Court File and Parties
COURT FILE NO.: CR18-0003 DATE: 2019-03-25 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – Robert Swihart Appellant
Counsel: Ms. Janicas, for the Respondent Mr. Allisson, for the Appellant
HEARD in Gore Bay: March 15, 2019
Decision on Appeal
DEL FRATE j.
[1] The appellant, Robert Swihart, appeals the decision of the Honourable Justice A. Buttazzoni dated March 23, 2018. In that decision, the trial judge found the appellant guilty of operating a motor vehicle with a blood alcohol concentration in excess of 80 mg contrary to s. 253 (b) of the Criminal Code, R.S.C. 1985, c. C-46.
Background
[2] The facts are not in serious dispute.
[3] In the early hours of August 5, 2016 in the District of Manitoulin, the Scott family was startled by bright lights, loud music and noise emanating from a vehicle outside their cottage. Some members of the Scott family went outside to investigate the disturbance. A vocal altercation took place between the appellant and the occupants of the cottage. During this time, members of the Scott family detected a strong odour of alcohol emanating from the appellant.
[4] Being unable to resolve the dispute, Ms. Forshaw called the police at approximately 1:00 a.m. Constable Robertson responded to the call and arrived approximately 30 minutes later. He noticed members of the Scott family close to the cottage and then observed the appellant in his vehicle, which appeared to be stuck in a heavily treed area, about 30 meters from the cottage. Cst. Robertson recognized the driver as the appellant. He then observed the appellant take a drink from what appeared to be a Listerine bottle.
[5] Cst. Robertson approach the appellant to discuss the situation. During their conversation, Cst. Robertson detected an odour of mouthwash and alcohol from the appellant. He formed reasonable grounds to arrest the appellant for impaired operation of a motor vehicle and demand a breath sample.
[6] Sergeant Minnear also responded to the call and arrived on scene shortly after Cst. Robertson. A cursory search in the general location of the appellant’s vehicle by Sgt. Minnear revealed an empty Molson Canadian beer bottle.
[7] At the police station, a breathalyser test was conducted. The first test at 2:52 a.m. revealed a reading of 109 mg of alcohol in 100 ml of blood. The second at 3:13 a.m. revealed a reading of 105 mg of alcohol in 100 ml of blood.
[8] Since the presumption pursuant to s. 258(1)(c) could not be established, the Crown relied on the evidence of a forensic toxicologist.
[9] The trial judge found that there was insufficient evidence to establish a finding of guilt on the impaired driving charge and accordingly dismissed it. However, he did find that the Crown had proven the essential elements on the over 80 charge and accordingly convicted the appellant.
[10] The trial judge dismissed the appellant’s allegations that the Crown had not established that there was no bolus drinking shortly before driving and further that the appellant had not consumed alcohol post driving and before the first breathalyser test.
Position of the Appellant
[11] The appellant submits that the trial judge erred in finding that the Crown could rely on the expert opinion of the toxicologist to prove the concentration of alcohol in the blood at the time of this offence. He submits that the Crown failed to call evidence to establish a proper foundation in law to support a finding of two of the four assumptions enunciated by the Court of Appeal in R. v. Paszcenko; R. v. Lima, 2010 ONCA 615, 103 O.R. (3d) 424.
[12] In this case, the appellant alleges that the Crown failed to establish that:
- There was no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the time of driving;
- There was no consumption of alcoholic beverages after the time of driving and before the breath test.
[13] The appellant submits that there was “evidence to the contrary” that precluded the trial judge from making a common sense inference. This evidence consisted of the presence of an empty beer bottle found in the immediate vicinity of the appellant’s vehicle and secondly Cst. Robertson’s observation of the appellant drinking from what he believed to be a Listerine bottle.
[14] The appellant submits that, in this case, the officer should have and could have tested the contents of the Listerine bottle to determine if it contained alcohol. The “persuasive evidence” stipulated in Paszcenko was not present in this case and accordingly the expert’s report should be excluded and the conviction cannot stand.
Position of the Respondent Crown
[15] The respondent submits that no error was made by the trial judge. The inferences and the conclusions that he arrived at were available to him based on the evidence led at trial. At no time did he shift the onus to the appellant in arriving at his decision. He was cognisant of the issues and made findings based on the evidence that he had accepted.
[16] The respondent further submits that even though an empty beer bottle was found in the vicinity of the vehicle, and even if that bottle had been consumed by the appellant, that would not amount evidence of bolus drinking. Likewise, even though Cst. Robertson observed the appellant drink from a bottle of mouthwash, there was no evidence that it contained alcohol. As such, the trial judge correctly held that the Crown was not required to take any further steps to “prove” reliance on the underlying factual assumptions on which the expert opinion was based.
[17] Lastly, there was evidence that the appellant stated to Cst. Robertson that he had not consumed any alcohol from approximately one hour before the officer arrived at the scene. The appellant offered this information in response to questions Cst. Robertson asked him while administrating the breathalyser test. Accordingly, the Crown submits that appeal should be dismissed.
The Law
[18] The parties agree that the governing principles for the “no bolus drinking” and “post offence drinking” are contained in the Paszcenko and Lima decision. In that decision, Blair J.A. addresses the evidentiary burden of proof in establishing “bolus drinking” and “post offence drinking” to rebut the toxicologist report’s assumptions that neither of these factors affected his opinion.
[19] Blair J.A. recognized the challenges posed by these issues and, at para. 28, states:
In establishing that an accused has not engaged in bolus drinking, the Crown is in the unenviable position of having to prove a negative. But how does it meet that onus in circumstances where - as is likely in many cases - it has no statement or evidence from the accused as to his or her drinking pattern at the relevant time and no other witnesses or evidence to shed any light on that issue?
[20] At para. 29 he goes on to states:
At one level, the answer is straightforward: the Crown need do very little. The toxicologist’s report is premised - amongst other things - on there being no bolus drinking. In the absence of something on the record to suggest the contrary, on what basis could a trier of fact conclude there was bolus drinking? This Court has answered the question posed by concluding that triers of fact may resort to a common sense inference in such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving: see Grosse, Hall, and R. v. Bulman, 2007 ONCA 169. As noted above, bolus drinking has been said to be a “relatively rare” phenomenon: Phillips, at pp. 158-162. “No bolus drinking” is therefore largely a matter of common knowledge and common sense about how people behave.
[21] He then goes on to state at para. 32:
I would frame the rationale for this approach as the imposition of a practical evidentiary burden on the accused, not to persuade or convince the trier of fact that there was bolus drinking involved, but to point to something in evidence (either in the Crown’s case, or in evidence led by the defence) that at least puts the possibility that the accused had engaged in bolus drinking in play. The imposition of practical evidentiary burden to come forward with evidence is simply another way of explaining the invitation to draw a common sense inference which puts the accused in essentially the same spot if he or she cannot point to evidence to overcome either hurdle.
Discussion
[22] The appellant submits that since the onus is always on the Crown to prove its case beyond a reasonable doubt, once either “bolus drinking” or the “post-offence drinking” is “put into play”, then the Crown must disprove that either of these factors were “in play”. In other words, the trial judge cannot rely on common sense inferences to convict an accused.
[23] This is all the more important in this case since the trial judge concluded that “bolus drinking” or “post-offence drinking” was not “in play”. At pp. 20 and 21 of his reasons states that:
The evidentiary record does not support a conclusion that the accused had consumed this bottle of beer. Such a conclusion would be purely speculative. In any event, one bottle of beer would not necessarily amount to bolus drinking.
Further he states:
There is nothing in the evidence of the Crown or that of the accused that at least put the possibility that the accused had engaged in bolus drinking in play.
Again, the trial judge states:
There is nothing to suggest that the accused actually consumed alcohol from the empty bottle of beer in the area close to the vehicle.
Last, he concludes:
While there is evidence the accused drank from a bottle of Listerine, there is no evidence before me that the Listerine product contained any alcohol.
[24] Are these inferences reasonable conclusions that could be drawn from the evidence?
[25] In my view, the trial judge’s inferences and conclusions are supported by the evidence, and are totally reasonable and should not be interfered with on appeal: Criminal Code, s. 686(1)(a)(i); R. v. B. (R.H.), [1994] 1 S.C.R. 656. Although there may be cases where evidence of an empty beer bottle and of drinking from a bottle of Listerine may be sufficient to establish that the burden has been met by an accused to put these factors “in play”, this is not one of them. The evidence is clear that an empty beer bottle was found in the vicinity of the stopped vehicle, and further that Cst. Robertson observed the appellant drinking from what he perceived to be a bottle of Listerine. There is no evidence on the record that the mouthwash contained any alcohol. Contrary to the appellant’s contention, there is no obligation on the police or the Crown to test the contents of the bottle.
[26] Further, the evidence is also clear and uncontradicted that, when Cst. Robertson was administrating the breathalyser test, the appellant clearly stated that he had not consumed any alcohol from approximately one hour prior to the officer’s arrival at the scene. That admission is direct evidence that the trial judge could rely upon to form his conclusion that bolus drinking or post-offence drinking were not in play in this case.
[27] It is clear that it was open to the trial judge to conclude that the evidence was insufficient to undermine the common-sense inference of drinking at a normal pace or to suggest post-offence drinking. These conclusions are reasonable and should not be interfered with on appeal. Accordingly, the appeal is dismissed.
The Honourable Mr. Justice Robert G.S. Del Frate
Released: March 25, 2019