Court File and Parties

COURT FILE NO.: CR-15-3521 DATE: 20170301 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Shaun Lapoint Appellant

Counsel: Bryan Pillon, for the Crown Frank Miller, for the Appellant

HEARD: February 2, 2017

On appeal from the judgment of Justice Gregory Campbell of the Ontario Court of Justice on October 28, 2015.

Reasons on Summary Conviction Appeal

Carey J.:

[1] The issue in this appeal revolves around whether the trial judge erred in allowing the Crown an adjournment to call the toxicologist to respond to evidence of bolus drinking. For reasons set out below, I have concluded that the trial judge acted correctly in the circumstances of this case in allowing the Crown to call reply evidence after the defence had begun its submissions.

[2] Mr. Lapoint was charged with the offence of operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal maximum contrary to s. 253(1) (b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. As the two samples were taken outside of two hours from the driving, the Crown relied on the expert report of toxicologist Elizabeth Hirt to establish the appellant’s blood alcohol level at the time of driving. This opinion was dependant on a number of usual assumptions including that there was no consumption of a “large amount” of alcohol consumed within 15 minutes of the driving. The alcohol influence report in this case, which was not tendered into court at trial, indicated that the appellant had indicated he had only two beers in the course of an afternoon at the Detroit Tigers game in Detroit. The appellant did not request the toxicologist to be made available for the trial for the purpose of cross-examination.

[3] After the defence evidence, the Crown was asked if it had reply evidence. The Crown replied that he “had no reply” and he wished to hear the defence submissions. Upon hearing the defence position that the Crown could not rely on the toxicologist’s report, the Crown made submissions including reliance upon the procedure set out in s. 657.3 of the Criminal Code. The Crown ultimately sought an adjournment to allow the attendance of the toxicologist. The adjournment was granted and resulted in an adjournment of several months. When the toxicologist attended, she gave evidence indicating that even with the bolus drinking described by the appellant, the appellant’s readings would have been in excess of the legal limit and the appellant was convicted.

Position of the Parties

[4] The appellant’s position is that the trial judge re-opened the case after both sides had finished, splitting its case, to the prejudice of the appellant. He further submits that the onus was on the Crown to negate the effect of bolus drinking in its case or in cross-examination of the appellant. He says the Crown had evidence of the drinking pattern in the appellant’s statement contained in the alcohol influence report and could have confronted the appellant with it. He further states that this was not the appropriate case for reliance upon the curative proviso in s. 822(7) (b) of the Criminal Code.

[5] The respondent Crown’s position is that the evidence called after the defence closed its case was proper reply. It states that the Crown had no way of knowing that the defence would be calling and relying upon evidence of bolus drinking. The appellant’s statement in the alcohol influence report was taken when he was under the influence and had not been the subject of a voluntariness admission or finding. It argues that any potential prejudice to the appellant of the reply evidence was checked by the months of notice afforded by adjournment to allow the evidence as well as the right of surrebuttal which was afforded him. If the trial judge erred in the principles applied in granting the adjournment to afford the calling of reply evidence, then this is a proper case to apply s. 822(7) (b).

Analysis

[6] Section 657.3 of the Criminal Code headed Expert Testimony reads in part as follows:

(1) In any proceedings, the evidence of a person as an expert may be given by means of a report accompanied by the affidavit or solemn declaration of the person, setting out, in particular, the qualifications of the person as an expert if (a) the court recognizes that person as an expert; and (b) the party intending to produce the report in evidence has, before the proceeding, given to the other party a copy of the affidavit or solemn declaration and the report and reasonable notice of the intention to produce it in evidence.

(2) Notwithstanding subsection (1), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration or report.

[7] I can find no error in the trial judge’s decision to allow the attendance of the toxicologist for reply evidence. It was open to the trial judge to conclude that the Crown was taken by surprise. The Crown ordinarily would have had the toxicologist available for cross-examination if requested or if one of the presumptions underlying the report was challenged. While an accused does not have to disclose his position, he should not be able to allow the report to go in unchallenged while planning to challenge the underpinnings of that report. The Crown should be able to rely on the procedures set out in the Criminal Code for experts’ reports.

[8] Here, neither the Crown or defence had the CFS toxicologist at court in Windsor for the trial to explain the effect of the bolus drinking. It was agreed on this appeal by the appellant that the Crown’s initial indication of no reply evidence being called was subject to hearing the defence submissions. In any event, the Crown did not have the reply evidence at hand. To accept the appellant’s position would be to create an unfair playing field. Indeed, the defence argued in their initial submissions prior to the Crown adjournment request that the charge be dismissed because the factual assumptions of the report had been undermined by the appellant’s evidence.

[9] This is a similar situation to the facts in R. v. Carney, 2015 ONSC 4801. In that case, however, the trial judge did not allow reply evidence and the accused was acquitted. Paragraphs 29-30 of the decision are particularly applicable here:

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.

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.

[10] I accept the correctness of the ruling in that case. In my view, the trial judge would have committed reversible error here had he not acceded to the Crown’s request for an adjournment. I find no error in the judge’s reliance on the principles in [Brown v. Dunn (1893), 6 R. 69 (H.L.)] and his reference to concerns about “trial by ambush”. This was not a situation of the Crown splitting its case. The Crown could not call evidence on bolus drinking in an evidentiary vacuum. The alcohol influence report statement gave no indication of bolus drinking and had not been found to be voluntary. It is speculative what use could have been made of it in cross-examination.

[11] As well, s. 657.3(2) allows the court to require an expert to attend for examination or cross-examination in respect of the issue of proof of any of the statements contained in the solemn declaration or report. The trial judge was entitled to request the attendance of the toxicologist to clear up the ambiguity that arose about the term “large amount of alcohol”. Here, where the appellant was given an opportunity to call evidence in surrebuttal, he cannot be said to have suffered any prejudice by the toxicologist’s evidence being called in reply (R. v. Chaulk, [1990] 3 S.C.R. 1303, at para. 121).

[12] As I have concluded that the trial judge operated on correctly stated principles it is not a situation where s. 822(7) (b) is operable. If I am wrong in that conclusion, the s. 822(7) (b) proviso should apply as the result was the correct one.

[13] Accordingly, the appeal is dismissed. The stay of prohibition from driving is vacated and the driving prohibition is reinstated.

Original signed by “Thomas J. Carey” Thomas J. Carey Justice Released: March 1, 2017