GUELPH COURT FILE NO.: Guelph 12-107-00
DATE: 20140225
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
JANINE HODGINS, for the respondent/Crown
Respondent
- and -
RICHARD SNIDER
STEPHEN MENZIES, for the Appellant
Appellant
[On appeal from the judgment of the Honourable G.F. Hearn, dated April 11, 2012]
DURNO, J.
[1] The appellant provided Intoxilyzer breath samples starting one hour and twenty minutes after he was stopped at a R.I.D.E. program. He testified regarding the amounts he consumed and filed a toxicologist’s report showing that in some of the scenarios presented that at the time of the driving his blood alcohol level could have been below the legal limit. The trial judge accepted the appellant’s evidence of consumption but convicted him of driving having consumed excess alcohol.
[2] He appeals contending the trial judge erred in:
i. reversing the onus and requiring him to prove his innocence beyond a reasonable doubt,
ii. setting the standard of proof as akin to one of absolute liability, and
iii. finding the appellant would have to call evidence of the exact amount he had to drink to the millimetre and his exact elimination rate when it is impossible to obtain either and prohibitively expensive for most drivers,
[3] For the following reasons, the appeal is dismissed.
The Trial Evidence
[4] The appellant was stopped in a R.I.D.E. spot check at 7:36 p.m. on June 19, 2010. When twice asked if he had consumed any alcohol, he said he had not. When the officer asked about the smell of alcohol in the vehicle, the appellant said it must be from the empty beer bottles that were in the vehicle. The officer made a breath demand for screening purposes. The breath sample analyzed as a ‘fail’ and he was arrested. The Intoxilyzer breath samples resulted in readings of 103 and 105 milligrams of alcohol in 100 millilitres of blood at 8:56 p.m. and 9:18 p.m.
[5] The appellant conceded the readings were accurate when taken but argued that they did not reflect his blood alcohol level at the time of driving, one hour and twenty minutes earlier, because of the appellant’s drinking pattern. He testified that he was 210 pounds and 6 feet tall. He worked on the date of his arrest and consumed no alcoholic beverages during his employment. He went with his co-workers to their shop around 6:45 p.m. where they consumed 12 cans of beer, each containing 500 millilitres with 5% alcohol content.
[6] Before the appellant left the shop at 7:30 to 7:31 p.m., he drank four cans of beer. It was a hot day so the first beer went down “pretty easily.” The other three were paced until around 7:20 or 7:25 p.m. By roughly 7:20 to 7:25 p.m. he had consumed three beers. The others had finished their beers and were going out the door. They were all going to a friend’s home for a barbecue. The appellant’s third beer had “maybe the last third, more than a quarter, but at least the last third of it.” While he was starting to lock up and make sure the lights were out, he finished the third can and noticed there was one beer remaining. He drank it and what was left in his third beer within the last two minutes before he left the shop.
[7] The appellant was stopped approximately five minutes after leaving. He did not feel consuming that amount impacted on his ability to drive as he was in “control of everything” although he admitted that “putting back four tallboys in forty minutes” was not moderate drinking. It was abnormal for him and reflected bad judgment on his part.
[8] James Furlong was working with the appellant, went to the shop where they drank and left there before the appellant. He could not recall if they drank bottles or cans. While there, he had three beers because he never drinks more than three if he is driving. He was not keeping track of what others drank.
[9] Dr. S. Krishnan, a toxicologist, provided a report that concluded based on the appellant’s account of his drinking pattern, that at 8:56 pm his blood alcohol readings would have been between 96 and 118 when the first Intoxilyzer sample was provided and between 88 and 114 when the second sample was given. The readings were 103 and 105 milligrams of alcohol in 100 millilitres of blood.
[10] The report noted that in the general population, absorbed alcohol is eliminated from the system at a rate between 10 and 20 milligrams percent per hour. The most common elimination rate, the mid-point of the range, is 15%. Because the appellant was not subjected to a specific elimination test, his rate could be assumed to be anywhere within the range. For that reason, the calculations provided for residual blood alcohol content at any specific time were given in the form of a range.
[11] The toxicologist provided three scenarios in relation to the appellant’s blood alcohol level at the time he was stopped by police based upon the appellant consuming the third partial and fourth full can within 10 minutes of being stopped, between 7:26 and 7:36 p.m. On those bases, the beer consumed within two minutes of leaving would not have been absorbed into his system at 7:36 p.m., the time he was stopped.
i) assuming 1.33 cans of beer were consumed within ten minutes of being stopped at 7:36 p.m., the appellant’s blood alcohol level would have been between 76 and 84 milligrams of alcohol in 100 millilitres of blood when he was stopped;
ii) assuming 1.5 cans of beer were consumed within ten minutes of being stopped at 7:36 p.m., his readings would have been between 70 and 79 milligrams of alcohol in 100 millilitres of blood; and
iii) assuming two cans were consumed within ten minutes of being stopped at 7:36 p.m. the readings would have been between 53 and 61 milligrams of alcohol in 100 millilitres of blood.
The Reasons for Judgment
[12] The trial judge set out the presumptions of identity and accuracy in s. 258(1) of the Criminal Code. He identified the appellant’s challenge was to the presumption of identity and next addressed the findings of fact. Mr. Furlong assisted the appellant with the events of the date and the late consumption of alcohol but was of little to no assistance in determining the amount the appellant drank. The trial judge accepted his evidence that they drank alcohol at the shop, that there was no alcohol consumed earlier in the day and that the group left shortly before the appellant.
[13] His Honour next found the appellant was a credible and reliable witness; forthright, candid and honest. He accepted his evidence. His Honour appropriately did not consider the fail on the roadside test, nor the appellant’s denial of consumption. He accepted that he drank the alcohol in the manner to which he testified. The trial judge found that when the others left, the appellant had more than a quarter and less than a third in his third beer which he drank before finishing his fourth beer prior to leaving at 7:30 to 7:31 p.m. He was stopped about five minutes later at 7:36 p.m. His Honour also accepted the expert evidence.
[14] The trial judge identified the critical issue as to whether or not the appellant’s evidence was sufficient to rebut the presumption of identity. Section 258(1)(1.d) required evidence that tended to show the alcohol consumed resulted in a blood alcohol concentration that was consistent with the test results and that the appellant’s blood alcohol content at the time of driving was below the legal limit.
[15] His Honour found that at its highest the appellant’s evidence showed that at the time of driving his blood alcohol level was between 76 and 84 milligrams of alcohol in 100 millilitres of blood. Accordingly, he could have been under or he could have been over the limit. That was straddle evidence.
[16] The next issue was whether the straddle evidence resulted in His Honour being left in a state of reasonable doubt given the working of s. 258(1)(1.d) and the conclusion he reached on the evidence. He found that it did not.
[17] Relying on the Supreme Court of Canada’s judgment in R. v. Gibson 2008 SCC 16, 2008 S.C.C. 16, the trial judge found the evidence did not rebut the presumption. In examining Gibson, His Honour found four judges concluded straddle evidence could never rebut the presumption while three judges found the evidence was admissible but it would be rare where that evidence rebutted the presumption of identity. His Honour found that it would be rare where average rates of elimination are used.
[18] His Honour continued:
Given the reasoning in Gibson and the clear wording of s. 258(1)(1.d), then as it now reads, the presumption of identity referred to within that section can only be rebutted by evidence that tends to show the accused’s blood alcohol concentration did not exceed the legal limit. Here, the evidence is not conclusive in that regard and even accepting the evidence of Mr. Snider, as I do, that evidence does not show that his blood alcohol concentration did not exceed the legal limit at the time of driving. Here, there is no evidence with respect to rate of elimination at the relevant time which may have assisted Mr. Snider, as the blood alcohol concentration might have taken into account such specific rate of elimination as opposed to the general range between 10 and 20 milligrams set out in Dr. Krishnan’s report.
As noted by the four justices in Gibson, straddle evidence is an attempt to defeat the presumption set out in the Code and as such, does not tend to show that an accused’s blood alcohol concentration did not exceed the legal limit at the time of the offence. Straddle evidence merely confirms that the accused falls into the category of drivers targeted by Parliament, namely those who drive having consumed enough alcohol to reach a blood alcohol concentration exceeding 80 milligrams. The fact that Mr. Snider may have been over or under, on the evidence before this court, including his own evidence, is not sufficient in the circumstances of this particular case as such evidence is not capable of raising a reasonable doubt. Further, there is nothing in the evidence otherwise which would enable the court, if it was so inclined, to adopt the reasoning of Justice LeBel and the two other justices to find this is a rare case where such evidence might raise a reasonable doubt.
The Legislation
- (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of 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 fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol 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;
(d.1) if samples of the accused's breath or a sample of the accused's blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both
(i) a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and
(ii) the concentration of alcohol in the accused's blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken; (emphasis added)
The Grounds of Appeal
Overview and the Positions of Counsel
[19] The appeal addresses the standard to be applied when a accused person provides Intoxilyzer breath samples and the readings are in excess of the legal limit, the accused agrees that those readings are accurate but leads factual evidence that is accepted by the trial judge and expert evidence to show that at the time of driving his blood alcohol level may have been under the legal limit.
[20] The appellant submits that this is not an “evidence to the contrary” case. The opposite is true. The appellant’s evidence was consistent with the Intoxilyzer readings obtained at the station. The issue is whether the Intoxilyzer readings accurately reflect his blood alcohol level at the time of driving. All that was required to rebut the presumption of identity was that he raise a reasonable doubt at trial regarding his blood alcohol level at the time of driving.
[21] He contends the trial judge applied the wrong test, imposing too rigid a standard, effectively reversing the burden of proof. His Honour set the bar too high for those charged with driving having consumed excess alcohol who seeks to rebut the presumption of identity. Requiring the accused to obtain his or her actual elimination rate would be prohibitive for most accused persons as the fees for such testing would be thousands of dollars. In addition, for many accused being able to provide an exact amount consumed is problematic. Finally, the appellant contends that by finding the appellant’s evidence was not “conclusive,” the trial judge reversed the onus, requiring the appellant to establish his or her innocence beyond a reasonable doubt.
[22] The Crown concedes that in light of R. v. Ibanescu 2013 SCC 31, the trial judge applied the wrong test. However, His Honour went on to find that applying the test approved by three judges in Gibson, and subsequently approved by the full Court in Ibanescu, the appellant had not defeated the presumption of identity. Accordingly, the trial judge’s alternative basis for convicting applied the correct law for straddle evidence cases and reflects to reversible error.
Analysis
The Law
[23] Evidence “tending to show” an accused’s blood alcohol level did not exceed the legal limit, does not impose an ultimate or persuasive burden on the accused. Rather, the evidence must tend to show, but need not prove that the blood alcohol level did not exceed the statutory limit at the time of driving. The accused’s evidence must have probative value but need not be so cogent as to persuade the court. R. v. Dubois (1990), 62 C.C.C. (3d) 90 (Que. C.A.) approved of in R. v. Gibson 2008 SCC 16, [2008] 1 S.C.R. 397.
[24] All seven judges in Gibson concluded that the evidence led in both cases under consideration failed to rebut the presumption. Four judges held that straddle evidence would never defeat the presumption, concluding that in order to do so, the evidence must show that based on the amount the accused consumed his or her blood alcohol concentration would not have been above the legal limit, at the time of driving, regardless of how fast or slow the accused may have been metabolizing alcohol on the day in question. The court need not be convinced of that fact. It would be sufficient if the evidence raised a reasonable doubt.
[25] Three judges found that straddle evidence could defeat the presumption but that would rarely occur where the opinion evidence was based on general elimination rates. While four judges totally removed the straddle evidence admissibility “strike zone,” three left it open - but just barely.
[26] In Ibanescu, all nine justices presided and, in a unanimous judgment, found the probative value of straddle evidence was as set out by LeBel J. in the three judge judgment in Gibson. Returning to LeBel J.’s judgment there are important qualifications on the effect of straddle evidence;
i) the probative value of evidence based on the elimination rates of the general population will often be so low that it fails to raise a reasonable doubt that the accused had a blood alcohol content exceeding 80 mg. This is so because elimination rates vary from person to person and will also vary in each person depending on a number of factors including the amount of food consumed, the type of alcohol and the pattern of consumption;
ii) expert evidence regarding the accused’s elimination rate established by testing has the potential to be more probative. However, because an individual’s elimination rates can vary from time to time, the probative value will depend on a number of variables controlled in the elimination test. The closer the facts applied to the elimination test mirror those of the date of the Intoxilyzer tests taken by the police, the more probative the accused-specific elimination rate become;
iii) a wide straddle range cannot be considered evidence to the contrary since it does not tend to prove the accused’s blood alcohol level was under the legal limit.
iv) a straddle range that is overwhelmingly above 80 mg. may be of limited probative value; and
v) where the straddle range is small or overwhelmingly under 80 mg. the more probative value the evidence will have in tending to show the accused’s blood alcohol level was below the legal limit.
[27] An examination of those factors outline the rare case in which straddle evidence could defeat the presumption of identity.
[28] Given His Honour understandably relied primarily on the judgment of Charron J. who wrote on behalf of four justices in Gibson, the question on this appeal is whether His Honour erred in finding that there was nothing in the evidence which would enable the Court to find he was left in a reasonable doubt based on this straddle evidence applying the probative value analysis endorsed in Ibanescu.
[29] Applying the noted in para. 26, I am not persuaded the trial judge erred. Did he correctly conclude there was a very narrow strike zone through which an accused can defeat the presumption of identity? Yes. Is it a very rigid test? Yes. Did His Honour err in finding the appellant’s evidence missed the mark applying the Ibanescu adopted probative value analysis? No.
[30] I reach those conclusions for the following reasons. First, the appellant relied on general elimination rates contained in a report. His rate could have been anywhere between 10 and 20 milligrams percent per hour. Even though the mid-point in the range was 15 percent which had it been applied would have assisted the appellant, with the report there was no room for expanding on the likelihood of this appellant being below the legal limit. As counsel noted in argument, depending on the nature of the evidence he or she could give, viva voce evidence from the expert could be more probative. I agree.
[31] Second, while there are limitations on the probative value of personal testing of the elimination rates and they are very expensive, that type of evidence could assist. I do not regard the trial judge’s reference to the absence of personal testing as putting an onus on the appellant to establish his innocence and/or that he was required to do so by establishing his innocence beyond a reasonable doubt. Rather, His Honour was mirroring the comments of the Supreme Court of Canada.
[32] Third, I do not read His Honour’s judgment as finding an accused must know their alcohol consumption to the exact millilitre. When dealing with bolus drinking, it can be more challenging when a partial can, bottle or glass was consumed during the brief pre-driving period of time. As I read the Supreme Court judgments, the more certainty the better for the accused. That an accused consumed part as opposed to a complete bottle or can, while no doubt unfortunate for the appellant, is consistent with the very narrow strike zone left by Parliament and identified by the Supreme Court of Canada.
[33] Fourth, the trial judge’s use of “conclusive” while at first blush inconsistent with the evidence tending to show the appellant was below the legal limit, has to be read in context. His Honour read the Criminal Code provision that included “tending to show,” referred to Gibson, and in the sentence before and as part of the sentence in which “conclusive” is used refers to “tend to show.” Also, the trial judge found the appellant’s evidence was not conclusive in that regard. As I read the Reasons for Judgment, His Honour’s use of “conclusive,” referred to the fact the appellant’s evidence did not tend to show his blood alcohol level was under the legal limit as opposed to the appellant having to prove or establish he was under the legal limit. His Honour addressed the real issue in relation to straddle evidence in the second last sentence of his judgment, noting it had not left him in a state of reasonable doubt. When the Reasons are read in their entirety, I am not persuaded His Honour reversed the onus or required the appellant to prove his innocence.
[34] Fifth, in accepting the appellant’s evidence His Honour applied the maximum amount the appellant testified to, that there was at least one third in the third can. When dealing with bolus drinking issues, the more the accused consumed during the brief pre-driving period the lower the reading at the time of driving as reflected in the various calculations from the report. No doubt, had the trial judge proceeded on the basis the appellant consumed more than one third from the third can within two minute of leaving it would have helped the appellant. However, to do so on this record would have required speculation as to how much was left in the third can beyond the “at least one third” to which the appellant testified.
[35] Sixth, the range, while very narrow, did not show an overwhelming extent of the range was below 80 mg.
[36] Returning to the appellant’s grounds of appeal. First, I am not persuaded His Honour reversed the onus. Reading the entire Reasons, I am persuaded the trial judge considered whether the bolus drinking evidence called left him in a state of reasonable doubt and found it did not. Neither, am I persuaded that the trial judge required the appellant to prove his innocence beyond a reasonable doubt in the use of the word “conclusive” for the reasons noted earlier.
[37] Second, while the strike zone is a very narrow one, I am not persuaded the trial judge’s Reasons are inconsistent with the Supreme Court of Canada judgments. It does not create an absolute liability offence although the test to defeat the presumption is stringent. While I accept that it is very expensive to conduct tests to determine an individual’s elimination rate and that those rates vary for the same person from time to time, the Supreme Court has held that general elimination rates will rarely defeat the onus.
[38] Third, I am not persuaded the trial judge’s ruling required an accused to establish his elimination and the amount consumed to the exact millimitre of alcohol. The appellant said he drank one full beer and part of another within the two minutes before he left. The partial beer had “maybe the last third … more than a quarter but at least the last third … of it.” The trial judge applied the highest amount that the appellant was sure he had consumed and found it did not leave him with a reasonable doubt.
[39] No doubt, the more precise the accused person’s evidence about his or her bolus consumption, the better pursuant to the Supreme Court of Canada judgments. That is part of the criteria for defeating the presumption of identity. His Honour applied binding authority.
[40] The Supreme Court has provided the factors to be considered when assessing whether in a particular case the accused has defeated the presumption in s. 258(d.1) and the judge has been a reasonable doubt regarding the blood alcohol level at the time of driving. The items noted at para. 26 above, significantly restrict the type of evidence that will be probative. The closer an accused person gets to those areas such as having elimination rate testing that closely mirrors the drinking pattern on the date of arrest and proximate in time to the arrest, the more persuasive the evidence called to defeat the presumption. The more precision in terms of the amounts consumed and the time period during which the drinking occurred, the more persuasive the evidence.
[41] I am not persuaded the trial judge erred in his approach to straddle evidence and the presumption of identity.
Conclusion
[42] As an alternative basis for finding the appellant had not rebutted the presumption of identity, the trial judge applied what has become the appropriate test in Ibanescu. His Honour took the relevant factors into consideration and determined the appellant had failed to displace the presumption. The appellant has not persuaded me that he erred in doing so.
[43] The appeal is dismissed.
DURNO J.
Released: February 25, 2014
GUELPH COURT FILE NO.: Guelph 12-107-00
DATE: 20140225
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
RICHARD SNIDER
Appellant
REASONS FOR JUDGMENT
Durno J.
Released: February 25, 2014