R. v. Balasingham, 2015 ONSC 4112
COURT FILE NO.: CR-14-50000677-0000
DATE: 20150625
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANPINATHAN BALASINGHAM
Aaron Del Rizzo, for the Crown
Patrick Barry, for Apinathan Balasingham
HEARD: June 10-19, 2015
r.f. goldstein j.
Ruling on “bolus drinking” issue
[1] At some point on the morning of February 18, 2012 Mr. Balasingham had quite a lot of alcohol in his system – more than twice the limit, in fact. Despite that, he told the jury that he really wasn’t that drunk at all. He had a serious motor vehicle collision, but that, he said, was because of the snowy weather. He said that he only had one or two rum-and-cokes. His friend, who served him that early morning, said it was actually just one rum-and-coke.
[2] The defence theory is that Mr. Balasingham engaged bolus drinking and that he wasn’t impaired at the time of the collision. Two toxicologists – one for the Crown, and one for the defence – agreed that he had to have drunk more than he claimed to generate the very high blood alcohol readings that were taken after the collision.
[3] Bolus drinking occurs where a person consumes a large amount of alcohol just prior to driving. Since alcohol takes time to be absorbed into the bloodstream, in theory a person can consume a large amount alcohol, drive, and not be above the legal limit for about 15 minutes.
[4] The Crown moved to have me take away consideration of bolus drinking from the jury. Was there a duty on me as the trial judge to do so?
[5] Although bolus drinking is not a legal defence, like self-defence or provocation, I ruled that the “air of reality” test still applied. I indicated to the jury that if they accepted the evidence of the Crown and defence toxicologists regarding the calculation of alcohol in the bloodstream, the facts did not support “bolus drinking” and they were not to consider the issue.
[6] The jury subsequently convicted Mr. Balasingham of both counts. At the time of my ruling, I indicated that I would simply indicate what my instructions would be and that reasons would follow. These are my reasons.
FACTS
[7] Mr. Balasingham, the accused, and Sheree Morris were driving on Islington Avenue in Toronto early in the morning of February 18, 2012. Mr. Balasingham was going north in his Toyota Previa mini-van. Ms. Morris was going south in her silver Honda Accord. They collided head-on when Mr. Balasingham’s minivan went into the northbound lane. It was around 5:15 am. Ms. Morris had just left her friend’s house. She had not been drinking alcohol. She was driving between 40 and 50 km/h.
[8] The two cars were severely damaged. The airbags in Ms. Morris’s Honda deployed. She was trapped in her car with a broken leg. Mr. Balasingham got out of his car, entered Ms. Morris’s car from the passenger side, and pulled her out. The police arrived a few minutes later. Constable Karakochuck observed that Mr. Balasingham smelled of alcohol, was swaying on his feet, and had slurred speech. He arrested Mr. Balasingham for impaired driving and took him to the police station. Sergeant Butt, the breath technician, took samples of his breath at 7:18 and 7:44 am. The readings were 171 milligrams of alcohol per 100 millilitres of blood and 165 milligrams of alcohol per 100 millilitres of blood. A video-taped statement that I ruled admissible was played to the jury. Mr. Balasingham indicated in the statement that he drank four beers earlier in the evening, and that he was going home right after work.
[9] At trial, the Crown called a toxicologist from the Centre for Forensic Sciences, Inger Bugyera, to give expert evidence regarding the level of alcohol in Mr. Balasingham’s bloodstream at the time of the collision. She projected Mr. Balasingham’s blood alcohol concentration between 160 and 210 milligrams of alcohol per 100 millilitres of blood between 5:15 am and 5:45 am.
[10] The defence also called a toxicologist, Dr. Joel Mayer, to give expert evidence. He testified that he completely agreed with Ms. Bugyera’s calculations and methodologies. He would have arrived at the same conclusion regarding blood alcohol concentration.
[11] Both toxicologists testified that the calculations were valid provided that there was no bolus drinking. It is standard for toxicologists to provide a disclaimer to their opinion about recent drinking, and Ms. Bugyera did that in this case. Dr. Mayer testified that he did that in every case where he provided an opinion when he worked at the Centre for Forensic Sciences.
[12] Ms. Bugyera provided a calculation as to the amount that Mr. Balasingham would have had to consume in order to have had readings of 165 and 171 at 7:18 and 7:44 am, and yet have a blood alcohol concentration below 80 milligrams of alcohol in 100 millilitres of blood at the time of the collision. She said that he would have had to consume 4 ½ to 5 standard drinks either 15 minutes before or 15 minutes after the collision. She defined a standard drink as one 12-ounce beer, 1 glass of wine, or one glass of spirits with 1 ½ ounces of alcohol. Dr. Mayer agreed with Ms. Bugyera’s calculation.
[13] Mr. Balasingham testified that he worked at Sherway Collision during the day and then worked at a cleaning job at a Mercedes dealership in the early morning hours. At 12:30 or 1:00 am on February 18, 2012 he went to work at his job at Mercedes. The dealership was at Queensway and Islington. He left work at 3:45 to 4:00 am and went to his friend Mark Mohammed’s house. It was his friend Mark’s birthday. Mark lived at Dixon Road and Islington. Mr. Mohammed invited Mr. Balasingham to come to the house and have some food. Mr. Balasingham arrived there around 4:15 or 4:20 am. Mark gave him some alcohol. He thinks it was rum and coke with ice cubes. In cross-examination he said he thought he had two glasses of rum and coke. He was going to go to sleep over at Mark’s house when his wife called and told him to come home. He does not remember exactly when he had a drink but thinks it was maybe 4:45 am.
[14] Mr. Balasingham testified that he left Mark’s house at 4:55 or 5:00 am. He said later in his examination-in-chief that his wife called at about 4:50 or 5:00 am and that he left at 5:05, maybe. He drank most of his drinks before his wife called but then had a mouthful before leaving. The collision occurred at 5:10 or 5:15 am.
[15] Mr. Mohammed testified that Mr. Balasingham came to visit him at about 4:20 or 4:30 on the morning of February 18, 2012. He gave Mr. Balasingham some food and then made him a drink of rum-and-coke. He said that the drink was a water glass that he half-filled with rum. He said he usually poured the ice first, then the run, then the coke. He said that he made one drink. He served it to Mr. Balasingham at approximately 4:45 am. Mr. Balasingham’s wife called at approximately 4:55 am. Mr. Balasingham had drunk approximately half the rum-and-coke at that point. Mr. Balasingham said that his wife told him that he had to go home. Mr. Balasingham then drank the other half of the drink, had a sort conversation with Mr. Mohammed, and then left. He said that took about five minutes.
ISSUE:
[16] Is there an “air of reality” to bolus drinking in this case?
ANALYSIS:
[17] A defence can be left with a jury where there is an air of reality to it. A defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3.
[18] In Cinous, the accused was charged with first degree murder. He and the victim were accomplices in a criminal scheme. He shot the victim in the back of the head in what he claimed was self-defence. The jury convicted him. The Quebec Court of Appeal identified several errors in the judge’s charge regarding self-defence, reasonable doubt, and the burden of proof and ordered a new trial.
[19] The Supreme Court of Canada overturned the Court of Appeal and restored the conviction. The Court said that the defence of self-defence should never have been put to the jury in the first place because it had no “air of reality” to it. Thus, the errors made by the trial judge were inconsequential.
[20] The Supreme Court formulated the test this way: is there evidence on the record upon which a properly instructed jury acting reasonably could acquit?
[21] I glean the following principles from Cinous:
• A trial judge has a positive duty to keep from the jury defences lacking an evidentiary foundation;
• There is an evidential burden on an accused person to establish the facts supporting the defence;
• The trial judge must consider the totality of the evidence and assume that the evidence relied on by the accused is true;
• The trial judge should not weigh the evidence, make determinations of credibility, or draw factual inferences;
• The trial judge should not consider whether the defence has a likelihood of success;
• The single “air of reality” test applies to all defences.
[22] As McLachlin C.J. and Bastarache J. for the majority put it at para. 54 of Cinous, “the question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.”
[23] Binnie J., with his usual flair, described the issue in Cinous this way:
When the smoke clears, this appeal comes down to a simple proposition. A criminal code that permitted preemptive killings within a criminal organization on the bare assertion by the killer that no course of action was reasonably available to him while standing outside a motor vehicle other than to put a shot in the back of the head of another member sitting inside the parked vehicle at a well-lit and populated gas station is a criminal code that would fail in its most basic purpose of promoting public order.
[24] The air of reality issue has been considered in many cases since the Cinous decision. Most recently, the Ontario Court of Appeal dealt with the issue in R. v. Bengy, 2015 ONCA 397, [2015] O.J. No. 2958, R. v. Modeste, 2015 ONCA 398, [2015] 2957, and R. v. Constantine, 2015 ONCA 330, [2015] O.J. No. 2381.
[25] Turning to the application of the test, there is simply no air of reality to bolus drinking in this case. Mr. Balasingham, on his evidence testified that he consumed two drinks. He consumed them, on his evidence, almost entirely (except for a “mouthful”) outside the 15 minute window. That is much less than the alcohol that the two toxicologists said would have been necessary for the subsequent breath readings, even accounting for a possibly larger drink size. The evidence of Mr. Mohammed was that Mr. Mohammed consumed one drink, most of it outside the 15 minute window. That is even less than what the toxicologists say was necessary.
[26] Assuming that the jury accepted all of the evidence testified to by Mr. Balasingham and Mr. Mohammed – and assuming that the jury accepted the evidence of the two toxicologists – the facts simply did not support a “bolus drinking” defence. The science and the math just did not work in Mr. Balasingham’s favour. In my view, a properly instructed jury, acting reasonably, could not have acquitted Mr. Balasingham on the bolus drinking issue. To paraphrase Cinous at para. 84: to have put this outlandish defence to the jury would have been confusing and would have invited an unreasonable verdict.
[27] It is true that bolus drinking is not a defence, in the way that self-defence or provocation is a defence. It is also true that the Crown is required to prove the absence of bolus drinking beyond a reasonable doubt: R. v. Hall (2007), 2007 ONCA 8, 83 O.R. (3d) 641 (C.A.). Where a defence is raised, however, there is an evidential burden on the accused.
[28] That said, the “air of reality” test must apply to this issue. There is nothing in Cinous that suggests the test is restricted to defences in law. To have left this issue with the jury would have been confusing and distracting. How would the W.D. instruction have worked? If the jury accepted the evidence of the two toxicologists, they could not have acquitted Mr. Balasingham on this particular issue if they believed him or found that his evidence might reasonably be true. Mr. Mohammed’s evidence, if believed, also did not support the theory of bolus drinking. See: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The statement given by Mr. Balasingham to Sergeant Butt, although available for the jury to consider, was not exculpatory in this (or any other) issue.
[29] I acknowledge that in removing the consideration of bolus drinking, the jury could have rejected the evidence of the two toxicologists. That said, I must consider the totality of the evidence. It would have been extremely surprising if the jury did not accept the evidence the Crown and defence experts where they were in agreement, but that, of course, was for the jury. Although I think that I could have urged the jury to accept that evidence, I did not do so in my charge. Accordingly I used the identical language on each count:
At this point I want to remind you that the two toxicologists, Ms. Bugyera and Mr. Mayer, testified about “bolus drinking”. They stated that in order for Mr. Balasingham to have had breath readings of 165 and 171 milligrams of alcohol per 100 millilitres of blood at the time of the breath tests he would have had to consume 4 ½ to 5 standard drinks within 15 minutes of the collision. I want to tell you that if you accept the evidence of the two toxicologists, then you must not consider the issue of “bolus drinking” and it should play no role in your deliberations on this charge. You must, of course, consider all of the other evidence in relation to impairment, including the evidence of Mr. Balasingham himself, but you must not consider whether “bolus drinking” applies to this charge.
DISPOSITION:
[30] The jury was instructed that if they accepted the evidence of the Crown and defence toxicologists, they were not to consider the issue of bolus drinking.
R.F. Goldstein J.
Released: June 25, 2015
CITATION: R. v. Balasingham, 2015 ONSC 4112
COURT FILE NO.: CR-14-50000677-0000
DATE: 20150625
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANPINATHAN BALASINGHAM
RULING ON “BOLUS DRINKING” ISSUE
R.F. Goldstein J.