Court File and Parties
COURT FILE NO.: CR-15-40000055-00AP DATE: 20160512 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – IKRAM FREED Appellant
Counsel: Sunita Malik, for the Crown Jacob Stilman, for the Appellant
HEARD: April 19, 2016
Reasons for Decision
[On Appeal from the Judgment of Justice J. Grossman of the Ontario Court of Justice, Dated May 28, 2015]
B. P. O’Marra, J.
[1] The trial judge found that the Crown had proven impaired operation of a motor vehicle and operating a motor vehicle having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(a) and (b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. A conviction was entered on the impaired operation charge and the other count was stayed pursuant to the Kienapple principle.
[2] The appellant has advanced several grounds of appeal. One of them is dispositive and requires that the appeal be allowed. A brief overview of the evidence will suffice to illustrate the issue.
[3] The appellant was arrested for impaired operation almost one hour after the last time of driving. He provided two samples of his breath pursuant to a lawful demand. The results of the readings were 120 milligrams and 110 milligrams. The first breath sample was taken more than two hours after the last time of driving. Therefore, the Crown was not entitled to the presumptions in s. 258(1)(c) of the Criminal Code.
[4] The Crown called a forensic toxicologist to provide an opinion with respect to the projected blood alcohol of the appellant at the time of driving. She testified that, based on the readings obtained and elimination factors, the blood alcohol level at the time of driving would be within a range of 115 to 160 milligrams of alcohol in 100 millilitres of blood. She also testified that, in that range, a person’s ability to operate a motor vehicle would be impaired.
[5] In cross-examination, the toxicologist was asked to consider the impact on her opinion if the appellant had consumed a significant amount of alcohol after driving and before the breath tests. The trial judge summarized her response as follows at para. 17 of his reasons:
Ms. Gorczynski agreed her projections were only valid if there was no consumption of alcoholic beverages after the incident and before the breath tests. If there was consumption, particularly two 250 ml. size bottles of 13% alcohol by volume wine, she agreed that would significantly impact on her opinion. She stated based on this proposed new information the revised projected BAC would range between 35 and 65 milligrams of alcohol in 100 millilitres of blood. In such circumstances, in her view, with this range, he would not be impaired.
[6] The appellant testified that he had consumed a considerable amount of alcohol after the driving and before he was arrested. The trial judge rejected his evidence on this and other issues. At para. 30 of his reasons, he indicated the following:
Seventh, opportunity to corroborate his testimony resulted in no corroboration. The friend who he said could tell us how much he had to drink and with whom he still keeps in touch was not available. The receipt from the LCBO confirming his purchase of the wine bottles that very evening at about 6:00 p.m. was not available. The receipt for how much he drank was not produced.
Analysis
[7] The opinion of the forensic toxicologist was a critical part of the Crown’s case. The weight to be assigned to an expert’s opinion depends on the extent to which the underlying factual assumptions are proven based on properly admissible evidence: see R. v. Abbey, [1982] 2 S.C.R. 24.
[8] The trial judge was entitled to reject the evidence of the appellant in applying the principles set out in R. v. W.(D)., [1991] 1 S.C.R. 742. However, there was no onus on the appellant to prove that he consumed alcohol after driving and before the breath tests. In rejecting his evidence, the trial judge referred to a lack of corroboration. That imposed an unwarranted obligation on the appellant in assessing his evidence on that critical issue. On that basis, the appeal must be allowed.
Result
[9] The appeal as to conviction is allowed. A new trial is ordered before a different justice of the Ontario Court of Justice.
B. P. O’Marra, J.