Court File and Parties
COURT FILE NO.: CR-17-3100-00AP DATE: 20181102 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Dennis Aroozoo
BEFORE: Di Luca J.
COUNSEL: Lucas O’Neill, Counsel for the Crown/Respondent Peter Lindsay, Counsel for the Defendant/Appellant
HEARD: October 26, 2018
Endorsement
[1] On March 23, 2017, the appellant was charged with driving “Over 80” following a roadside stop and investigation by the York Regional Police. The appellant was tried before Bourque J. of the Ontario Court of Justice and on April 23, 2018, he was convicted and sentenced to a fine of $1500 plus a driving prohibition of 12 months. He appeals his conviction and seeks either an acquittal or a new trial. He bases this request on alleged misapprehensions of the evidence of the Crown’s expert toxicology witness.
[2] For the reasons that follow, the appeal is dismissed. In my view, the trial judge did not misapprehend the evidence in question. His reasons demonstrate that he was alive to the issues as framed and presented. Ultimately, the alleged errors amount to no more than an invitation to retry the case and reach a different conclusion.
Brief Summary of Facts
[3] The appellant was initially stopped for speeding. The officer who conducted the stop smelled alcohol and made a demand for approved screening device test. The appellant failed the test and was arrested for the offence of “Drive Over 80.”
[4] The initial stop by police occurred at 1:20 a.m. Breath samples were eventually taken at 4:04 a.m. and 4:29 a.m. The samples were 96 mgs of alcohol in 100 ml of blood and 95 mgs of alcohol in 100 ml of blood, respectively.
[5] In view of the time lapse between the driving and the taking of the samples, the Crown could not rely on the evidentiary presumptions found in the Criminal Code and instead relied on the expert testimony of Betty Chow, a toxicologist from the Centre of Forensic Sciences. Ms. Chow testified that in her opinion, the appellant’s blood-alcohol concentration at the time of driving would have been between 95 and 145 mgs of alcohol in 100 ml of blood.
[6] Ms. Chow based her opinion upon four standard assumptions relating to the scientific underpinnings of alcohol absorption and elimination. First, she indicated that she used a rate of elimination 10-20 mgs of alcohol in 100 ml of blood per hour. In her view, this range of elimination rates captures the majority of the population, though she agreed that elimination rates below 10 were possible, albeit in individuals with liver issues. Second, she provided for a “plateau period” of up to two hours in length, though she noted that the plateau period was typically much shorter. Third, she assumed that the test subject had not consumed a large quantity of alcohol within 15 minutes prior to the driving. Fourth, she assumed that the test subject consumed no alcohol after the time of driving and before the breath tests.
[7] Ms. Chow testified that the nature of the assumptions, including the use of the lower rate of elimination, the full two hour plateau, the use of the lowest reading obtained and the truncation of the test results all combined to provide a conservative estimate of the test subject’s actual blood-alcohol concentration. She further added that the ratio used by the Intoxilyzer to convert the breath-alcohol reading into a blood-alcohol determination was also conservative. On this issue, she agreed that the literature revealed that specific test subjects could have a conversion ratio that was lower than the ratio used by the Intoxilyzer.
[8] During cross-examination, Ms. Chow was asked to consider the following factual scenario:
An individual, at the end of a social drinking scenario, could have their BAC continue to rise for a period of between 14 and 138 minutes. Their BAC could rise 20-30 mgs after the end of drinking. Their BAC could rise 10 mgs after drinking to point of the police stop and then a further 20 mgs from the time of the stop to the time of the breath tests. Using this scenario, if a person was at 70 mgs at the time of the police stop they could be at 90 mgs at the time of the tests.
[9] This scenario invited Ms. Chow to assume that the test subject was in the rising phase of the blood-alcohol concentration curve and not the plateau or declining phase as was assumed by the expert when she gave her initial opinion to the Court.
[10] The cross-examination on this scenario occurred both before and after the lunch break. During the cross-examination before the lunch break, Ms. Chow maintained that her original opinion that the low end of the test subject’s blood-alcohol concentration would remain at 95 mgs in 100 ml of blood. Ms. Chow maintained this view initially because she conducted her recalculations on the basis that the subject would be on the rising portion of the curve and therefore would not be at a plateau.
[11] After the lunch break, cross-examination on this issue continued and Ms. Chow indicated that she had effectively based her earlier evidence on a “last drink” or “drink after” scenario. Defence counsel continued his cross-examination and sought clarification from Ms. Chow on whether the scenario he posited was possible. Ms. Chow testified that the defence scenario was not likely, but possible. In giving this evidence, Ms. Chow was asked to opine on whether a blood-alcohol concentration of 70 at the time of driving could be consistent with a breath reading of 90 taken 2 hours and 45 minutes after driving. Ms. Chow responded that rise of 20 mgs, from 70 to 90 mgs, over a 45 minute period was highly unlikely, albeit possible.
The Arguments on Appeal
[12] The central issue on this appeal is whether the trial judge misapprehended the evidence of Ms. Chow in relation to the defence hypothetical. According to the defence, if the trial judge had properly appreciated this evidence, the result would have been an acquittal. The Crown counters and argues that the trial judge’s reasons demonstrate that he accurately apprehended this evidence but simply found that it did not leave him with reasonable doubt about the appellant’s blood-alcohol concentration at the time of driving.
[13] There is no disagreement between counsel as to the test to be applied on assessing whether the trial judge misapprehended the evidence and if so, whether the misapprehension warrants appellate intervention; see R. v. Morrissey, 1995 ONCA 3498, [1995] O.J. No. 639 (C.A.) and R. v. Lohrer, 2004 SCC 80, [2004] S.C.J. No. 76.
[14] The trial judge’s reasons for judgment summarize Ms. Chow’s evidence, both pre-lunch and after-lunch, at paras. 9 and 13, wherein he states:
[9] The defence put to the witness a hypothetical scenario where at the end of a social drinking situation, a person’s blood-alcohol level would rise and it could be up by 10 per cent by the time of last driving and up a further 20 percent when they were eventually tested. The witness stated that her numbers could not simply be changed as what was proposed to her was a “last drink scenario”, and a new calculation would have to be made and the plateau would not apply. The witness stated that even with that scenario, the person would still have a blood-alcohol concentration of 95.
[13] The witness was shown a further hypothetical and stated that while a climb from a reading of 70 to 90 is possible after finishing drinking in a social context, it was unlikely.
[15] The trial judge then analysed the defence challenge to expert’s testimony. In this regard, the context is important. At trial, the defence did not simply rely on the above noted hypothetical to challenge the expert’s opinion. Rather, the defence challenged a number of aspects of the expert’s testimony, including her reliance on the breath to blood conversion ratio and the rate of elimination used, in an effort to challenge the assumption that the appellant was in the declining portion of the alcohol absorption curve. The defence ultimately invited the trial judge to find a reasonable doubt based on the totality of the evidence elicited on cross-examination.
[16] The trial judge ultimately concluded that he had no doubt that the appellant was driving with a blood-alcohol concentration over 80 mgs of alcohol in 100 ml of blood.
[17] The appellant argues that in reaching this conclusion, the trial judge misapprehended two key aspects of the expert’s evidence. First, he argues that the trial judge misapprehended the “pre-lunch” evidence by failing to appreciate that it related to expert’s misunderstanding of the hypothetical put to her in that she assumed the hypothetical was a “last drink” or “drink after” scenario. Second, he argues that the trial judge misapprehended the expert’s evidence that the hypothetical, once properly understood, rendered it reasonably possible that the appellant had a blood-alcohol concentration of 70 mgs at the time of driving.
[18] In my view, the first alleged misapprehension is of no moment, as the expert was asked to clarify her evidence after the lunch break and did so, in part by agreeing that the defence hypothetical was a possibility. This was recognized by the trial judge, who briefly but accurately summarized the nature of this hypothetical in his summary of the evidence.
[19] The second alleged misapprehension is more nuanced. Viewed in the complete context of the evidence, the expert’s evidence appears to have been that it was possible for the subject of the hypothetical to have a BAC of 70 at the time of driving and a BAC of 90 at the time of the breath test 2 hours and 45 minutes later because it was possible, albeit unlikely, that a person’s BAC could rise by 20 mgs over 45 minutes following the end of consumption. The reference to 45 minutes is presumably the time remaining once a 2 hour plateau is allowed for given the overall time frame involved on the specific facts of this case.
[20] The defence argues that Ms. Chow’s evidence was that this hypothetical was a “reasonable possibility” and that the trial judge erred by failing to appreciate this evidence and give it proper effect. According to the defence, giving this evidence “proper effect” would have resulted in an acquittal because it was reasonably possible that the appellant was driving at a BAC of 70 mgs even though when tested 2 hours and 45 minutes later he was at 90 mgs.
[21] I do not agree. Ms. Chow’s evidence was not that it was “reasonably possible” that the appellant’s blood-alcohol level was under 80 mgs at the time of driving. Ms. Chow agreed that a person’s BAC could rise by 20-30 mgs after consumption had stopped and that absorption would hit a peak between 14 and 138 minutes after consumption. On that basis, she agreed that in a social drinking context, it was possible that with a 2 hour plateau period, a person’s blood-alcohol concentration could rise by 20 mgs in 45 minutes. That said, she also qualified her evidence by indicating that it would depend on how much alcohol was consumed and the timing of the consumption. Read as a whole, the impugned portion of the her testimony was that there was a possibility, albeit an unlikely or perhaps even highly unlikely possibility, that the hypothetical test subject’s blood-alcohol concentration was under 80 mgs at the time of driving.
[22] I fail to see how the judge “misapprehended” this evidence. In my view, he simply found that it did not leave him with reasonable doubt. The trial judge’s reasons must be read as a whole. The trial judge was providing reasons addressing a multi-pronged attack on the expert’s assumptions and her resulting evidence. At paragraphs 16 and 17 of his reasons, the trial judge noted that the appellant sought to undermine the assumption that the appellant was on the descending portion of the curve. The trial judge went on to discuss why he accepted the expert’s evidence premised as it was on certain assumptions. He found that while certain hypotheticals might call the assumptions into question, there was no evidence in this case supporting anything more than the possibility. In support of this conclusion, the trial judge made reference to the appropriate authorities, including R. v. Jordaan, 2014 ONCJ 787 affirmed at 2015 ONSC 6716 and R. v. Paszczenko, 2010 ONCA 615.
[23] The trial judge noted that there was no onus on the defence to adduce evidence. Rather, the defence had to point to evidence that gave an air of reality to the defence position on any of the assumptions used by the toxicologist. This is an accurate statement of the law as it relates to the four assumptions typically used in expert toxicology cases. While the specific hypothetical that is the subject of the alleged misapprehension did not directly engage the four core assumptions of the expert’s opinion, the defence hypothetical sought to challenge the expert’s overall assumption that the appellant was in the declining stage of the absorption curve.
[24] The trial judge correctly viewed the hypothetical as simply a hypothetical that was possibly available given the readings. It was in no way tied to the evidence before the court and more particularly, to the appellant.
[25] In my view, while it may have been open to the trial judge to have been left in reasonable doubt on the basis of the totality of the evidence before him including the defence hypothetical, his conclusion that he had no reasonable doubt was not based on any misapprehension of the evidence before him.
[26] The appeal is dismissed and the stay of the driving prohibition is lifted.