-alcohol level would rise and it could be up by 10 per cent by the time of last driving and up a further 20 per cent when they were eventually tested. The witness stated that her numbers could not simply be changed as what was proposed to her was a "last drink scenario", and a new calculation would have to be made and the plateau would not apply. The witness stated that even with that scenario, the person would still have a blood-alcohol concentration of 95.

[10] She agreed that the calibration of the intoxilyzer accepts a variation of less or more than 10 per cent for the standard alcohol solution.

[11] The witness was asked about the rate of alcohol elimination. In her opinion, she used a range of alcohol elimination of between 10 and 20 per cent and indicated that the average in the literature is about 17 per cent. She believed that the lowest she had seen in the literature was 8 per cent, which would not change the blood-alcohol concentration in this case. The witness was shown a study where there was an instance of a subject with an elimination rate of 5.9 per cent. She did not dispute that there was such a subject but believed it was "incredibly low". She stated that people who fell below this elimination rate had issues with their livers. She stated that very rarely do people fall below a 10 per cent elimination rate.

[12] With regard to the issue of plateau, the witness indicated that the 2 hour plateau time was very large and resulted in a lower reading. She agreed that an even higher plateau would result in a lower reading. She stated that even if the plateau was about 2.5 hours, it would still give a reading of 90.

[13] The witness was shown a further hypothetical and stated that while a climb from a reading of 70 to 90 is possible after finishing drinking in a social context, it was unlikely.

Analysis

[14] The defendant argues that based upon all of the evidence of the toxicologist, that there has been sufficient doubt raised about the contention that the defendant had a blood-alcohol reading at 1:20 a.m. of over 80 milligrams of alcohol in 100 millilitres of blood, so as to leave the trier of fact with a reasonable doubt.

[15] The defendant argued that the most serious difficulty with the expert's evidence is that her final statement of the blood-alcohol concentration level at the time of driving is based on a further assumption, namely, that "all of these assumptions are set in place to assume that this individual is on the declining phase of the blood-alcohol concentration curve, meaning that his blood-alcohol concentration was declining at the time of…the breath tests".

[16] The defendant suggested that there may be a scenario where the blood-alcohol readings of a person can be increasing for up to 138 minutes. The expert did not disagree with this possibility. What was not put to the expert was the submission by defence that if you add the figure of 138 minutes to a 120-minute plateau, then you are over the times in this case, and therefore there is a possibility that the defendant was in plateau in this specific case.

[17] The defendant sought to bring this assumption into doubt by suggesting a possible set of scenarios which could lead to someone being at a plateau or even increasing. For example, the expert indicated that the Intoxilyzer 8000C assumes a blood to breath ratio of 2100. The witness stated that the "average ratio of a human being is between 2300 and 2500. The result of using 2100 as an average is to "understate" the eventual blood alcohol reading. The expert agreed that in the literature, there have been examples of people (actually tested) who are as low as 1700, and as high as 3000. The witness although pressed to say that these scenarios are "reasonable possible", eventually said only that they are "possible". (Page 17, l 28). Again she agreed that since her client was not specifically tested for this issue, then she could not rule it out.

[18] The witness was asked to do a calculation based upon a scenario of a 1700 conversion rate. She arrived at a spread of between 80 to 130 mgs of alcohol in 100 millilitres of blood. Clearly, a reading of 80 would not constitute an offence.

[19] What is lacking here is some "case specific" evidence which would bring these scientific assumptions into doubt. The suggestion that there could exist a hypothetical situation which may bring the readings into doubt does not in my opinion satisfy this burden. It does not reverse the burden of proof, but it does require some evidence that in this specific case, the standard scientific assumptions may not be applicable.

[20] I am supported in this belief by the decision of Tuck-Jackson in R. v. Jordaan, 2014 ONCJ 787. That case bears several similarities to our case in that the projected readings (100) were at the low area of criminality, and the evidence of blood-alcohols reading at the time of the offence was given by a toxicologist report, and the viva voce evidence of a toxicologist. As I review the judgment, not all of the scenarios discussed in our case were put to the toxicologist in that case. I also note that while there was a discussion of persons falling outside the "averages" used as assumptions, there was no specific evidence led as to the whether this defendant fell outside any of these averages.

[21] The defendant in our case argues that I cannot use the Jordaan case here as the evidence of some of the assumptions is different. While that may be so, I believe that the general proposition remains, and that is:

If the defence can point to any evidence that the defendant does not fall within the parameters of any given assumption, than and only then, does the Crown bear a burden to prove the contrary. To borrow the language of Watt J.A. from his Manual of Criminal Evidence, the defendant must point to evidence that is apt to convey a sense of reality to the defence that any given assumption underlying the expert's opinion is inapplicable in the circumstances of the case. Once this had occurred, the legal burden is on the Crown to negate the applicability of the defence.[1]

[22] The Jordaan decision was approved on appeal, and in dealing specifically with the assumptions of the toxicologist, the court stated:

The trial judge found that, as with assumptions about plateau and elimination, the assumption regarding breath ratio is a matter of science upon which the expert is entitled to rely. There was no air of reality to the suggestion that the Appellant fell outside the parameters of the assumption.[2]

[23] As a further matter, the defendant has sought to put doubt into the assertion that the opinion on the expert is based upon the scientific foundation that the minimum absorption rate is 10 per cent and that the plateau is 2 hours. While she admitted that there were instances where these amounts have differed, she was of the opinion that it is very rare. In this regard, that is also the direction from the Ontario Court of Appeal in R. v. Paszczenko, 2010 ONCA 615 which states:

[26] An expert is entitled to refer to sources within his or her field to explain and support the conclusions drawn. I conclude, therefore, that in the absence of a challenge to the expert, assumptions 3 (the elimination rate) and 4 (the plateau) need not be proved by case-specific evidence led at trial to support them, other than the expert's toxicological report filed pursuant to s. 657.3 of the Code.

[24] The defence argues that in cross-examination, he has brought these assumptions into doubt. I disagree. The toxicologist admitted that there exists in the literature exceptions to the elimination rate and the amount of plateau. She was, however, firm in her belief that the literature supported that in the preponderance of cases, these assumptions understate the blood-alcohol level. That the toxicologist could not state it definitively was due to her scientific rigour that is defined by the proposition that only by testing the individual can this be known in the instant case with absolute certainty.

Conclusion

[25] Based upon all of the above, I find that I am not left with a reasonable doubt as to whether the defendant had a blood-alcohol reading at 1:20 a.m. on March 23, 2017 in excess of 80 milligrams of alcohol in 100 millilitres of blood. I find the defendant guilty of the charge.

Released: April 23, 2018

Signed: Justice P.N. Bourque

[1] Jordaan, at para. 44.

[2] 2015 ONSC 6716, at para. 40.