R. v. Law, 2017 ONSC 6835
CITATION: R. v. Law, 2017 ONSC 6835
COURT FILE NO.: CR-15-04167-AP
DATE: 20171115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
LORRAINE LAW
Appellant
Bradley Juriansz, for the Crown
Peter Lindsay, for the Appellant
HEARD: August 4, 2017
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
MCKELVEY J.:
Introduction
[1] The appellant Lorraine Law was convicted on April 1, 2016 of “impaired driving” and “driving over 80”. She has appealed her conviction and seeks either an acquittal or alternatively a new trial. At trial the Crown relied on the expert report of Galiena Tse who is a toxicologist at the Centre of Forensic Sciences. In a letter of opinion dated December 2, 2015 which was admitted at trial, Ms. Tse referred to blood alcohol readings which were obtained at 3:51 a.m. and 4:14 a.m. of 257 and 265 milligrams of alcohol in 100 millilitres of blood. Given the information provided to her that the incident in question occurred between approximately 2:20 a.m. and 2:31 a.m., Ms. Tse estimated the projected blood alcohol concentration of the appellant at or between approximately 2:20 a.m. and 2:31 a.m. at 250 to 280 milligrams of alcohol in 100 millilitres of blood. Her opinion was subject to her assumption that the appellant did not consume “large quantities of alcoholic beverages within approximately 15 minutes prior to the incident”.
[2] The trial judge found there was sufficient evidence to establish there was no “bolus” drinking on the part of the appellant and that therefore the expert report of Ms. Tse was reliable “as the underlying assumptions have been proven”. The trial judge concluded that she was satisfied beyond a reasonable doubt that the Crown had proven the over 80 count. She rendered a conviction on both the over 80 count and the impaired driving. It is accepted that the conviction on the impaired charge was dependant on the report of Ms. Tse as well.
[3] On this appeal the appellant challenged the underlying assumption of no bolus drinking and the finding of the trial judge in this regard.
[4] For the reasons which follow, I have found that there is no basis to interfere with the trial judge’s decision. The appeal is therefore dismissed.
The Applicable Standard of Review
[5] The scope of appellate review on findings of fact made by a trial judge is very narrow. Findings of fact are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[6] In R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785, the Ontario Court of Appeal noted that the jurisdiction of a summary conviction appeal court judge to review the findings as to the sufficiency of evidence is limited. A summary conviction appeal court is not entitled to retry the case but to determine whether the verdict is unreasonable. This requires the appeal court judge to determine whether the trial judge could reasonably have reached the conclusion that the accused was guilty beyond a reasonable doubt. The test, therefore, is not whether the summary conviction appeal judge would have reached the same decision, but rather whether the trial judge’s decision was reasonable. Where evidence exists to support a factual inference, an appellate court will be hard pressed to find a palpable and overriding error. As noted by the Supreme Court in the Housen decision, it is open to an appellate court to find an inference of fact made by a trial judge is clearly wrong. However, deference is owed to a trial judge when it comes to assessing and weighing the evidence and in making factual inferences. It is not the role of appellate courts to second guess the weight to be assigned to various items of evidence. If there is no palpable or overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference drawing process is palpably in error that an appellate court can interfere with the factual conclusion.
Applicable Principles on the Issue of “Bolus” Drinking
[7] The assumption in Ms. Tse’s opinion about the absence of bolus drinking for a period of 15 minutes prior to the incident appears to be a standard provision in these expert reports and has been the subject of appellate review. The theory behind bolus drinking was outlined by the Ontario Court of Appeal in R. v. Paszczenko (2010), 2010 ONCA 615, 103 O.R. (3d) 424. At para. 39 of this decision the court notes that the effect of bolus drinking is to create a situation where the accused driver’s blood alcohol content may have been below 80 milligrams in 100 millilitres of blood at the time of the incident, yet still register “over 80” in a read back calculation done later because it was still rising at the time of the incident.
[8] In the Paszczenko case, the court found that there was a practical evidentiary burden on the accused to point to something in the evidence that at least puts the possibility of bolus drinking “in play”. Once the issue is “in play”, the onus is on the Crown to establish beyond a reasonable doubt that no bolus drinking occurred in accordance with the assumption made routinely by toxicologists in this type of case.
[9] It is clear that the trial judge properly understood the applicable legal principles to be applied in this case. In her decision she states,
As Justice Tuck-Jackson outlined in her decision in R. v. Jordaan, 2014 O.J. No. 6164 O.C.J. the ONCA in R. v. Paszczenko, R. v. Lima, supra, has expressly clarified that:
The Crown bears the persuasive burden to prove the absence of bolus drinking.
The Crown is entitled to rely upon the common sense inference that people do not normally ingest large amounts of alcohol just prior to, or while driving, and,
The defence bears a practical evidentiary burden to put bolus drinking in play before the trier of fact.
[10] In the present case, the trial judge accepted the defence position that the possibility of bolus drinking had been put into play. She referred to evidence before the court that there were two martini bottles seen in the appellant’s vehicle. One was empty and located behind the driver seat and the other had approximately two ounces in it and was in a purse on the passenger front seat of the car.
[11] The trial judge then goes on to correctly state, in my view, “the question then, is whether there is sufficient admissible evidence before the court of a direct or circumstantial nature to disprove bolus drinking”.
[12] In the Paszczenko case, the court noted that the Crown is in the unenviable position of having to prove a negative; that is that the accused is not engaged in bolus drinking. The court notes that it is likely in many cases the court will have no statement or evidence from the accused as to his or her drinking pattern at the relevant time and no other witnesses to shed any light on the issue.
[13] The court in Paszczenko notes that there is a common sense inference that people do not ingest large amounts of alcohol shortly before getting into their car and driving. The court states, “no bolus drinking” is therefore largely a matter of common knowledge and common sense about how people behave. Further, in Paszczenko the court refers to the significance of circumstantial evidence.
The Decision of the Trial Judge
[14] In deciding the issue of bolus drinking the trial judge set out her reasons as follows:
Taking the admissible evidence as a whole on the trial, I have reached the conclusion that the Crown has satisfied their burden, and there is sufficient evidence to convince me that Ms. Law did not engage in bolus drinking within 15 minutes of being stopped at the RIDE check spot on the ramp to the 404. I have reached this conclusion for the following reasons.
- I have heard evidence from Officer Kolesnyk about the contact that he had with Ms. Law. He interacted with her at the roadside. He placed her under arrest and transported her to the station. He was with her in the cell area albeit he did not take her to her individual cell. He turned her over to the qualified technician and received her back into his custody after the tests were completed.
During this time period he testified that he made no notation of any change of her level of intoxication. This fact runs contrary to the suggestion of bolus drinking.
Ms. Law was stopped at 0227 hours and provided her first sample at 0351 hours, less than two hours later. If Ms. Law had engaged in bolus drinking within 15 minutes of her stop the relevant timeline for this drinking would be between 0212 and 0226 hours; the 15 minutes before the stop time.
For this Court to accept or consider the likelihood of bolus drinking, I would have to entertain the possibility that in the early morning hours of the date in question Ms. Law drank enough alcohol to raise her blood alcohol levels from 80 milligrams or under, to 250 to 280 milligrams of alcohol in 100 millilitres of blood in under two hours. In other words, Ms. Law’s blood alcohol content would have had to increase from under the legal limit to more than three times the legal limit in under two hours.
While it would be impermissible for this Court, without direct evidence from the toxicologist to attempt to calculate how much alcohol Ms. Law would have had to consume to reach the levels she does, this Court can appropriately say that given the dramatic and profound increase in the blood alcohol content over so short a time period, I would have expected to see some increase of indicia of intoxication had there been bolus drinking.
There is no evidence of an unusual emotional state exhibited by Ms. Law. There is no suggestion in her demeanor of distress, trauma or upset, that could disclose any possible motive for bolus drinking.
There is no evidence of any sort of event or activity that could or would produce unusual drinking behaviour. There is no evidence of where Ms. Law is coming from or where she is going. There is no evidence of what her activities were during the course of the eventing. There’s no evidence as to who consumed the alcohol from the bottles in the car or when that may have happened. There is no evidence as to the volume or size of the bottles.
The officer did not detect a “strong” odour of alcohol on the breath of Ms. Law. He described the odour as “faint” on their first encounter at the RIDE spot check. This is another factor suggesting the implausibility of recent large quantity drinking.
Although the presence of empty bottles puts the issue of bolus drinking into play, very little in the evidence supports the theory. I am cognisant of the fact that Ms. Law shows little signs of impairment at the scene of the stop, however, it would be pure speculation to find that the contents of the bottles were consumed that night, much less in the 15 minutes prior to being stopped on the onramp to the 404 highway. It is also contrary to common sense that dictates that normal people do not consume large quantities of alcohol shortly before or while driving.
I have considered the helpful submission of counsel and the evidence as a whole. I am of the view that there is sufficient evidence to prove there was no bolus drinking on the part of Ms. Law. As a result, the expert report of Ms. Tse is reliable, as the underlying assumptions have been proven.
I am satisfied beyond a reasonable doubt that Crown has proven the over 80 count.
Grounds of Appeal
[15] The appellant has raised several grounds of appeal.
[16] With respect to the first reasons given by the trial judge, the appellant argues that the trial judge misapprehended the evidence in stating that if Ms. Law’s blood alcohol content increased so dramatically in under two hours she would have expected to see some increase in the indicia intoxication. The appellant argues that in the absence of expert evidence the trial judge erred in relying upon that expectation.
[17] It appears, however, from the Court of Appeal decision in Paszczenko that changes in the indicia of alcohol consumption is circumstantial evidence which a court is entitled to consider. In the Paszczenko case the trial judge, “found there was no change in the indicia of alcohol consumption during the period between his arrest and the administration of the breathalyzer test, thus rejecting the defence argument that increased signs of intoxication were evidence of bolus drinking”. The Court of Appeal found that this was a reasonable piece of circumstantial evidence for the trial judge to consider.
[18] The appellant in this case points to the fact that the inference drawn by the trial judge is inconsistent with the position taken by the Crown. In its written submissions to the trial judge, the Crown stated as follows,
- That Ms. Law exhibited little indicia of intoxication throughout the entire investigation does not suggest a deviation from a normal drinking pattern. The only conclusion that can be drawn is that Ms. Law has a high tolerance for alcohol. Given that she exhibited little indicia of impairment throughout the entire investigation the Court can conclude that Ms. Law can consume sufficient alcohol to raise her blood alcohol level to 250 mg of alcohol per 100 ml of blood without exhibiting any real outward signs of impairment. However, the Court cannot draw any conclusion about the pattern of drinking since her outward appearance would have remained the same regardless of whether that alcohol had been consumed over the course of the evening of shortly before the stop.
[19] The reasons of the trial judge make it clear that she did not accept the Crown’s position as described above. The appellant acknowledges that the trial judge was not obliged to adopt the position of the Crown. The appellant, however, refers to the Court of Appeal decision in R. v. Lutford (2000), 2000 CanLII 17024 (ON CA), 51 O.R. (3d) 737, where the Court of Appeal found that the trial judge was wrong in law in proceeding on the basis that he could use the results of the breath test in support of a finding of the degree of impairment, absent expert evidence relating to the results on that issue. It is apparent, however that the trial judge was sensitive to this issue; she notes that it would be impermissible for the court without direct evidence from the toxicologist to try and calculate how much alcohol the appellant would have had to consume to reach the levels she did. The trial judge instead references the dramatic increase in the blood alcohol content which would have been required to increase the accused’s blood alcohol content from 80 to 250 in less than 2 hours and draws an inference that she would have expected to see some increase in indicia of intoxication given this dramatic rise. This analysis based on the Paszczenko decision would appear to be a piece of circumstantial evidence that she was entitled to consider. In the absence of any palpable and overriding error I conclude that the trial judge was entitled to draw the inference she did.
[20] The appellant also asserts that the trial judge has misapprehended the evidence about whether there was a change in the appellant’s level of intoxication. As noted in her decision, the evidence of Officer Kolesnyk was that he did not note any change in the appellant’s level of intoxication. The appellant notes that on his cross-examination the officer agreed with the following suggestion:
Q. …Let’s say she was arrested at 2:34. She failed at 2:33. Since then until 6:06 when she was released there is nothing in your notes that would speak to how impaired she was.
A. No
[21] The appellant argues that the officer’s evidence that he had nothing in his notes that would speak to how impaired she was during the subsequent time period is not evidence supporting a conclusion that there was no change in the accused’s level of impairment. However, in my view this is one inference which could be drawn from the evidence. Officer Kolesnyk had previously testified in examination-in-chief to the effect that part of his training was that, “the things important to your investigation should make its way into the notes”.
[22] I conclude, therefore, that the trial judge has accurately summarized the evidence given by the officer that he made no notation of any change in the appellant’s level of intoxication. The inference she drew was one that was available to her based on the evidence and does not constitute a palpable and overriding error.
[23] The appellant also asserts that the trial judge relied on lack of evidence of an unusual emotional state that could disclose any possible motive for bolus drinking. The appellant asserts that this reasoning erroneously assumes that an emotional motive is necessary for bolus drinking and more importantly reverses the burden of proof by effectively placing onus on Ms. Law to introduce evidence of a motive for bolus drinking.
[24] The question of whether the trial judge has reversed the onus of proof is an interesting issue. The appellant relies on the fact that the trial judge comments on the absence of evidence in a number of areas. However the absence of evidence has been considered significant in a number of bolus drinking cases. See for example, R. v. Jordaan, [2014] O.J. No. 6162 at para. 41 and [2015] O.J. No. 5671 (S.C.J.) at para 39. It was also recognized by the Court of Appeal in the Paszczenko decision where the court endorses the approach of the trial judge who relied on the absence of evidence in areas similar to those which were referenced by the trial judge in this case. I accept that the absence of evidence may provide some circumstantial evidence on the issue of bolus drinking if it is a factor that would make bolus drinking more or less likely. For example, the absence of any unusual emotional state that could disclose a motive for bolus drinking would appear to be a reasonable piece of circumstantial evidence for the court to consider. As noted by the Court of Appeal in Paszczenko the issue of bolus drinking is largely a matter of common knowledge and common sense about how people behave. Courts have recognized that bolus drinking is a rare phenomenon and is not how normal people usually behave. See para. 29 of Paszczenko. Further, the trial judge does not state that an emotional motive is necessary for bolus drinking. It is one of several factors she has considered. I have concluded she was entitled to consider this issue in her analysis. The trial judge clearly recognizes in her decision that the onus is on the Crown to prove the absence of bolus drinking.
[25] The appellant takes issue with the trial judge’s reliance on her conclusion that there was no evidence on a number of other issues such as where the appellant was coming from and going to and what her activities were during the course of the evening. These references would appear to be consistent with circumstantial evidence which was found to be acceptable in the Paszczenko decision. For example in that decision there was no evidence that the accused had just come from an establishment serving alcoholic beverages.
[26] Further the appellant asserts that the trial judge’s reliance on evidence that there was not a strong odour of alcohol on the appellant’s breath at the time of her arrest. Common sense would seem to suggest that the strength of the smell of alcohol on someone’s breath may be a factor in considering how recent the consumption was. This is reflected, for example in the Ontario Court of Justice decision in R. v. Shayda, 2013 ONCJ 208, where the court stated that “a strong odour of alcohol can be evidence of recent consumption, but this does not necessarily follow; it can also be indicative of the amount of consumption”. A similar conclusion was reached in the B.C. Supreme Court decision in R. v. Lardner, 2007 BCSC 986, where the court states that, “a strong odor of alcohol may reflect either recent consumption or the amount of alcohol consumed”.
[27] The appellant also takes issue with the comment near the end of her judgment where the trial judge states, “I am cognisant of the fact that Ms. Law shows little signs of impairment at the scene of the stop, however, it would be pure speculation to find that the contents of the bottles were consumed that night, much less in the 15 minutes prior to being stopped on the ramp to the 404”.
[28] The appellant argues that the trial judge’s acknowledgment that Ms. Law shows little signs of impairment at the scene of the stop is inconsistent with her reasoning that Ms. Law would have shown indicia of intoxication as quoted in the toxicology form. However, the trial judge specifically refrained from commenting on what particular level of indicia would be observable in the appellant at a particular blood alcohol level. Her comment which has been referred to previously, only made reference to the fact that a sudden increase in blood alcohol level over such a short time period would have been expected to result in some increase in indicia of intoxication. I do not find the comments by the trial judge to be inconsistent.
[29] Finally, the appellant argues that the trial judge wrongfully reversed the burden of proof on to the appellant when she comments that it would be pure speculation to conclude that the liquor bottles found in the appellant’s car were consumed within 15 minutes of the stop. In my view, however, the trial judge in making reference to the liquor bottles is simply addressing the fact that while the bottles put the issue of bolus drinking into play, they do very little to support the theory and do not raise a reasonable doubt on the issue of bolus drinking. As noted previously, deference is owed to the trial judge regarding the weight to be given to the various pieces of evidence. It does not justify appellate intervention.
Conclusion
[30] As noted earlier this Court is not entitled to retry the case. The standard of review for findings of fact is that they should not be reversed unless the trial judge made a palpable and overriding error. For the purposes of this appeal, the test is whether the trial judge could have reasonably have reached a conclusion that there was no bolus drinking beyond a reasonable doubt. In my view, it was open to the trial judge to take into account the factors which she set out in her decision. Her findings of fact are entitled to deference by this Court in the absence of a palpable and overriding error. This appeal is therefore dismissed.
Justice M. McKelvey
Released: November 15, 2017
CITATION: R. v. Law, 2017 ONSC 6835
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
LORRAINE LAW
Appellant
REASONS FOR JUDGMENT on summary conviction appeal
Justice M. McKelvey
Released: November 15, 2017