Court File and Parties

Court File No.: 13A10517 Date: 2017/03/16 Superior Court of Justice - Ontario

Re: R. v. David Baron

Before: Valin J.

Counsel: M. Karimjee, for the Crown, Appellant G. Barnes, for the Accused, Respondent

Heard: March 15, 2017

Endorsement

[1] On April 17, 2013, at 12:37 a.m., the police stopped the respondent’s motor vehicle after observing the vehicle travelling at a high rate of speed. The vehicle did not have night lights on and had made an improper turn.

[2] The police officer who made the traffic stop smelled a strong odor of an alcoholic beverage coming from the respondent’s mouth, and observed that the respondent’s speech was slightly slurred. The respondent admitted to having consumed a couple of beers at a hockey game about three hours before he was stopped.

[3] The breath readings, taken from the respondent at the police station more than two hours after the offence was alleged to have occurred, were 103 and 98 milligrams of alcohol in 100 millilitres of blood. The respondent was charged with operating a motor vehicle when his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[4] The learned trial judge acquitted the respondent on the charge of driving over 80.

[5] This is an appeal from that decision. The ground of appeal is that the trial judge failed to appreciate that the respondent had a practical evidentiary burden concerning bolus drinking, and nevertheless acquitted the respondent based on conjecture that was not supported by the evidence.

[6] The trial judge found that there was no open alcohol in the respondent’s motor vehicle. There was no evidence on the record raising the issue of bolus drinking by the respondent. The trial judge described the lack of evidence as a “complete blank”.

[7] Bolus drinking describes the consumption of large quantities of alcohol immediately or shortly before driving. The onus is on the Crown to prove a negative, namely that the accused has not engaged in bolus drinking. A toxicologist’s report is based on the premise that there has been no bolus drinking. In the absence of evidence on the record to suggest the contrary, the Ontario Court of Appeal has ruled that the trier of fact may resort to a common sense inference that people do not normally ingest large amounts of alcohol just prior to, or while, driving. R. v. Paszczenko 2010 ONCA 615, 103 O.R. (3d) 424, at paras. 27-29. In such circumstances, the toxicologist’s report may be relied upon as an accurate representation of a person’s blood alcohol content at the time of the occurrence.

[8] The trial judge correctly pointed out that, in the absence of evidence to the contrary, there is no presumption that the respondent is deemed not to have consumed large quantities of alcohol. The burden remains on the Crown to prove blood alcohol content at the time of the offence. However, when breath samples are taken more than two hours after the alleged offence, the Court of Appeal has ruled that the respondent has a “practical evidentiary burden” to provide some evidence to refute the common sense inference to which I have referred. Ibid, at paras. 32 & 34. In other words, the respondent must point to some evidence to indicate that bolus drinking is a live issue. This court is bound by that ruling.

[9] Where there is an error in law, the standard of review is correctness. In order to set aside a decision of a trial judge who has made an error in law, the decision must be clearly wrong.

[10] Given the learned trial judge’s finding that there was no evidence of bolus drinking on the record, and his failure (a) to apply the common sense inference that people do not normally ingest large amounts of alcohol just prior to, or while, driving and (b) to apply a practical evidential burden on the respondent in those circumstances, the decision to acquit the accused is an error in law. In the face of the Court of Appeal’s decision in Paszczenko, the decision was clearly wrong.

[11] The appeal is allowed. The acquittal of the respondent is set aside.

[12] The Crown invited me to enter a conviction. I am not inclined to do that. The respondent did not testify at the trial which resulted in this appeal. Given this ruling, he may wish to consider whether he will testify, if that opportunity is available, at a re-trial.

[13] This matter is therefore remitted to the Ontario Court of Justice for a new trial.

The Honourable Mr. Justice G. Valin Date Released: March 16, 2017