R. v. Poitras, 2019 ONCJ 164

CITATION: R. v. Poitras, 2019 ONCJ 164

DATE : March 12, 2019

COURT FILE No: 17-1429

O N T A R I O C O U R T OF J U S T I C E

B E T W E E N :

HER MAJESTY THE QUEEN

-AND-

PATRICK POITRAS

Before Justice Michael G. March

Heard on May 31, 2018 and January 9, 2019

Reasons for Judgment released on March 12, 2019

Nathalie Castonguay….……………………………………………….Counsel for the Crown

James McGillivary…………………………………………………….Counsel for the Accused

March, M.G., J. :

Introduction:

1. Patrick Poitras (“Poitras”) is charged with operating a motor vehicle:

a) while his ability to do so was impaired by alcohol, or alternatively

b) while the concentration of alcohol in his blood exceeded 80 mgs of alcohol per 100 mls of blood.

2. The driving in question occurred on October 20, 2017.

Review of the Evidence:

3. This matter was investigated by Cst. Corriveau and Cst. Howat of the Upper Ottawa Valley OPP (“UOV OPP”).

Cst. Corriveau:

4. Prior to October 20, 2017, Cst. Corriveau had been a police officer for roughly 18 months.

5. At 8:06 p.m., Cst. Corriveau was headed to her UOV OPP detachment. She was driving westbound near the Nelson Street Pub in Pembroke. She “slammed”, she said, on her brakes due to a vehicle pulling out of the pub’s parking lot onto the roadway in front of her. She did not recall how far the vehicle was in front of her.

6. The vehicle, a white VW, stopped for a few seconds, but then proceeded westbound on Nelson Street. She followed the VW across the Muskrat River bridge where Nelson Street becomes Lake Street. She observed the VW go through an amber light along the way. Cst. Corriveau stopped in her vehicle when the light turned red.

7. The VW reached the intersection of Lake and Frank Nighbor Streets and went through a red light. Cst. Corriveau activated her emergency lights and pursued the VW. The VW continued along Lake Street and turned right eventually onto Pembroke Street West. Cst. Corriveau witnessed the VW “hit” the center line of the roadway twice as she followed behind.

8. The VW then proceeded through another red light at Pembroke Street West and Forced Road. A stationary vehicle at the intersection of Forced Road and Pembroke Street West had to wait before travelling onto Pembroke Street West on a green light in order to allow the VW to safely pass through the intersection.

9. With emergency lights activated, Cst. Corriveau followed the VW for approximately 150 metres before the VW stopped. It turned right onto Riverside Park. It stopped in the middle of the road six feet from the shoulder. According to Cst. Corriveau, it was now 8:14 p.m.

10. Cst. Corriveau approached the driver’s side of the VW. She explained the reason for her stop to her Information Centre.

11. Cst. Corriveau informed the VW driver of the reason for stopping his vehicle. She told him that she saw him go through three lights, one amber, two red, and that he had crossed the centre line of the roadway. She also pointed out that he had failed to stop for her immediately when she activated her emergency lights. When he did stop, it was in the middle of the road. She asked the driver if he had any alcohol to drink. The driver, later identified by her as Poitras, told her he had one beer. Cst. Corriveau could not smell alcohol coming from the breath of Poitras.

12. At 8:17 p.m., Cst. Corriveau read an approved screening device (“ASD”) demand to Poitras. He was the sole occupant of the VW. He understood the demand and accompanied Cst. Corriveau to her police vehicle.

13. As they proceeded to the police vehicle, Cst. Corriveau observed Poitras stumble into his vehicle. She testified he was unsteady on his feet as he walked, but he was in the process of handing over his driver’s licence. Outside, she could smell alcohol on his breath.

14. Upon arriving at Cst. Corriveau’s cruiser, she explained to Poitras the procedure for providing a sample of his breath. She asked when he had his last drink. He told her about 20 minutes ago.

15. In giving his breath sample, Poitras made five insufficient attempts before supplying one which was suitable for analysis. During those five attempts, Cst. Corriveau explained, the ASD registered what she described as a “blow interrupted” error message. Before his sixth attempt, Cst. Corriveau cautioned Poitras that she could arrest him for a refusal to provide a breath sample.

16. At 8:19 p.m., Poitras supplied a sample of his breath and it produced a ‘Fail” result on the ASD. Cst. Corriveau consequently arrested Poitras at 8:24 p.m. At 8:26 p.m., she conducted a search of Poitras and found nothing in relation to the offence. Between 8:28 and 8:30 p.m., she read a caution, rights to counsel and a demand that Poitras provide a further sample of his breath into an approved instrument (“AI”).

17. At 8:32 p.m., Poitras requested a second ASD be used for analyzing his breath. Cst. Corriveau had a second such device in her police vehicle. Poitras provided a sample into that device at 8:33 p.m.

18. Cst. Corriveau permitted Poitras three further attempts to supply a sample of his breath into that device. The ASD generated a “blow interrupted” error message on all three. At 8:39 p.m., Cst. Corriveau reminded Poitras he was still under arrest. At 8:47 p.m., she requested a tow truck and searched his vehicle finding nothing offence related. At 8:54 p.m., she departed the scene in order to bring Poitras to the police detachment to provide further samples of his breath. She arrived at the station at 9:01 p.m.

19. Having lodged Poitras in a holding cell, Cst. Corriveau attempted to contact duty counsel at 9:12 p.m. At 9:34 p.m., duty counsel called back. Poitras’ conversation with duty counsel ended at 9:41 p.m. He expressed his displeasure with the advice received from duty counsel to Cst. Corriveau.

20. Cst. Corriveau placed a second call to duty counsel at 9:43 p.m. A response from the duty counsel office came back at 9:50 p.m. Poitras was permitted to speak to duty counsel commencing at 9:52 p.m. This second conversation Poitras had with duty counsel ended at 10:02 p.m. According to Cst. Corriveau, Poitras was satisfied with the advice he received.

21. At 10:04 p.m., Cst. Corriveau brought Poitras into the breath room at the UOV OPP detachment. At 10:05 p.m., she turned Poitras over to a qualified technician (“QT”), Cst. Howat. Cst. Corriveau confirmed Poitras had no alcohol to drink between the time he was stopped and the time he was turned over to the QT. She also gave her grounds to the QT for arresting Poitras and demanding further samples of his breath.

22. At 11:01 p.m., the QT turned Poitras back over to Cst. Corriveau. She served Poitras with the “breath tech documents”. Cst. Corriveau testified that these documents consisted of the following:

• Breath Disclosure Release Record

• Certificate of Qualified Technician

• Alcohol Influence Report

• Results

23. This concluded the investigation in her mind.

24. Cst. Corriveau released Poitras on a Promise to Appear. She called Poitras’ mother to collect him from the police station.

25. Under cross-examination, Cst. Corriveau was clear that she served Poitras with a Certificate of a Qualified Technician and a Promise to Appear before releasing him from her custody.[^1]

26. Following Poitras’ failure of the ASD test and his subsequent arrest, Cst. Corriveau did not observe other signs of alcohol consumption. Specifically, she did not hear Poitras slur any of his words. The only example of unsteadiness was the momentary loss of balance she saw as he walked alongside his vehicle one foot away from it. Cst. Corriveau was clear that, without the ‘fail’ result on the ASD, she did not have the grounds to make an arrest for impaired operation of a motor vehicle. Nor did he develop any symptoms of alcohol consumption thereafter.

27. Cst. Corriveau did not make notations of timings in her duty book. She wrote some literally on the back of her hand. The exact time of stopping Poitras’ vehicle, she recorded, as 20:06. She agreed that she did not verify synchronization of the Apple watch she was wearing with the timepiece used by the QT, Cst. Howat, or the internal clock of the Intoxilyzer used by him for obtaining and analyzing samples of Poitras’ breath. She conceded that her Apple watch and the Intoxilyzer clock could be off by as much as five minutes.

28. When questioned about the red light at the intersection of Forced Road and Pembroke Street West, Cst. Corriveau agreed that the traffic light had just turned red when Poitras proceeded through it.

Cst. Howat:

29. At the time of testifying, Cst. Howat has been a police officer for 12 years. Since March 2014, he has been designated as a QT. He was so qualified on the date of the alleged offence - October 20, 2017.

30. At 20:22, he received a request for service as a QT. He was on general patrol when the call came in. He began “set up” of the AI at 20:48.

31. Upon obtaining grounds from Cst. Corriveau for making a breath demand under s.254(3) of the Code, Cst. Howat read a further breath demand to Poitras at the police station at 22:06. Cst. Howat noticed no indicia of impairment exhibited by Poitras while performing his duties as a QT.

32. Cst. Howat conducted quality assurance (i.e. calibration, diagnostic and self-test checks) on the AI, an Intoxilyzer 8000C. He ensured this AI was able to measure accurately the concentration of alcohol in Poitras’ blood. He satisfied himself that this AI was in proper working order.

33. At 22:08, the AI was ready to receive a sample of breath from Poitras. The first one Poitras supplied at 22:09 was insufficient for analysis. Cst. Howat explained to Poitras that he must make a tight seal with his lips around the mouthpiece and blow continuously.

34. Still at 22:09, Poitras provided his first suitable sample of breath. It registered 127 mgs of alcohol in 100 mls of blood when analyzed by the AI.

The Voir Dire

35. The statement taken by Cst. Howat from Poitras was the subject of a voir dire. The defence challenged the voluntariness of the answers given by Poitras to Cst. Howat when Poitras responded to the pre-printed questions on the Alcohol Influence Report the officer typically fills out in fulfilling his duties as a QT. Cst. Howat cautioned Poitras at 22:06—that is to say—the officer informed Poitras that he was charged with an ‘over 80’ offence, and that he did not have to say anything in answer to the charge. Cst. Howat confirmed as well that, to his knowledge, Cst. Corriveau had cautioned Poitras too at the time of his arrest.

36. Upon receiving the cautions given by both Csts. Corriveau and Howat, and in answer to Cst. Howat’s questions, Poitras acknowledged that he had been drinking alcohol. Specifically, he had one beer at the Nelson Street Pub. Poitras indicated that his one and only drink he began to imbibe at 7:30 p.m. He took 25 minutes to consume the beer. On a scale of 1 to 10, Poitras assessed himself initially to be a 1 (i.e. sober). A 10 would have reflected Poitras’ assessment of the most intoxicated he had ever been. Poitras later changed his self-assessment of his state of alcohol to 0 (i.e. more sober than sober).

37. Defence counsel ultimately deferred his right to cross-examine on the voir dire until he conducted his cross-examination at large. During cross-examination, defence counsel elicited that Poitras was drinking at the Nelson Street Pub. He was headed to Petawawa. He left around 7:38 p.m. Ultimately, the defence conceded the voluntariness of the answers Poitras gave to the questions put to him by Cst. Howat.

38. As earlier alluded to, Cst. Howat saw nothing in Poitras’ comportment to suggest his balance was off. To the contrary, Cst. Howat assessed it as “sure”. Nor did Cst. Howat detect any odour of alcohol from Poitras’ person. Cst. Howat did not hear Poitras slur any of his words. In sum, Cst. Howat assessed the effects of alcohol upon Poitras as “slight”.

39. Cst. Howat testified that Poitras gave his second sample of breath at 22:32. It registered 112. Later, while referring to his Certificate of Qualified Technician, Cst. Howat added that the breath analysis reading of 110 taken at 22:30 meant more particularly 110 mgs of alcohol in100 mls of blood. This second reading was a truncated one.

40. Cst. Howat elaborated on his opinion as to the effects of alcohol on Poitras by clarifying that it was informed by the grounds for making the breath demand made by Cst. Corriveau, and the breath readings generated by Poitras. Cst. Howat reiterated that he saw no signs of impairment himself shown by Poitras.

41. Cst. Howat indicated that his Certificate of Qualified Technician was served by Cst. Corriveau. He gave her a copy of it. Upon his examination of the Certificate, on the copy of it shown to him while testifying, it contained his signature dated October 20, 2017. The copy of the Certificate also appeared to have been acknowledged by Poitras. The pre-printed space for the signature of the accused on the form appeared to be signed by Poitras.

Dr. Joel Mayers:

42. The defence took no issue with the qualifications of the expert witness called by the Crown, Dr. Mayers, a toxicologist with the Centre of Forensic Sciences in Toronto. The UOV OPP sent a request to Dr. Mayers for a letter of opinion. Dr. Mayers provided such a letter dated December 8, 2017, and on consent, it was made Exhibit 1 on Poitras’ trial.

43. In order to arrive at the opinion he reached, Dr. Mayers examined the Intoxilyzer test record. Dr. Mayers reviewed it thoroughly. The results arising from the tests, he found, were accurate and reliable. They reflected Poitras’ BAC and the time the tests were performed. Dr. Mayers believed, based on his review of the record and the evidence given by Cst. Howat, that the approved instrument, the Intoxilyzer 8000C, was in proper working order.

44. The police asked Dr. Mayers to do a ‘read back’—a mechanism for extrapolating the results obtained at the time of testing to the time of the actual incident. The ‘read back’ is reliant upon two factors:

a) the target time range—in this case, 8:00 p.m. to 8:14 p.m., and

b) the readings obtained at the time of testing—in this case 120 mgs of alcohol truncated in 100 mls of blood at 10:09 p.m., and 110 mgs of alcohol truncated in 100 mls of blood at 10:32 p.m.

45. Dr. Mayers’ practice is to use the lower of the two truncated results as his starting point. He then takes into account the difference in the times, which for the targeted time range to the time of Poitras’ second test would be between 2 ¼ and 2 ½ hours. Dr. Mayers, based on this data, was able to project Poitras’ BAC as somewhere between 100 and 160 mgs of alcohol in 100 mls of blood.

46. The calculations are not completely certain. They are subject to assumptions, namely:

a) that the elimination rate of the tested individual falls between 10 and 20 mgs of alcohol in 100 mls of blood per hour, and

b) that the individual may have been at a plateau where his body may be absorbing alcohol at the same rate it was eliminating it.

47. Dr. Mayers explained that due to these two competing forces (absorption and elimination), it can appear as though no change in the BAC is occurring.

48. There are as well two ‘case specific’ assumptions:

a) that there was no consumption of alcohol shortly before the time of the incident (i.e. in the 15 minutes pre-incident), and

b) no post-incident consumption of alcohol.

49. Dr. Mayers went on to clarify that the range of projection is due to the inability to know the exact rate of elimination for Poitras. The majority of individuals fall within an elimination range of 10 to 20 mgs per hour of alcohol per 100 mls of blood. The lowest rate of elimination, 10 mgs of alcohol per 100 mls of blood per hour, Dr. Mayers added, is about as low as one can go, which produces the lowest result for the projection. Unless a person has substantial liver damage, he or she will not eliminate at a rate of less than 10 mgs of alcohol per 100 mls of blood per hour. It is, of course, possible to have a higher elimination rate.

50. Dr. Mayers also opined that an individual who has a BAC within the range projected for Poitras would be impaired in his ability to operate a motor vehicle. Generally, individuals with that magnitude of a BAC range would be impaired, for example, in their ability:

a) to judge distance and speed,

b) to gauge the placement of their vehicle in relation to others,

c) to utilize and assess information within their visual field, and

d) to divide their attention across variables, such as vehicles in their vicinity and side streets.

51. Dr. Mayers drew a distinction between reflex and choice reactions. A reflex reaction would be akin to pulling your finger away from a hot stove upon touching it. A choice reaction is one which requires the individual to process situational information, for example, whether to proceed through a traffic light that has just turned from green to amber. Factors to consider may include weather conditions, the speed at which one is travelling, the distance to the light, the distance a car following behind may be, etc. Alcohol slows the central nervous system’s ability to process all of these facets of information. Overall, an individual at the BAC range at which Poitras was projected to be will have a diminished ability to perform these tasks.

52. Under cross-examination, Dr. Mayers explained the 15 minute assumption that no alcohol was consumed pre-incident is not precise. As one moves past the 15 minutes, it becomes less reliable to take the entirety of the alcoholic beverage an individual consumed beforehand out of the equation. Dr. Mayers conceded that to suggest there would be absolutely no absorption of alcohol in that 15 minutes is a scientific fallacy. There will be some. However, since he does not know how much, he subtracts it all.

53. Dr. Mayers agreed that the higher the concentration of alcohol, the less it would take to reach a higher BAC.

54. Further, Dr. Mayers conceded that he had no knowledge of Poitras’ actual consumption pattern for the one beer he told Cst. Howat he had to drink. It would be important for Dr. Mayers to know that.

55. Dr. Mayer explained also that the Intoxilyzer 8000C will underestimate, by approximately 9 to 10% in most instances, the actual BAC of a test subject. However, he allows for the very rare set of individuals who the Intoxilyzer 8000C will overestimate blood/breath ratio by 10%.

56. Dr. Mayers went on to agree that he did not know the actual blood/breath ration for Poitras, because Dr. Mayers did not test him. It would thus be possible that Poitras could be one such rare individual for whom the AI overestimates his BAC.

57. Applying the known lower result for Poitras, 112 or 110 mgs of alcohol truncated in 100 mls of blood, one would deduct 11 mgs per 100mls, to allow for the possibility that Poitras’ BAC was overestimated, and in which case, Poitras would still be at approximately 100 mgs of alcohol per 100 mls of blood.

58. It would follow then that using the lower BAC reading, as Dr. Mayer did in projecting Poitras’ range, it would take less alcohol being absorbed beyond the 15 minutes to reduce the BAC below 80 mgs of alcohol per 100 mls of blood. Accordingly, it is important to know Poitras’ pattern of alcohol consumption and the actual concentration of alcohol per volume of the beverage Poitras drank—both of which were unknown variables in Dr. Mayers projection.

Issues:

59. The evidence raises the following issues:

a) Is the Crown entitled to rely on the presumption in s. 258(1)(c)(ii) of the Code—the presumption of identity—to allow the BAC readings obtained from Poitras at the time of testing to be deemed to be the same as at the time when he last operated his motor vehicle? (i.e. was the first sample taken within two hours of the vehicle last being operated by Poitras?)

b) If the Crown is not able to rely on the presumption in 258(1)(c)(ii) of the Code, is the Crown entitled to bridge the evidentiary gap with Dr. Mayers’ evidence regarding the projected BAC range for Poitras to the time when he last operated the motor vehicle?

c) Has the Crown proven one of the underlying assumptions for Dr. Mayers’ opinion – namely that Poitras did not engage in bolus drinking?

d) Has the Crown proven that Poitras operated a motor vehicle with a BAC in excess of 80 mg of alcohol per 100 ml of blood?

e) Has the Crown proven beyond a reasonable doubt that Poitras operated a motor vehicle while his ability to do so was impaired by alcohol?

The Law:

The Presumption of Identity

60. Section 258(1)(c)(ii) of the Code reads in part as follows:

“In any proceeding under s. 255(1) in respect of an offence committed under s. 253 or subsection 254(5) or in any proceeding under any of the subsections 255(2) to (3.2),

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if,

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed, and in the case of the first sample, not later than two hours after that time, with an interval of at least 15 minutes between the time when the sample was taken,

evidence of the results of the analyses so made is conclusive proof that the concentration in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things—that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 ml of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed;”

61. The presumption of identity, as this section of the Code has come to be known is an “evidentiary assist” for the Crown. The loss of the presumption does not prevent the Crown from proving the BAC of the accused at the time of the alleged offence by alternative means. The Crown can call the Intoxilyzer 8000C operator, the QT, to prove the results of the tests. Thereafter, the Crown can call expert toxicology evidence to extrapolate the test results back to the time of last operation of the vehicle. (see R. v. Prosper, 1994 CanLII 65 (SCC), [1994] S.C.J. No. 72 at para. 46).

Assumptions:

62. Typically, where the Crown must call expert evidence to provide a ‘read back’, four assumptions are made by the toxicologist, namely:

a) There was no consumption of large amounts of alcohol shortly prior to the incident (i.e. no bolus drinking);

b) There was no post-incident consumption of alcohol;

c) The alcohol in question was eliminating at a rate of between 10 to 20 mgs of alcohol per 100 mls of blood per hour, and

d) The allowance for a two hour plateau when the rate of absorption equates to the rate of elimination to ensure the lowest BAC is projected.

63. The Crown is not required to prove each assumption beyond a reasonable doubt. Rather, the trier of fact must assess the weight to be given to the opinion where there are shortcomings in the proof of the assumptions.

64. The opinion of the toxicologist remains admissible. (see R. v. Grosse, [1996] O.J. No. 1848 (C.A.)).

65. However, what the Crown must prove is the lack of bolus drinking and post-incident drinking of alcohol. Judges may take judicial notice of both the plateau and elimination rate (see R. v. Paszczanko, R. v. Lina, [2010] O.J. No. 4974 (C.A.)).

66. Triers of fact may make common sense inferences that people do not ingest large amounts of alcohol just prior to, or while driving. Bolus drinking is a relatively rare phenomenon. ‘No bolus drinking’ is largely a matter of common knowledge and common sense about how people behave.

67. The imposition of a practical evidentiary burden is placed on the accused, not to persuade or convince, 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 of bolus drinking in play. (see R. v. Paszczanko, R. v. Lima, [2010] O.J. No. 397 (C.A.) at paras. 28 to 29 and 32).

Impaired Driving:

68. In R. v. Stellato, [1993] O.J. No. 28, Labrosse J.A. speaking for a unanimous Court of Appeal for Ontario stated:

“In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.”

69. The Alberta Court of Appeal in R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 at paragraph 29, leave refused [1996] S.C.C.A. No. 115, interpreted and clarified the reasoning employed by the Court of Appeal for Ontario in R. v. Stellato, supra.

“The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused’s ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction. This is what the Supreme Court of Canada approved, not that a slight degree of impairment is to be equated to a slight degree of impairment of one’s ability to drive. That would preclude a trial judge in every case from making the crucial finding of whether the accused’s ability to drive was in fact impaired.”

70. I find the dicta of Marchand J. in R. v. Kewaquado, [2001] O.J. No. 6063, aff’d [2003] O.J. No. 2223 (C.A.) at paragraph 28, to be particularly instructive. His Honour wrote:

“So what are the elements that I need to address in order to make a finding that the accused’s ability to operate his motor vehicle was impaired? I must point out that to make such a finding I must consider whether his ability was impaired in the sense that he was having difficulty in performing the mechanical functions of steering, shifting gears or braking and other such things, and whether his ability to form the required judgment such as the ability to assess quickly and accurately such factors as the road conditions, volume of traffic and other mental assessment required in order drive safely. The question I must determine is whether the accused’s ability to operate his motor vehicle was impaired. I am aware that one’s ability to drive may be impaired even though I find no evidence of bad driving and I am also aware that conversely one may drive badly without being impaired. Again, I must consider such factors as manner of speed, smell of the breath, performance of physical tests, manner of walking, turning, sitting, rising, pupils of the eye, general physical experience and general conduct. These are some, but not all of the indicia of impairment and again the burden is on the Crown to satisfy me beyond a reasonable doubt that the accused’s drinking had impaired his ability to drive.”

Issue 1—Is the Crown entitled to the presumption in s. 258(1)(c)(ii) of the Code?

71. The short answer is no.

72. Cst. Corriveau stopped Poitras’ vehicle at 20:14. Cst. Howat took the first breath sample from Poitras at 22:09. However, Cst. Corriveau agreed under cross-examination that her watch was not synchronized with the AI’s clock. The two could have been off by five minutes.

73. To be entitled to the presumption in s. 258(1)(c)(ii), the Crown must prove beyond a reasonable doubt that the first sample was taken within two hours of the time Poitras’ vehicle was last operated. It has not.

Issue 2—Is the Crown entitled to bridge the evidentiary gap through the use of expert evidence?

74. The answer is definitely yes. Since Prosper or earlier, the Crown has been so entitled.

Issue 3—Has the Crown proven that Poitras did not engage in bolus drinking?

75. The Crown has.

76. The only admissible evidence addressed at trial concerning Poitras’ alcohol consumption was the answers he provided to the QT, Cst. Howat. Poitras told the officer he had one beer. He commenced drinking this beverage at 7:30 p.m. He estimated it took 25 minutes for him to consume it. Yet he stated that he left the pub around 7:38 p.m.

77. The inconsistency in Poitras’ evidence is apparent. If it took roughly 25 minutes to consume the beer, he would have left the pub at 7:55 p.m.

78. Cst. Corriveau first encounters Poitras’ vehicle at 8:06 p.m. Her evidence is far more reliable than Poitras’ regarding his time of departure from the pub.

79. Applying common sense to what Poitras testified was his level of alcohol consumption, it can hardly be construed as ‘bolus drinking’.

80. It is one beer—nothing else. Taking into account the lack of evidence on the concentration of alcohol in the beer, and the manner in which Poitras consumed it, I fail to see, in giving the most generous interpretation I can to his evidence, that Poitras engaged in bolus drinking at all.

81. Put another way, Poitras has not pointed to anything in the evidence to place the possibility of bolus drinking into play. It simply does not exist on a fair assessment of the totality of the evidence.

82. Essentially, the defence exhorts me as trier of fact to speculate wildly on:

a) the concentration of alcohol in the beer Poitras drank;

b) the manner in which he drank it, and

c) the absence of evidence regarding Poitras’ rate of elimination and his actual blood/breath ratio.

83. In utilizing common sense, and applying the law, I can do none of a) to c) above.

84. In R. v. Aroozoo [2018] O.N.C.J. 281, Bourque J. dealt with a series of hypotheticals put by defence counsel to a Crown expert, Ms. Chow, a toxicologist with the Centre of Forensic Sciences. Borrowing the reasoning employed by Tuck-Jackson J in R. v. Jordaan, 2014 ONCJ 787, Bourque J. astutely observed the shortcomings of such a defence argument at paras. 19 to 24 where he wrote:

“[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-alcohol 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 Mr. Jordaan does not fall within the parameters of any given assumption, then 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, Mr. Jordaan must point to evidence that is apt to convey a sense of reality to the defence that any given assumption underlying Ms. Chow’s opinion is inapplicable in the circumstances of his 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 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.”

85. Defence counsel provided me with the unreported decision of Legault J. in R. v. Weatherdon. At para. 8, Legault J. wrote:

“What predicates this opinion [the projected BAC range of the accused] is his [the toxicologist’s] opinion that the instrument was working properly. To satisfy himself of that fact he relied on the Intoxilizer test records and a certificate of analyst. Both documents were not filed into evidence at trial by the Crown...”

86. While it is true I ruled that neither the Intoxilyzer Test Record nor the Certificate of Analyst were admissible, it was not necessary for the Crown to make either document an exhibit at trial. The Crown had the oral evidence of the QT, Cst. Howat.

87. Cst. Howat testified that he conducted quality assurance checks (i.e. calibration, diagnostic and self-test) on the Intoxilyzer 8000C, the specific AI he used to analyze Poitras’ BAC on the night in question. By doing so, he ensured that the AI was able to accurately measure Poitras’ BAC. Cst. Howat thus satisfied himself that the AI was in proper working order.

88. On consent of the defence, Dr. Mayers listened to the evidence of Cst. Howat. Dr. Mayers also reviewed the Intoxilyzer Test Record generated for Poitras on Oct. 20, 2017. He confirmed that the AI used by Cst. Howat to measure Poitras’ BAC was in proper working order.

89. By contrast, in Weatherdon at paragraph 12, Legault J. observed:

“There is no evidence in my review of Constable Tremblay’s evidence as to what steps were taken with respect to preparing this instrument. There was no basis elicited from him for his opinion that the instrument was working properly. The alcohol test record would demonstrate the results of these procedures. It would allow the court to evaluate the basis for both Mr. Palmentier’s and the breathalizer technician’s opinion that the instrument was working properly.”

90. In essence, Legault J. found that the Crown had failed to prove the facts underlying the conclusion made by the QT in that case, Cst. Tremblay, that the AI was in proper working order. In our case, we have Cst. Howat’s uncontradicted evidence that he performed the quality assurance checks to ensure the AI was in proper working order.

91. Dr. Mayers further confirmed in his evidence that it was his opinion that the AI produced reliable test results for Poitras’ BAC based on what he heard Cst. Howat say in his testimony about what he did to ready the AI. Dr. Mayers also reviewed the Intoxilyzer self-generated documents himself. As a result, Weatherdon is clearly distinguishable.

Issue 4—Has the Crown proven that Poitras operated a motor vehicle with a BAC in excess of 80 mgs of alcohol in 100 mls of blood?

92. The Crown has done so.

93. Dr. Mayers’ evidence, based on projections he was qualified to make, and using the actual test results for Poitras whose breath samples were analyzed by an AI in proper working order, placed Poitras’ BAC at between 100 and 110 mgs of alcohol in 100 mls of blood.

94. Consequently, I must find Poitras guilty of the ‘over 80’ offence contrary to s. 253(1)(b) of the Code.

Issue 5—Has the Crown proven beyond a reasonable doubt that Poitras operated a motor vehicle while his ability to do so was impaired by alcohol?

95. The Crown has not.

96. The classic signs of impairment, as listed by Labrosse J.A. in Stellato, are:

• erratic driving

• strong odour of alcoholic beverage on breath

• glassy and bloodshot eyes

• slurred speech

• unsteadiness on one’s feet.

97. Cst. Corriveau certainly observed erratic driving. Poitras pulled out suddenly in front of her. She was forced to apply the brakes in her vehicle abruptly. He then stopped momentarily. He drove through an amber light and two red lights.

98. However, Cst. Corriveau was hardly convinced from the outset that Poitras’ ability to operate his motor vehicle was impaired by alcohol. She followed Poitras for a reason. She wanted to gather evidence, if she could, of more erratic driving. Even when she obtained it, she did not immediately arrest Poitras. She employed the ASD to confirm her suspicion that he was impaired. Her belief that Poitras was impaired by alcohol was not enhanced beyond suspicion with the detection of alcohol on his breath, or the fleeting instance of unsteadiness, when he lost his balance next to his car. Cst. Corriveau did not feel she could forego ASD testing as a result. She resorted to use of the ASD.

99. There can be little doubt that Cst. Corriveau would not have arrested Poitras, but for his failure of the ASD test, when ultimately he provided a suitable sample for analysis. Having obtained the ‘fail’ result, Cst. Corriveau noted no further indicia of impairment by alcohol, while Poitras was in her custody.

100. Furthermore, Cst. Howat saw nothing in Poitras’ comportment to suggest impairment of Poitras’ physical abilities by alcohol consumption, when he would have been, as a QT, alive to the value of such evidence, had he observed it.

101. On an objective assessment of the totality of the evidence, setting aside the evidence of Poitras’ BAC and Dr. Mayers’ opinion, which is so critically tied to knowledge of Poitras’ actual BAC at the time he was tested, I cannot find that I have been persuaded beyond a reasonable doubt that Poitras’ ability to operate a motor vehicle was impaired by alcohol. I must find Poitras ‘not guilty’ of an offence contrary to s. 253(1)(a) of the Code.

Conclusion:

101. Poitras is guilty of driving ‘over 80’ contrary to s. 253(1)(b) of the Code.

DATED: March 12, 2019

The Honourable Mr. Justice M. March

[^1]: On a ruling during the second day of trial—January 9, 2019—I admitted into evidence the Certificate of Qualified Technician over the objection of defence counsel. I found that the Crown had proven compliance with s.258(2) of the Code on a balance of probabilities.