ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 134/12
DATE: 20130807
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
VANESSA CHATOOR
Appellant
S. Fericean, for the Crown
P. Lindsay, for the Appellant
HEARD: May 13, 2013
TROTTER J.
introduction
[1] Ms. Chatoor was found guilty of impaired driving (s. 253(1)(a) of the Criminal Code) after a trial before the Honourable Justice K. Caldwell of the Ontario Court of Justice. She was fined $1500 and was prohibited from driving for 15 months.
[2] The charge arose from a serious collision on Highway 401 in Toronto. Ms. Chatoor was driving her car in the left most lane at about 11:00 p.m. As she was passing the car driven by Scott Johnson, Ms. Chatoor’s car came across the dividing line between the two lanes and sideswiped Mr. Johnson’s car. The front of Ms. Chatoor’s car ended being hooked onto the top of the front of Mr. Johnson’s car. Mr. Johnson tried to steer both cars towards the left side of the highway. In the course of executing this manoeuvre, Ms. Chatoor’s car became detached, hit the guardrail and almost flipped over.
[3] Mr. Johnson testified that, just before Ms. Chatoor’s car approached, he considered changing lanes. However, he decided against doing so because he could see what turned out to be Ms. Chatoor’s car approaching rather quickly. Defence counsel at trial (not Mr. Lindsay) suggested that the trial judge could not rule out the possibility that Mr. Johnson had begun to change lanes and actually caused the collision. The trial judge rejected this possibility. After carefully considering Mr. Johnson’s evidence, including the fact that he failed to tell the police that he considered changing lanes, the trial judge found as a fact that it was Ms. Chatoor who changed lanes and caused the spectacular collision.
[4] When emergency personnel arrived, Ms. Chatoor was transported to hospital in an ambulance. She was not able to give breath samples until much later. The first viable samples produced readings of 79 mgs of alcohol in 100 ml of blood and then 69 mgs. Expert evidence estimated Ms. Chatoor’s blood-alcohol concentration would have been between 70 to 125 mgs/100 ml at the time of the collision. The trial judge, giving Ms. Chatoor the benefit of the doubt, proceeded on the assumption that her blood alcohol concentration was 70 mgs of alcohol in 100 ml of blood at the time. As discussed below, the trial judge heard expert evidence on the effects of alcohol consumption at these levels of concentration. Importantly, the police officers who dealt with Ms. Chatoor at the scene observed none of the typical indicia of impairment. However, the smell of alcohol was detected on her breath. Ms. Chatoor told one of the officers that she had “half a beer” and that it was consumed 45 minutes earlier.
[5] A partly consumed 375 ml bottle of vodka was found on the driver’s seat of Ms. Chatoor’s car. The bottle was in an L.C.B.O. paper bag, with the cap screwed on. Ms. Chatoor did not testify, so there was no direct evidence of bolus drinking. Nevertheless, it was an issue at trial. The trial judge rejected the possibility of bolus drinking.
[6] In reaching the conclusion that guilt had been proved beyond a reasonable doubt, the learned trial judge said the following:
If this case was based solely on evidence of the readings, I would find that the burden of proof was not met; if it was based solely upon the accident found as a fact by me to have been caused by Ms. Chatoor, I also would have found that the burden has not been met. It is all of the evidence regarding the readings, including the expert evidence as to the effect of such readings, assessed in conjunction with the accident caused by Ms. Chatoor which leads me to be convinced beyond a reasonable doubt that she is guilty of the impaired driving charge.
Ms. Chatoor challenges these findings.
ANALYSIS
(a) The Collision
[7] Attacking one of the main pegs in the trial judge’s reasoning, Mr. Lindsay argues that she erred in her evaluation of the nature of the accident in reaching the conclusion that Ms. Chatoor was impaired at the time. He submits that the trial judge focused too much on the dramatic consequences of the collision and did not properly focus on the nature of the driving itself.
[8] It was open to the trial judge to approach the evidence of the collision in the manner that she did. There was evidence of excessive speed on Ms. Chatoor’s part. Instead of merely bumping into Mr. Johnson’s car, Ms. Chatoor managed to get her own car lodged on the top of his car. The trial judge did not err in finding that this reflected serious driving conduct. The trial judge was fair in her analysis in concluding that the driving itself would not have been sufficient to establish guilt beyond a reasonable doubt.
(b) The Breathalyzer Readings and Expert Evidence
[9] Ms. Chatoor was charged only with impaired driving; she was not charged with driving “over 80.” Nevertheless, the breathalyzer readings were an important part of the Crown’s case. The accuracy of these readings was vigorously challenged at trial, as they are on appeal.
[10] Mr. Lindsay argues that the trial judge misapprehended the evidence concerning the readings. The first stems from the inelegant manner in which the breathalyzer technician described the readings in his evidence. During his evidence in-chief, he described the first reading as 79 mgs of alcohol in 100 ml of blood. When the trial judge asked the clarifying question “how much?”, the officer said “.079 mgs.” And for the second test, the officer said “.069 mgs.” In re-examination, the following exchange took place:
Question: So at 1:53, is that when she got a reading of 79…
Answer: Correct.
Question: …milligrams of alcohol in 100 millilitres of blood.
Answer: Yes.
Question: Okay and then the second good sample was at….
Answer: Two-twenty-two.
Question: Okay, and that was 69?
Answer: Yes.
[11] The trial judge proceeded on the basis that the readings were 79 and 69 mgs of alcohol in 100 ml of blood. She did not err in the manner in which she dealt with this evidence. The Crown’s re-examination merely corrected the officer’s evidence to conform to what everyone assumed he meant. It was clear to the parties, the trial judge and the expert witness that the breathalyzer technician was referring to 79 and 69 milligrams of alcohol in 100 ml of blood. Defence counsel at trial never suggested otherwise. These features make this case different from R. v. Nyman (1998), 1998 5983 (ON CA), 131 C.C.C. (3d) 124 (Ont. C.A.), in which a similar problem of expression with an officer’s evidence was not corrected.
[12] Mr. Lindsay also made much of the fact that this evidence was clarified through leading questions in re-examination. Evidence derived from leading questions is not necessarily inadmissible, though it may be assigned less weight, depending on the circumstances: see R. v. Rose (2001), 2001 24079 (ON CA), 153 C.C.C. (3d) 225 (Ont. C.A.), at p. 230. In this case, there was no objection to the leading questions. Nor was there an objection during final submissions about the manner in which Ms. Chatoor’s blood-alcohol concentration was described.
[13] Mr. Lindsay argues that the trial judge misinterpreted the expert evidence of Ms. Inger Bugyra, a toxicologist who testified for the Crown. As mentioned above, Ms. Bugyra estimated that, at the time she was driving, Ms. Chatoor’s blood-alcohol concentration would have been between 70 and 125 mgs of alcohol in 100 ml of blood. In her report prepared in advance of trial, Ms. Bugyra wrote that “impairment with respect to driving becomes significant at a BAC of 50 mg/100 ml and increases from then upward.” She also said that “an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range.” [emphasis added] In her evidence in-chief, Ms. Bugyra said:
With respect to driving, it is my opinion that at a blood/alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood or greater, a person could become impaired by alcohol with respect to driving. [emphasis added]
[14] This evidence was challenged in cross-examination during the following exchange:
Question: Right. And do you agree with me – again I paid close attention to your words – when you cited the studies about 50 milligrams, you said a person “could become impaired.” Those were your words, “could become impaired.” So shall I infer from that you must leave open the possibility that there are human beings on this planet whose ability to operate a motor vehicle would not be impaired if they had 70 milligrams of alcohol in 100 millilitres of blood at the time?
Answer: Well, given that not all individuals have been tested, I think it would be fair to say that you may not be able to rule out; however, it is highly likely that a person would be impaired at a blood/alcohol concentration of 70 milligrams of alcohol in 100 millilitres of blood, and that’s certainly what the research demonstrates.
Question: Right. So since we deal in proof beyond a reasonable doubt, Ms. Bugyra, do you not agree with me that even if you peg my client’s blood/alcohol concentration at 70 milligrams, you cannot, having not tested her, you cannot say with any certainty that her ability to operate the motor vehicle in question at 11:30 p.m. on the day in question was impaired by the consumption of alcohol. You cannot say that with 100 per cent certainty, correct?
Answer: No. However, it is highly likely.
[15] The trial judge dealt with this issue in the following way:
Next, I turn to the evidence of the toxicologist on the effects of alcohol on one’s ability to operate a motor vehicle. Ms. Bugyra testified that impairment in lab settings has been noted at as low as 15 milligrams of alcohol in 100 millilitres of blood. Further in her report she states, “It is my opinion that impairment with respect to driving becomes significant at a BAC of 50 milligrams of alcohol per 100 millilitres and increases from then onward.
In submissions, Mr. Liquornik [defence counsel] pointed out that Ms. Bugyra has reluctantly conceded that it is possible that there are people whose ability to operate a motor vehicle at 70 milligrams would not be impaired. I agree with his characterization that it was a reluctant concession and I find that such reluctance followed from the fact that I interpreted her concession to be restated as “anything is possible.”
[16] The trial judge did not err in the manner in which she dealt with this evidence. First, by way of observation, it was not helpful for defence counsel to ask the expert to couch her estimates within the framework of proof beyond a reasonable doubt. Of course, this is a legal concept that does not easily translate into scientific methodology. Moreover, the question conflated proof beyond a reasonable doubt with absolute (i.e., 100%) certainty, which are two different things.
[17] Nor did the trial judge err by not resolving the “would” versus “could” contrast between Ms. Bugyra’s report and trial evidence. She relied on the more general opinion that impairment becomes “significant” at 50 mgs. Moreover, the trial judge agreed with defence counsel at trial that the expert’s concession was “grudging” on this issue. Having watched and listened to the witness testify, it was open to the trial judge to characterize her evidence that not being impaired at 70 mgs was given in an “anything is possible” manner.
(c) Bolus Drinking
[18] Mr. Lindsay argues that the trial judge erred in the manner in which she dealt with the issue of bolus drinking. Even though Ms. Chatoor did not testify, this was a live issue at trial. Indeed, the Crown suggested that Ms. Chatoor was impaired because she had consumed alcohol from the bottle found in her car. Moreover, as the toxicologist testified, one standard drink could have thrown off her projections of Ms. Chatoor’s blood-alcohol concentration at the time of the collision.
[19] It is important to set out the precise reasoning of the trial judge on this issue. The trial judge was well aware of the governing authority on this issue and the common sense inference reasoning discussed in R. v. Grosse (1996), 1996 6643 (ON CA), 107 C.C.C. (3d) 97 (Ont. C.A.) and R. v. Paszczenko; R. v. Lima (2010), 100 M.V.R. (5th) 1 (Ont. C.A.). The trial judge said:
The presence of a half empty bottle in the car is a factor to be considered in assessing whether it has been established that here there was no bolus drinking in this case. In assessing this issue, the Court can draw the common sense inference that normal people do not consume large quantities of alcohol shortly before or while driving. The Court is not required to draw such an inference, however…
I am convinced beyond a reasonable doubt that there was no bolus drinking in this instance; however, I do not base this conclusion solely on the commonsense inference, though I do take into consideration the consumption of large quantities while driving does not fit normal behaviour. What I also consider in this case in reaching my conclusion is that, though a half empty bottle was found in this case, it was in a paper bag and, more importantly, had the cap screwed on. If the cap was missing, I may have reached a different conclusion, but I find that it defies all reason that in the brief period before the accident Ms. Chatoor would not only have drunk large quantities from the bottle, but would also have managed to screw the cap back on while operating her car. I find that little turns on the fact that the bottle was found on the front driver’s seat. I note that this discovery was made after a terrible crash and I infer from the circumstances that virtually everything that was loose within the car would have shifted position drastically.
[20] I agree that the trial judge erred in the manner in which she framed the bolus drinking issue. While “bolus drinking” cases usually involve the consumption of large quantities of alcohol, the consumption of smaller amounts may throw into question whether the driver of a vehicle actually had a blood alcohol concentration of under 80 mgs in 100 ml of blood at the time of driving. On the facts of this case, in order to have affected the factual foundation for the expert opinion, it would not have required the consumption of a large amount of alcohol on Ms. Chatoor’s part within the 15 minutes preceding the collision. As Bugyra agreed in her evidence, one standard drink would have been enough.
[21] In different circumstances, one might be able to look beyond this mischaracterization of the bolus drinking issue. After all, the trial judge was satisfied beyond a reasonable doubt that there was no consumption of any alcohol by Ms. Chatoor just before the collision. However, there were other problems with the manner in which this issue was addressed, especially in light of how the trial Crown argued its case.
[22] The trial judge speculated that the half bottle of vodka may have been in the driver’s seat because articles in the car would have been jostled and scattered around as a result of the collision. However, there was no evidence of where the bottle was originally placed in the vehicle. Indeed, the Crown at trial [not Ms. Fericean] placed great emphasis on the presence of alcohol in the driver’s seat. In making submissions on the cause of the accident, the trial Crown said: “…I think you can attribute it to the fact that you’ve got a driver who smells of alcohol and who’s got a half a bottle of vodka in the front seat of her car. What else can you attribute it to? It’s not an act of God, right?” Essentially, the trial Crown invited the trial judge to find that Ms. Chatoor caused the accident because of her access to alcohol while she was driving.
[23] Moreover, the trial judge proceeded on the assumption that the bolus drinking occurred while Ms. Chatoor was driving the vehicle. She focused on the improbability of Ms. Chatoor being able to unscrew the cap of the bottle while driving and then placing it back on the bottle. As Mr. Lindsay submits, this is not the only way in which bolus drinking could have occurred. As he pointed out, it does not matter where or how the bolus drinking occurred; all that matters is that some consumption occurred within 15 minutes of the collision.
[24] I accept Ms. Fericean’s submission that there was no direct evidence of drinking after the collision, nor was there any indication of “increased intoxication” following Ms. Chatoor’s arrest. There was no evidence that Ms. Chatoor exhibited any signs of impairment that night (apart from the smell of alcohol on her breath which, standing alone, is evidence of consumption, not impairment). But there was alcohol in the car. Indeed, it was found in the driver’s seat.[^1] And the trial Crown suggested that Ms. Chatoor may have tapped into this supply while driving. And once again, we are not talking about the consumption of copious amounts of alcohol. One drink would have been enough to have an effect on the expert opinion.
[25] In the circumstances, and with great respect to the learned and experienced trial judge, the appeal must be allowed on this basis. This evidence was key to the trial judge’s finding of guilt beyond a reasonable doubt. As the trial judge candidly noted in her judgment, neither the accident itself nor the breathalyzer readings standing alone were sufficient to establish proof of impairment beyond a reasonable doubt. It was a combination of the two. The finding of guilt rested on this fair but rather delicate foundation because there were no observable indicia of Ms. Chatoor’s impairment by the numerous people who dealt with her that evening. In reaching this conclusion, I do not suggest that the verdict was unreasonable. Had the bolus drinking evidence been handled differently, the conviction would have been sustainable. However, in the circumstances, there must be a new trial.
CONCLUSION
[26] For these reasons, the appeal is allowed, the conviction is set aside and a new trial is ordered.
TROTTER J.
Released: August 7, 2013
COURT FILE NO.: 134/12
DATE: 20130807
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
VANESSA CHATOOR
Appellant
REASONS FOR JUDGMENT
TROTTER J.
Released: August 7, 2013
[^1]: Compare the circumstances in R. v. Paszczenko; R. v. Lima, supra, in which Blair J.A. said at para. 38:
That common sense inference was available to the trial judge and the SCAJ in Mr. Lima's case, and particularly so in view of the following factors:
a) Mr. Lima was stopped while driving his vehicle in an unusual fashion;
b) He exhibited signs of driving while intoxicated at the time (smell of alcohol on his breath; red, bloodshot and glassy eyes; flushed face);
c) The trial judge found by inference from the arresting officer's evidence that there was no alcohol in Mr. Lima's car, and that he had no access to alcohol from the time of his arrest to the time of the breathalyzer tests;
d) There was no evidence that Mr. Lima had just come from an establishment serving alcoholic beverages; and
e) The trial judge found that there was no change in the indicia of alcohol consumption during the period between his arrest and the administration of the breathalyzer tests, thus rejecting the defence argument that increased signs of intoxication were evidence of bolus drinking.