R. v. Ali, 2015 ONSC 563
COURT FILE NO.: SCA 49/14
DATE: 20150126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CRYSTAL ALI
Lori Hamilton, for the Crown, Respondent
Paul Calarco, for Crystal Ali, Appellant
HEARD: January 15, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT on summary conviction appeal
[1] Ms. Ali, the Appellant, apparently enjoys late night – or early morning, depending on one’s point of view – drinking and bowling. On March 3 2012 Ms. Ali finished her shift at the Brass Rail, a strip club. She drank while working at the club. She left the Brass Rail at about 3:00 a.m. and met her friend at a bowling alley. She drank and bowled. The police stopped her as she drove home. She was charged with “over 80”. At her trial she testified that she engaged in “bolus drinking”, meaning she drank shortly before she drove home. Since alcohol is not absorbed immediately into the bloodstream, a person may raise a reasonable doubt by indicating that he or she had engaged in such drinking to explain later high breathalyser readings – if she is believed. The trial judge believed Ms. Ali but still found her guilty. Ms. Ali appealed. On January 14, 2015, I allowed the appeal and entered an acquittal. I then indicated that my reasons would follow. These are my reasons.
FACTS
[2] On March 3 2012 Constable Vanderburgh clocked Ms. Ali’s car going 75 km/h in a 50 km/h zone on Kipling Street in Toronto. It was about 7:04 in the morning. He pulled her over about two minutes later and approached the driver. Here bowling friend was a passenger in the car. Ms. Ali told the officer that she had been bowling. She also said that she had had “a little” to drink. Constable Vanderburgh then made a roadside screening demand. Ms. Ali made several attempts to provide a suitable breath sample. Finally at 7:34 am she provided one and registered “fail”. She was then arrested and taken to Traffic Services, where she provided two samples of her breath for the Intoxilyzer machine. The first sample indicated that she had a blood alcohol concentration, or BAC, of 181 mg of alcohol per 100 ml of blood; the second sample indicated that she had a BAC of 177 mg of alcohol per 100 ml of blood. The police charged her with “over 80”.
[3] Because the samples were taken outside of the two-hour window, the Crown could not rely on the presumption of identity in s. 258 of the Criminal Code. As a result, the Crown had to rely on the evidence of an expert witness. An affidavit from Inger Burgya, a forensic toxicologist, was filed. The report stated that based on the Intoxilyzer readings, the gender, height, weight, and age of Ms. Ali, her projected BAC at the time of the incident (between 6:05 am and 7:05 am) was 175 to 240 mg of alcohol per 100 ml of blood. The expert made certain assumptions, including an assumption that there had been no consumption of large quantities of alcohol within approximately 15 minutes prior to the incident. According to the expert report, a “large quantity of alcohol” is defined primarily by the weight and gender of the individual.
[4] Constable Vanderburgh was cross-examined as to the distance from the Bowlerama at Kipling and Dundas. He said it took about ten minutes to drive from there to the location where he stopped Ms. Ali.
[5] Ms. Ali testified that she probably had two drinks while at work. She usually drank while working. She left the Brass Rail at about 4:00 am, and bowled with a friend until about 6:00 am. Her friend had a bottle of vodka and they drank together after bowling. He had vodka and orange juice. She had vodka and water. She said that she drank at least two or three drinks of vodka and water between about 6:15 am and about 6:50 am, when she left. Each drink was at least two ounces of alcohol. She left right after her last drink. On her evidence, the police stopped her about 15 minute after she consumed her last drink.
TRIAL AND JUDGMENT:
[6] The Crown called three police officers as witnesses. Ms. Ali testified. The Crown did not (as it sometimes does) call the expert in reply to deal with the evidence of bolus drinking. A reading of the transcript indicates that the proceeding was conducted with great efficiency by experienced Crown and defence counsel, and presided over with great fairness by the trial judge.
[7] The trial judge identified the central issue as the reliability of the expert’s opinion. She noted that the key point in the trial was this:
What is being contested is part of the grounds for this opinion being no consumption of large quantities of alcoholic beverages within approximately 15 minutes before the incident.
[8] Her Honour then noted that Ms. Ali was a credible witness but found that she could not rely on her description of the amount of alcohol consumed and when it was consumed. Accordingly, she convicted Ms. Ali.
ISSUES AND ANALYSIS
[9] Mr. Calarco, on behalf of Ms. Ali, raised three issues. He argued that the trial judge erred by reversing the onus of proof; failed to recognize the difference between an assumption that must be proven by the Crown and a presumption that may be relied on by the Crown; and that the trial judge misapprehended the evidence.
[10] This was what the critical passage in the trial judge’s reasons:
Now, the defendant, Ms. Ali, when she testified was very honest about the fact that she really could not remember exact amounts and exact times and she really was giving approximate amounts and approximate times to the best of her recollection. She did not try to mislead the Court in any way and in that sense she was a credible witness. But her evidence as to the quantities consumed and when they were consumed is not concrete enough to raise a reasonable doubt in my mind as to the assumption of the expert that there was no consumption of alcohol in the 15 minutes prior to the incident.
[11] Ms. Hamilton, for the Crown, very fairly conceded that on its face it appears that the trial judge misapplied the burden. Ms. Hamilton argued that when read as a whole, however, the trial judge’s reasons do not show that she reversed the onus of proof or misapplied the test in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742
[12] Due allowance must be made for a trial conducted in the Ontario Court of Justice. Judges of that court operate under tremendous pressures. Lists are always long, time is always short, and matters are always pressing. Judges of that Court are highly skilled at delivering timely and fair justice and in order to do so they must often deliver oral reasons at the conclusion of the evidence. That is why it is important to evaluate reasons for judgment in the overall context of the decision and not microscopically analyze the individual parts. In other words, even if a trial judge makes a factual or legal error it may not be a fatal.
[13] Nonetheless, I must respectfully disagree with the Crown. In this case the trial judge appears to have reversed the burden of proof by requiring Ms. Ali to raise a reasonable doubt. She also appears to have misapprehended the evidence in a way that was central to the reasoning process.
[14] The expert report assumed that Ms. Ali had not engaged in bolus drinking. This was a safe assumption, given that it is open to a trial judge to draw the inference that people do not ordinarily engage in bolus drinking: R. v. St. Onge, 2012 SCC 57, [2012] 3 S.C.R. 187 at para. 174; R. v. Hall (2007), 83 O.R. (3d) 641, 2007 ONCA 8, [2007] O.J. No. 49 at para. 20. That said, the onus was on the Crown to prove the underlying facts of the expert report: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, 68 C.C.C (2d) 394. The trial judge indicated that Ms. Ali’s evidence had not raised a reasonable doubt as to the expert’s assumption. There may have been an inference available to the trial judge that people do not ordinarily engage in bolus drinking, but there was no legal burden on Ms. Ali to prove it. This is why the distinction between an assumption (which the Crown is required to prove) and a presumption (which the accused must disprove, such as the presumption of identity) is important. The legal burden never shifts from the Crown – except where there is a statutory presumption, which was not the case here. The distinction between an assumption and a presumption was explained in R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785, [1996] O.J. No. 1840 (C.A.). That case applies to this one.
[15] In Grosse the accused was charged with “over 80”. Two samples of his breath were taken showing 140 mg of alcohol per 100 ml of blood. The samples were taken outside of the two-hour window, so the Crown could not rely on the “presumption of identity”. The Crown called a forensic toxicologist as an expert witness. The expert testified that the accused would have had a blood alcohol content in the range of 140 to 160 mg of alcohol per 100 ml of blood. The expert’s opinion was based on the assumption that the accused had not engaged in bolus drinking. The expert said that if the accused had engaged in bolus drinking he would have had to consume an enormous quantity of alcohol shortly before he drove. The accused did not testify. Thus, although there was an assumption there was no actual evidence one way or the other about bolus drinking. The trial judge found that it was “preposterous” to suppose that bolus drinking in the quantities described by the expert had occurred. He convicted the accused. The summary conviction appeal court allowed the appeal.
[16] The Crown argued in the Court of Appeal that there was an onus on the accused to show that he or she had not engaged in bolus drinking since that would information would have been uniquely within the knowledge of the accused. The Court rejected that argument. A party must always prove the facts underlying an expert’s report. It was, therefore, for the Crown to disprove bolus drinking. Moreover the Court found that to accept the Crown’s argument would create a common law presumption in the face of a detailed statutory scheme created by Parliament that had other important presumptions – but not this one. The Court of Appeal did, however, find that it was open to the trial judge to find that the accused had not engaged in bolus drinking based on circumstantial evidence and on common sense:
The trial judge was also entitled to consider that it was inherently unlikely that the respondent, in the space of less than 30 minutes, before embarking on his trip home to Brampton would consume the equivalent of nine ounces of alcohol. This was not a matter of taking judicial notice of drinking patterns but merely applying common sense as to how ordinary people behave.
[17] See also Hall at para. 11.
[18] In my very respectful view, the trial judge fell into one of the errors described in Grosse and confirmed in Hall. It was not up to Ms. Ali to raise a reasonable doubt about the assumptions of the expert. It was up to the Crown to prove beyond a reasonable doubt that Ms. Ali did not engage in bolus drinking: Hall at para. 21.
[19] As the Court of Appeal pointed out in Hall, Grosse has been modified to some extent by R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874: Hall at para. 25. That modification has no application here since Ms. Ali testified.
[20] Unfortunately, the error was also related to a misapprehension of the evidence. In this case, the trial judge accepted that Ms. Ali was a credible witness but found that her evidence was not reliable enough in terms of the amount of alcohol she drank. However, the trial judge then went on to say:
I have no evidence on that point, other than that I know the officer directed his mind to it and considered it before he took the breath tests and so that he had to grounds for taking the test, so I am not prepared to speculate.
[21] Trial judges are entitled to great deference where it comes to making findings of fact. Furthermore, even if there was a factual error there is no basis for an appeal court to intervene unless the error was central to the judge’s reasoning process: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193, [1995] O.J. No. 639 (C.A.) at para. 93.
[22] It is true that Ms. Ali was somewhat vague about the amount of alcohol that she consumed while she was working, in that she testified that she “probably” had two drinks while working at the Brass Rail but could not recall which customer bought them for her or when, in the course of her shift, she drank them. The key evidence about bolus drinking was, however, reasonably clear. Ms. Ali gave evidence about the amount of alcohol she consumed at the bowling alley and when she consumed it. Ordinarily that error might be a harmless one, but in this case it was central to the trial judge’s reasons. Furthermore, it is critical that the trial judge herself found Ms. Ali to be a credible witness. It is true that the trial judge was not required to deal with every piece of evidence or to set out every legal principle. That said, once the trial judge found that Ms. Ali was an honest witness it was very important to analyze the evidence of drinking at the Brass Rail as distinct from the evidence of drinking at the bowling alley. Unfortunately the trial judge did not do this, other than to say that there was “no evidence” of drinking in the time prior to the encounter between Ms. Ali and the police. That was incorrect, because Ms. Ali had given this evidence – and the trial judge found her to be credible overall.
[23] Thus, in my view, and with great respect to the trial judge, these errors demonstrate one of those rare instances where a misapprehension of the evidence requires appellate intervention.
DISPOSITION
[24] As I noted at the beginning of these reasons, the appeal is allowed. Given the finding of the trial judge that Ms. Ali’s evidence was credible, it is appropriate to enter an acquittal.
R.F. Goldstein J.
Released: January , 2015
CITATION: R. v. Ali, 2015 ONSC 563
COURT FILE NO.: SCA 49/14
DATE: 20150126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CRYSTAL ALI
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
R.F. Goldstein J.