NEWMARKET COURT FILE NO.: CR-12-08709-AP
DATE: 20150728
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Appellant
– and –
Jessica Carney
Respondent
Paul Tait, for the Appellant/Crown
Nicholas Xynnis, for the Respondent
HEARD: June 25, 2015
RULING ON APPEAL
CHARNEY J.:
Introduction
[1] The issue in this appeal is whether the trial judge properly exercised his discretion when he denied the Crown an adjournment for the purposes of calling reply evidence to respond to a defence of “bolus”[^1] drinking in a Driving Over 80 case. As a general matter, the decision to grant an adjournment and permit the Crown to call reply evidence is a matter within the discretion of the trial judge hearing the case. The Crown submits that in this case the trial judge exercised that discretion on the basis of a misapprehension of the law. In particular, the reasons given by the trial judge suggest that he confused the Crown’s request to call reply evidence with a request by the Crown to re-open its case, and denied the adjournment on the basis that the Crown was splitting its case.
[2] For the reasons given below, I am of the opinion that the trial judge’s reasons for denying the adjournment do suggest that he considered the Crown’s request as a request to re-open its case rather than a request to call reply evidence, and he therefore exercised his discretion on the basis of incorrect legal principles. As such I would allow the appeal and order a new trial.
Background
[3] The respondent was stopped by the police on October 4, 2012, when her vehicle was observed weaving in its lane and signalling a lane change without changing lanes, stopping abruptly and driving into a coned off construction area. The officer conducted a traffic stop and noticed the respondent had alcohol on her breath. The respondent denied consuming any alcohol. The officer administered a roadside screening device test and the respondent failed the test. The respondent was arrested at 11:58 p.m. for Driving Over 80.
[4] At the police station, the respondent provided samples of her breath to a breath technician. Her blood alcohol concentration, as revealed by the tests, were 284 milligrams per 100 millilitres of blood at 1:20 a.m., 252 mg at 1:58 a.m. and 233 mg at 2:25 a.m. Since the tests at 1:20 a.m. and 1:58 a.m. were more than 20 mg/100 mL apart, the third test at 2:25 a.m. was necessary to confirm the results. This meant, however, that the tests relied on by the Crown were conducted more than two hours after the respondent had been arrested.
[5] Where the blood alcohol test is conducted within two hours of when the offence is alleged to have been committed, the Crown has the benefit of s.258(1)(c) of the Criminal Code, which provides that “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 other words, in the absence of evidence to the contrary, there is a presumption of identity – that the blood alcohol level at the time of the offence is the same as the blood alcohol level at the time of the test. This provision was designed to limit the availability of the bolus defence in which accused would testify that he or she had a large quantity of alcohol immediately before driving. While it might seem counterintuitive that consuming a large quantity of alcohol immediately before driving can be a defence to impaired driving, it is based on the science that this alcohol, while unabsorbed at the time the accused was stopped, was absorbed by the time of testing, thereby raising a reasonable doubt that the passage of time caused the defendant’s blood alcohol to rise from below 80 mg while driving to above 80 mg when tested.
[6] Where the blood alcohol test is taken outside of the statutory two-hour limit (as in the present case) the Crown loses the s.258(1)(c) presumption of identity. This is acknowledged in the certificate provided by the forensic toxicologist in the present case, which stated that “the projected blood alcohol concentration (BAC) at approximately 11:50 p.m. is 235 to 280 milligrams of alcohol in 100 millilitres of blood (mg/100mL)”, but acknowledged that this projected range was dependent on four additional factors, including, “No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident.” The certificate notes that “A large quantity of alcohol is defined primarily by the weight and gender of an individual. A calculation to assess the impact of a large quantity of alcohol on the projected BAC can be performed if requested.”
[7] At her trial, the respondent testified that on the evening she was arrested she drank half a 750 mL bottle of Jack Daniel’s between 9:00 p.m. and 11:00 p.m. The respondent decided to go out for cigarettes, and before leaving to buy them she rapidly drank (“chugged”) a 500 mL “tallboy” of beer in one or two minutes, and within minutes left the house around 11:30 p.m. She testified that she did not feel any effects of alcohol on the night and had no fears about her ability to drive. She told the police that she had not consumed any alcohol when they stopped her because she was afraid.
[8] After the respondent’s evidence the trial judge asked the Crown if she was calling any reply evidence. The Crown initially declined and the court then broke for lunch. When they returned after the lunch break the Crown immediately advised the court that she had reconsidered her position and was asking permission to call reply evidence. In particular, the Crown wanted to call the toxicologist who had prepared the report to testify whether the respondent’s bolus defence – drinking a 500 mL can of beer within fifteen minutes of being stopped – could have caused her BAC to rise from below 80 mL to over 235 mL in the interim between driving and testing. The purpose of the Crown’s proposed evidence was not to contradict or question the accused’s evidence of chugging a tallboy of beer, but to calculate what impact that “last drink” would have on her BAC at the time of testing. The following exchange took place:
MS. KUMARESAN: Your Honour, I know I had indicated before the lunch break that the Crown wasn’t calling any Reply evidence. And having thought about it over the lunch break I would be asking Your Honour for per – permission to call Reply evidence in this trial.
THE COURT: I can guess what evidence you wish to call but why would we re-open the case because Defence presented their evidence and this appears to me the Defence is focused on one issue.
MR. MERGLER: Yes, sir.
THE COURT: They put all their cards on that issue. The case was closed. The Crown chose not to call the Toxicologist and have that person here today. That’s your choice. Not your personal choice but your choice as the Crown.
The Crown chose not to call Reply evidence when they had the chance. I know it’s only been mixed up later so nothing can be undone, but in a case where the Toxicologist could have been available and the Crown chose not to, the Defence base their evidence on a particular feature. Why should the court adjourn a matter that’s been going on since 2012?
MS. KUMARESAN: With respect to the timing of this case I do know that the full length of time it took to get to trial does not fall at the feet of the Crown.
THE COURT: My guess is you are right just looking at the list of adjournments, et cetera, but there’s a public interest in having matters that come to trial completed in a timely way.
We certainly have time. You would have had time today for the Toxicologist’s evidence but there’s nobody here. So if you choose to have no Toxicologist why should I grant adjournments and create another trial date?
MS. KUMARESAN: With respect to having a Toxicologist here it’s not in every case that the Crown does call a Toxicologist. And there’s provisions in the Criminal Code for the purpose of expediting cases to allow the Crown to rely on a Report.
The Crown can’t predict what Defence evidence would be called. In this case there was evidence of bolus drinking, however, the Crown can’t go ahead on every case assuming bolus drinking might be called and then have the Toxicologist on standby, and that’s the reason…
THE COURT: There’s four premises on which those expert opinions are based and that’s only one of the things. Now it happens to be the one in this case and it’s often an issue, but there’s many things that can differ.
The same thing was true in the Carter days when the Defence would have a Carter so-called Report, which is a mathematical calculation and the evidence would come out a bit different at trial, and all of a sudden the Defence was without evidence. It’s known that it’s always dangerous to rely on a Report because things have to go exactly as per script, otherwise you don’t have evidence. This Report identifies that weakness.
I’ll hear your submissions on the point in any event.
MS. KUMARESAN: Aside from the Crown not being able to predict the evidence of the Defence and our reliance on the Toxicology Reports to avoid experts come in to testify when they have other work, and also to avoid the length of time it takes for an expert to testify on issues that may or may not be relevant.
Obviously in this case it has become relevant for a Toxicologist to testify, but that’s the reason why a Toxicologist was not present today.
THE COURT: Alright. You’re otherwise requesting an adjournment…
MS. KUMARESAN: Yes.
THE COURT: …to call that in Reply?
MS. KUMARESAN: Yes.
THE COURT: What’s the Defence position?
MR. MERGLER: I’d like to conclude the proceedings today. I – I think it was within the realm of a predictable that that might well be the defence. None of the other parameters on which her opinion were predicated could possibly apply. There was no Charter filed, so by the process of elimination I – I don’t think it’s shocking that the defence is so-called bolus drinking defence, Your Honour.
Other jurisdictions commonly have Toxocoligists, if not on standby actually present. In Brampton they…
THE COURT: I must say we do here, maybe up ‘til now, but you’re right. It’s not unusual.
In this particular case I’m going to refuse the Crown’s request to re-open the case after it was closed and the Crown made an initial decision not to call evidence for a few reasons.
First of all, I agree that the Information suggests that most of the delay to date would be caused by the Defence. It appears that things really didn’t start to move forward until Mr. Mergler came on board and the change of counsel, and the trial date was quickly set.
Having said that, there’s a public interest in having these matters tried. There’s a matter of public interest in having matters tried on the day that they’re set. If I take another trial date and adjourn this matter, I’m taking time away from other trials.
The Crown’s made a particular decision to not have a Toxicologist here. I’m not sure why one would ever make that decision, but that’s for the Crown to review in the context of perhaps lesson learned in this case.
More importantly, and perhaps most importantly, the Defence has focused on a particular issue and they’ve ridden that horse right to the conclusion of the case, right to all of this was closed and people went away to make submissions. In my view it would be unfair now to re-open the case and allow the Crown to essentially shift ground and change the nature of the case.
Had the Crown applied earlier that might certainly have been different. But in the circumstances I am going to refuse the Crown’s Application to re-open and invite submissions. So maybe I’ll start with the Crown.
[9] On this basis, the trial judge denied the Crown’s request for an adjournment to call reply evidence. He accepted the bolus drinking defence and dismissed the charges. In his reasons the trial judges stated as follows:
The defence called evidence focused on a single issue. At the close of the defence case the Crown said they were not calling Reply evidence. After preparing submissions the Crown later applied to re-open the case and applied for an adjournment so they could call a witness they chose not to have attend the trial. Both applications were dismissed.
While the three remaining elements of the Toxicologist’s opinion were supported by the evidence at trial and well explained, the Crown has failed to prove that there was “no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident”.
While the accuracy of the readings is not in doubt the failure to prove the foundation for the Toxicologist report means there is no evidence relating those readings back to the time of driving.”
Analysis
Onus on the Crown
[10] In reading the trial judge’s reasons as a whole, it is apparent that the trial judge was of the view that the onus was on the Crown, as part of the Crown’s case in chief, to disprove “bolus drinking” and that the Crown’s request to call further evidence to respond to the bolus drinking defence was a request to “re-open” the Crown’s case rather than a request to call reply evidence in response to a defence raised by the respondent. In my opinion, this distinction is significant, because different principles apply when the Crown requests to re-open its case rather than call reply evidence.
[11] While the trial judge’s oral comments tend to use the words “reply” and “re-open” interchangeably, most of his comments appear to indicate that he viewed the request as a request re-open, and suggest that the Crown was, in effect, trying to split its case. For example, the trial judge stated,
They [the defence] put all their cards on that issue. The case was closed. … The Crown chose not to call Reply evidence when they had the chance. … In this particular case I’m going to refuse the Crown’s request to re-open the case after it was closed... More importantly, and perhaps most importantly, the Defence has focused on a particular issue and they’ve ridden that horse right to the conclusion of the case, right to all of this was closed and people went away to make submissions. In my view it would be unfair now to re-open the case and allow the Crown to essentially shift ground and change the nature of the case.
[12] It appears from the excerpts quoted above and from the trial judge’s reasons, which state that “the Crown has failed to prove that there was ‘no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident’”, that he was of the view that the onus is on the Crown, as part of the Crown’s case in chief, to prove the facts upon which their expert’s opinion is based, including the lack of bolus drinking. This view is certainly consistent with some of the statements made by the Ontario Court of Appeal in the case of R. v. Grosse, (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785, at para. 10-12 (C.A.). This view is also set out in the text “Impaired Drinking in Canada”, (4th ed.) at p. 322, written by the learned trial judge.
[13] Later statements of the Ontario Court of Appeal and the Supreme Court of Canada, however, clarify that while the onus is on the Crown to prove no bolus drinking, the Crown must present evidence of the negative only if there is some evidence of bolus drinking (either in the Crown's case or in evidence led by the defence), and that in the absence of such evidence, the Crown can rely on an inference that there was not bolus drinking. The Courts have explained that while the persuasive onus is on the Crown, the accused has a “practical evidentiary burden” to point to some evidence that puts the possibility of bolus drinking “in play”.
[14] For example, in R. v. Bulman, 2007 ONCA 169, the appellant was convicted of driving “over 80”, and appealed, inter alia, on the ground that the trial judge failed to instruct the jury “that there was no evidence upon which it could conclude that the appellant had not engaged in bolus drinking prior to the accident.” The Court rejected this ground of appeal stating (at paras. 13 and 14):
The jury was aware that Mr. Wigmore’s [the forensic toxicologist] expert testimony was dependent on an underlying assumption that had to be proven by the Crown – namely, that the appellant had not consumed a large quantity of alcohol shortly before driving (“bolus drinking”). Whether Mr. Wigmore’s underlying assumption was proven was a question of fact for the jury to decide. In making this finding, the jurors were entitled to rely upon their common sense, and to draw inferences about how normal people behave. A reasonable inference is that normal people do not consume large quantities of alcohol shortly before, or while, driving.
... In the absence of any evidence suggesting that the appellant’s drinking pattern on this occasion was abnormal or unusual, the jury was entitled to conclude that the underlying assumptions of Mr. Wigmore’s opinion had been proven beyond a reasonable doubt.
[15] In R. v. Paszczenko, R. v. Lima, (2010), 2010 ONCA 615, 103 O.R. (3d) 424 (C.A.), the issue raised on appeal was exactly the issue raised in the present case: “what is the Crown required to prove in order to be able to rely upon the standard assumptions contained in expert toxicologist reports submitted under s. 657.3 of the Criminal Code in relation to a driver's BAC at the time of arrest when the Crown is precluded from relying upon the presumption contained in s. 258(1)(c)?” (para. 18) With regard to the evidence required to meet the Crown’s onus to prove no bolus drinking the court stated (at paras. 28, 29 and 32):
[28] In establishing that an accused has not engaged in bolus drinking, the Crown is in the unenviable position of having to prove a negative. But how does it meet that onus in circumstances where -- as is likely in many cases -- it has no statement or evidence from the accused as to his or her drinking pattern at the relevant time and no other witnesses or evidence to shed any light on that issue? …
[29] At one level, the answer is straightforward: the Crown need do very little. The toxicologist's report is premised -- amongst other things -- on there being no bolus drinking. In the absence of something on the record to suggest the contrary, on what basis could a trier of fact conclude there was bolus drinking? This court has answered the question posed by concluding that triers of fact may resort to a common sense inference in such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving: see Grosse, Hall, and R. v. Bulman… As noted above, bolus drinking has been said to be a "relatively rare" phenomenon… "No bolus drinking" is therefore largely a matter of common knowledge and common sense about how people behave…
[32] I would frame the rationale for this approach as the imposition of a practical evidentiary burden on the accused, not to persuade or convince the trier of fact that there was bolus drinking involved, 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 that the accused had engaged in bolus drinking in play. The imposition of a practical evidentiary burden to come forward with evidence is simply another way of explaining the invitation to draw a common sense inference which puts the accused in essentially the same spot if he or she cannot point to some evidence to overcome either hurdle.
[16] The Court of Appeal in Paszczenko did not overrule Grosse, but relied on the distinction between a “persuasive burden (which, constitutionally, cannot be shifted to the accused) and an evidentiary burden (which in some circumstances may be)” to clarify the nature of the Crown’s onus (at para. 34):
The common law presumption advocated by the Crown and rejected by the court in Grosse is not the same as the practical evidentiary burden to come forward with some evidence that arises through the application of the common sense inference described above. In Grosse, the court spoke of the accused having the burden of proof on the issue and of the potential creation of a presumption of law that would deem no bolus drinking to be proven in the absence of evidence to the contrary. This is the language of persuasion. Here, the effect of the evidentiary shift is not to require the accused to convince the trier of fact of anything, but simply to be able to point to some evidence on the basis of which it can be said the issue of bolus drinking is alive on the record.
[17] The accused has an evidential burden to put the issue of bolus drinking “into play by reference to evidence before the court” (R. v. Schwartz, 1988 CanLII 11 (SCC), [1988] 2 S.C.R. 443, at p. 466). Accordingly, the Court of Appeal concluded (at para. 37) that:
[A]pplying the common sense inference where there is no evidence of bolus drinking in circumstances where the Crown is required to prove the negative (i.e., no bolus drinking) is simply an example of the Schwartz notion of an evidential burden… It does not involve attaching an onus of proof to the accused or the creation … of a presumption or deeming provision in the sense forbidden in Grosse. On that basis, it would be more straightforward, it seems to me, to refer to this evidentiary exercise as a shift in the practical evidentiary burden on the basis of which -- absent something to put bolus drinking in play -- an inference may (but not must) be drawn.
[18] Most recently in R. v. St. Onge Lamoureux, 2012 SCC 57, the Supreme Court of Canada considered the constitutional validity of the statutory presumptions in s.258(1)(c) and 258(1)(d.1) of the Criminal Code. While those provisions are not at issue in the present case because more than two hours passed between the time of the alleged offence and that of the test, the Supreme Court did comment on the scenario in which more than two hours had passed, and confirms that even in these circumstances without the statutory presumption of identity the accused might be required to point to evidence that puts the bolus drinking defence into play:
[95] This conclusion can best be understood by considering the situation that arises in a case in which the prosecution cannot rely on the presumption of identity established in s. 258(1)(d.1), where, for example, more than two hours passed between the time of the alleged offence and that of the test. In such a case, an expert will take the blood alcohol level of the accused at the time of the test and use it to try to calculate retroactively what that level would have been at the time when the accused was pulled over. To do this, the expert must make certain factual assumptions, for example, that the accused did not consume a large quantity of alcohol within approximately one half hour before the alleged offence (in other words, that a portion of the alcohol the accused consumed had already been absorbed when he or she was pulled over), or between the time when he or she was pulled over and that of the test. If nothing in the evidence makes it possible to cast doubt on the expert’s assumptions, the court may make a deduction, based on common sense, that a person will not generally ingest large quantities of alcohol immediately before driving or while driving, or after being pulled over by the police (R. v. Paszczenko; R. v. Grosse; R. v. Hall; R. v. Bulman (emphasis added, citations omitted).
[96] In sum, even without the presumption of identity, the accused might be required to raise a doubt about his or her unusual alcohol consumption if nothing in the evidence indicates that the expert’s assumptions are erroneous…
[19] Finally, the Supreme Court confirms that a reasonable doubt about bolus drinking generally requires the accused to point to evidence that it actually occurred. The Court stated (at para. 174):
In my opinion, a doubt about the presumptions of identity based on bolus or intervening drinking would be speculative, absent evidence supporting the fact that one or the other of those scenarios had actually occurred. I note that the Ontario Court of Appeal has ruled in several cases that triers of fact are entitled to draw an inference that “normal people do not consume large quantities of alcohol shortly before, or while, driving”, in the absence of evidence putting in doubt the soundness of drawing this inference in a particular case…
Reply vs. Re-opening
[20] All of this goes to the point that while the Crown has the onus of proving a lack of bolus drinking, it does not have to present evidence in its case in chief to prove no bolus drinking, but may rely on the inference that “normal people do not consume large quantities of alcohol shortly before … driving”. In the present case, there was no evidence in the Crown’s case to support bolus drinking, and the Crown had no basis to anticipate a bolus drinking defence. In these circumstances, the Crown’s request for an adjournment to call the toxicologist to reply to the defence evidence of drinking a 500 mL “tallboy” of beer within fifteen minutes of driving “arises out of the defence’s case” and is therefore properly classified as reply evidence rather than an attempt to re-open its case.
[21] This classification is significant because the Crown faces a much higher hurdle when it seeks to re-open its case. In R. v. S.G.G., 1997 CanLII 311 (SCC), [1997] 2 SCR 716, the Supreme Court of Canada set out various principles governing an application to re-open the Crown’s case, indicating that the court’s discretion to permit the Crown to re-open narrows as the trial proceeds:
[29] The decision of a trial judge to allow the Crown to reopen its case at any time prior to a verdict is discretionary, and as a result will generally be accorded deference. However, that discretion must be exercised judicially, and in the interests of justice...
[30] The ambit of a trial judge’s discretion to allow the Crown to reopen its case becomes narrower as the trial proceeds because of the increasing likelihood of prejudice to the accused’s defence as the trial progresses. During the first stage, when the Crown has not yet closed its case, the trial judge’s discretion is quite broad. At the second stage, which arises when the Crown has just closed its case but the defence has not yet elected whether or not to call evidence, the discretion is more limited. Finally, in the third phase ‑‑ where the defence has already begun to answer the Crown’s case ‑‑ the discretion is extremely narrow, and is “far less likely to be exercised in favour of the Crown”. The emphasis during the third phase must be on the protection of the accused’s interests... In the instant appeal, the Crown sought to reopen the case in the third phase of the trial after the case for the defence had closed.
(see also R. v. F.S.M. [1996] O.J. No. 3536 at para. 33 (C.A.))
[22] It appears from the trial judge’s statements that he viewed the Crown’s request to call reply evidence as a request to re-open the Crown’s case after the case for the defence had closed. If the Crown’s request was properly classified as an application to re-open its case there would be no basis to interfere with the trial judge’s exercise of discretion in dismissing the application.
[23] But the cases do distinguish between reopening and reply or rebuttal evidence. It is “the rules of the adversarial process that justify the admission of the reply evidence”, in contrast, reopening is a “departure from the normal rules of the adversarial process”. In S.G.G. the Supreme Court stated (at paras. 39 and 40):
Applications to adduce rebuttal evidence and to reopen the case are “close cousins”, but not “identical twins”…Rebuttal evidence is properly admissible where the matter addressed arises out of the defence’s case, where it is not collateral, and generally where the Crown could not have foreseen its development…With rebuttal evidence it is the rules of the adversarial process that justify the admission of the reply evidence. In an application to reopen, the Crown is required to establish that the evidence is material to an issue that is properly part of the Crown’s case. In order to succeed, the Crown must also explain why the evidence was not led earlier and must justify this departure from the normal rules of the adversarial process.
It is clear that some of the same reasons for limiting the admissibility of rebuttal evidence should apply to an application to reopen, most particularly where the reopening is sought during the third phase of the trial. The same types of prejudice are likely to arise. With rebuttal evidence, the prejudice is alleviated in situations where the evidence is properly admissible because the matter addressed arises from the case presented by the defence and could not have been foreseen by the Crown. In these circumstances, it cannot be said that the accused has put forward a defence without knowing the full case to be met, since the matter dealt with in rebuttal must have arisen out of the evidence put forward by the defence. However, reopening is different from rebuttal. As a result, it may not be possible on an application to reopen to overcome the prejudice to the accused by demonstrating that the Crown could not have foreseen the appearance of the new evidence. (emphasis added)
[24] The distinction between reopening and reply evidence was also referenced by the Ontario Court of Appeal in R. v. F.S.M., supra. While F.S.M. primarily considered the principles applicable to Crown reopening, the Court distinguishes a previous case by noting that it “involved reply evidence. The evidence tendered by the Crown was relevant to an issue raised during the defence… Where evidence is proper reply evidence, it is irrelevant whether the Crown was aware of the evidence prior to completing its case”. (para. 47)
[25] The leading case dealing with Crown reply evidence is R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466. In that case, the Supreme Court set out the following principles in relation to the calling of rebuttal evidence in criminal cases:
[15] At the outset, it may be observed that the law relating to the calling of rebuttal evidence in criminal cases derived originally from, and remains generally consistent with, the rules of law and practice governing the procedures followed in civil and criminal trials. The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings; in a criminal case the indictment and any particulars: …This rule prevents unfair surprise, prejudice and confusion which could result if the Crown or the plaintiff were allowed to split its case, that is, to put in part of its evidence‑‑as much as it deemed necessary at the outset‑‑then to close the case and after the defence is complete to add further evidence to bolster the position originally advanced. The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response.
[16] The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated. But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the Crown's case which could have been brought before the defence was made. It will be permitted only when it is necessary to insure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other. (emphasis added)
[26] Accordingly, the right of the Crown to call reply evidence after the defence has raised a new matter or defence is broader than the narrow discretion to permit the Crown to reopen its case. Another example of this principle is the case of R. v. W. (A.), (1991), 1991 CanLII 7125 (ON CA), 3 O.R. (3d) 171 (C.A.), where the Ontario Court of Appeal explained that the Crown may call rebuttal evidence to respond to a matter put into issue by the defence, for example, to “refute the specific defence advanced by the [accused] in his testimony”. In W.(A.) the accused raised the question of whether he was, for medical reasons, physically unable to obtain and maintain an erection throughout the relevant period. In agreeing that the Crown was permitted to call reply evidence, the Court of Appeal explained:
The evidence of the appellant's medical condition as it related to his physical ability to obtain an erection was of marginal relevance during the case for the Crown, but of considerable significance following the evidence given by the appellant. As such, the trial judge was entitled, in the exercise of his discretion, to admit reply evidence on the point, if the admission of such evidence would not work an unfairness on the appellant…
I also reject the suggestion that because the Crown had some indication that the appellant would advance physical incapacity as a defence that the Crown was required to lead any evidence it had to counter that position as part of its case. That proposition is contrary to this court's decisions in R. v. Campbell, supra, and R. v. Stevenson, supra, and would, in my view, if accepted, prolong and potentially confuse trials by requiring that the Crown lead evidence on matters which, in the end, may have virtually no significance in a particular case. I also note that it is by no means clear that the Crown knew for certain that the appellant would testify or exactly what the nature of his defence would be.
[27] Most recently, in R. v. R.D., 2014 ONCA 302, the Court of Appeal allowed an appeal where the trial judge erred in ruling, on a pre-trial motion, that the Crown was barred from presenting alibi evidence in reply to refute the defence’s alternate suspect theory. Reiterating the principles set out in W.(A.), the Court stated (at paras. 17 – 20):
However, it is well-established that the general rule regarding order of proof is not an absolute bar to the introduction of reply evidence by the Crown. Crown rebuttal is permitted when necessary to ensure that each party has had an equal opportunity to hear and respond to the full submissions of the other: Krause, at p. 474. Accordingly, the Crown is permitted to call reply evidence not only when the defence has raised some new matter or defence which the Crown could not have reasonably anticipated and with which it had no opportunity to deal, but also when an aspect of the Crown’s case has taken on added significance as a result of the defence case…
Similarly, because the rule regarding order of proof is designed to prevent the Crown from splitting its case, it does not prevent the Crown from introducing evidence in reply to the defence case that is not in and of itself probative of guilt. Reply evidence can be adduced to refute a specific defence advanced by the accused…(citations omitted). As Doherty J.A. recognized in W. (A.), at p. 181, the Crown is entitled to introduce this kind of reply evidence regardless of whether it could have anticipated the position of the defence…
Inherent in all the various formulations of the test for reply evidence is the significance of the case actually called by the defence. Whether or not the Crown is entitled to call reply evidence depends in large measure on the evidence adduced and arguments raised by the defence. The Crown’s entitlement to lead reply evidence turns in part on whether the defence has raised a new matter or defence, or tendered evidence that caused the Crown’s case to be viewed in a new or different light. In other words, only with the benefit of the defence evidence can the admissibility of reply evidence be assessed. (emphasis in original)
[28] In R.D., the Court indicated (at para. 23) that the proper question is whether the defence would be caught by surprise by the evidence that the Crown intends to lead in reply. The Court notes that the defence cannot be surprised “by reply evidence that is directed solely at an issue put in play by the defence case.” (para. 19).
[29] In the present case, the Crown did not know that the issue of bolus drinking would be put into play until the defence led evidence of bolus drinking. There was nothing in the Crown’s evidence to put this issue in play and, until the defence led evidence of chugging the tallboy of beer, the Crown could not have reasonably anticipated that this would be a defence. As the Supreme Court of Canada stated in St.-Onge Lamoureux, supra, (at para. 90), “It is the accused — and not the prosecution — who knows when he or she drank, and how much.” Until the respondent testified as to her drinking pattern, the toxicologist, even if called as part of the Crown’s case, would have nothing upon which to base his calculation.
[30] It is clear from cases like Bulman, Paszczenko, and St.-Onge Lamoureux, that the courts do not expect the Crown to lead evidence to prove no bolus drinking as part of its case-in-chief. Accordingly, where the issue of bolus drinking is put in play by the defence introducing evidence that satisfies its evidential burden to raise the issue, the Crown’s rebuttal evidence is properly classified as reply evidence, not reopening the Crown’s case. This is particularly so where, as in the present case, the Crown’s proposed reply evidence does not challenge the veracity of the accused’s evidence of how much she drank, but intends to provide expert evidence that calculates what impact that “last drink” would have on her BAC at the time of testing. Given the statement in the toxicologist’s certificate that “a calculation to assess the impact of a large quantity of alcohol on the projected BAC can be performed if requested”, the intention to lead this evidence in reply to the bolus defence can hardly come as a surprise to the defence.
[31] In refusing the adjournment, the trial judge noted and was critical of the fact that the Crown had decided not to have the toxicologist present in Court to address the bolus drinking defence in the event that it was raised. This criticism appears to be inconsistent with the intent of s. 258(1)(g) of the Criminal Code which provides that breath test evidence and the results obtained may be proved via certificate provided that the requirements of that provision are met. In his text “Impaired Driving in Canada”, supra, Justice Kenkel states that the purpose of this provision is “to avoid the necessity of having a qualified breath technician testify in every case…” There would be little value in this provision if such technicians had to be present in court on the off chance that they would have to testify if the accused raised a bolus defence. As the Crown states in its factum: “Given there are often (if not usually) multiple Over 80 trials on any given day in Provincial Court …it makes little sense to have toxicologists attend every day to sit idly on the chance that a bolus defence is raised.”
[32] The Crown raised an additional ground of appeal, that is, that the trial judge erred in finding the respondent not guilty of impaired operation. In my opinion, the trial judge’s reasons with regard to this charge are unrelated to the issue of the reply evidence, and I see no basis for interfering with his brief reasons for concluding that the Crown had not proven this allegation beyond a reasonable doubt.
Conclusion
[33] In my view, the trial judge applied the wrong legal principles when he considered the Crown’s request as a request to re-open its case rather than as a request to call reply evidence to respond to a new matter “put into play” by the defence. The trial judge misinterpreted the law regarding reply evidence. He treated the Crown’s request as a “departure from the normal rules of the adversarial process”, when the rules of the adversarial process required that the Crown be given a fair opportunity to respond to this defence.
[34] While a trial judge’s exercise of discretion in relation to the admission of further evidence or granting an adjournment attracts deference, the discretion must be exercised in consideration of the correct legal principles. In the present case, the trial judge applied the wrong legal principles to the request to call reply evidence. I am satisfied that the Crown has discharged its burden of demonstrating that the trial judge’s error in this regard had a material bearing on the acquittal. (R. v. R.D., supra, at para. 11). The effect of the error seriously undermined the Crown’s case and left the trier of fact with an incomplete or distorted picture of whether the “last drink” could have caused her BAC to rise from below 80 mL to over 235 mL in the interim between driving and testing.
[35] Accordingly, the appeal is allowed, the acquittal is set aside, and a new trial is ordered.
Mr. Justice R.E. Charney
Released: July 28, 2015
[^1]: In medicine, a bolus (from Latin bolus, ball) is the administration of a discrete amount of medication, drug or other compound in order to raise its concentration in blood to an effective level. The defence is also, perhaps more accurately, referred to as the “last drink defence”.