Court File and Parties

COURT FILE NO.: 23-101633 DATE: 2024-09-25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Devesh Amar Serkissoon

BEFORE: McArthur M.D., J

COUNSEL: M. Goodfellow, for the Provincial Crown S. Gehl, for the Defendant/Applicant, Devesh Amar Serkissoon

HEARD: September 20, 2024

Ruling on Directed Verdict Application

Introduction

[1] The Crown has closed its case. The defendant/applicant brings an application for directed verdicts in relation to counts 1 and 3, being offences both pursuant to s. 320.14 of the Criminal Code involving the operation or a conveyance of a motor vehicle while impaired by a drug (s. 320.14(1)(a)) and/or having equal or more than 5.0 ng/mL of THC in his blood (s. 320.14(1)(c)).

[2] Counsel for the applicant asks that a directed verdict of acquittal be granted on these two counts. There are two counts of dangerous operation cause death and bodily harm, both of which are not the subject of this application.

[3] The Crown concedes there is no route to liability on the evidence in relation to impairment by THC but submits the Crown has provided sufficient evidence that the applicant had 5.0 ng/mL of THC in his system within two hours of the time of accident when the applicant ceased to operate his vehicle. The Crown submits that the application fails and should be dismissed.

Factual Overview

[4] The defendant is charged with four counts operating a conveyance: two counts of dangerous operation of a conveyance that caused the death of one person and the bodily harm of another person (being counts 2 and 4 in the Indictment respectively) contrary to s. 320.13(3) and s. 320.13(2) of Criminal Code; and 2 counts of operating a conveyance with THC in his system that was 5 ng/mL or more in his blood within two hours of ceasing to operate his motor vehicle (being counts 1 and 3) that caused the death of one person and the bodily harm of another person respectively contrary under s. 320.13(3) and s.320.13(2) of the Criminal Code.

[5] In the late afternoon of February 3, 2021, the applicant was driving a BMW sedan motor vehicle westbound on Victoria Street and was proceeding in the centre/left through-lane into the intersection at Fischer-Hallman Road in Kitchener. A Lexus motor vehicle was proceeding eastbound on Victoria Street in the left turn lane and turned left into the lane of travel of the applicant’s motor vehicle. The applicant’s vehicle collided with the passenger side of the Lexus. From the collision, the passenger of the Lexus was pronounced deceased, and the driver of the Lexus was injured and taken to hospital and treated for injuries. She testified at this trial. The applicant was attended to by paramedics and then transported to Grand River Hospital for assessment.

[6] The investigating officer attended the hospital to which the applicant had been transported. He observed the medical staff take 4 vials of blood from the applicant for medical purposes. The officer spoke to the accused who stated he had consumed marijuana the day before at around 6 pm and not consumed any alcohol for 2 weeks. The officer arranged to have seals placed on these vials.

[7] A s. 487 Criminal Code Warrant was subsequently sought and obtained by the officer to seize these vials. Ultimately, the vials were sent to the Center of Forensic Sciences in Toronto. Only one of the vials that contained 4.5 ml of blood was suitable to be tested. The blood content of the vial was analyzed by a technician and the results were then forwarded to Ms. Betty Chow.

[8] Defence counsel in submissions raised the issue that Ms. Chow is a designated analyst pursuant to s. 254(1) for the purposes of s. 258 of the Criminal Code. The Crown pointed out that Ms. Chow remains a designated analyst by virtue of the transitional provisions of Bill C-46. As will be observed below, these blood samples were not taken pursuant to Part VIII of the Criminal Code.

[9] Betty Chow was, on consent, qualified as an expert in areas of forensic toxicology involving the absorption, distribution and elimination of drugs in the human body, the detection and analysis of substances, specifically blood, for the presence and concentration of substances in the human body and the pharmacological and toxicological effects of drugs and their effects on the human body. Ms. Chow’s qualifications were also admitted on consent as filed in Exhibit 16.

[10] Betty Chow had also conducted tests on blood serum submitted for alcohol. The test proved negative for the presence of alcohol.

[11] Ms. Chow provided a report that was filed as Exhibit 17. She also testified at trial.

[12] In her report, her conclusions in relation to Tetrahydrocannabinol (THC) were that:

a. there was 5.2 ng/mL of THC with an MU, Margin of Uncertainty of +/- 0.4 ng/mL in the blood sample; b. the analytical findings represent those at the time of sample collection; c. blood THC concentrations depend on dose, route and pattern of distribution and may not correlate with effects; d. the time of last administration is a more reliable predictor of effects following THC administration; e. effects following recent THC use can include feelings of well-being, relaxation, increased heart rate, altered time perception, motor incoordination and decreased ability to concentrate.

[13] Ms. Chow’s trial testimony and its implication will be addressed further below in these reasons.

The Issue

[14] The issue is, after engaging in limited weighing of the circumstantial evidence in the case, whether there is evidence of a prima facie case through reasonable inferences that a trier of fact could draw upon which a reasonable jury, properly instructed, could return a verdict of guilty on counts 1 and 3.

[15] For reasons that follow, the court finds a verdict of guilty could not be returned on these counts, the application shall be granted, and the charges dismissed on counts 1 and 3.

Applicant/Defendant’s Position

[16] Counsel for the applicant submits that the Crown has failed to elicit sufficient evidence upon which a reasonable jury, properly instructed, could convict the applicant beyond a reasonable doubt involving counts 1 and 3.

[17] Counsel for the applicant submits the blood sample was analyzed and yielded test results of 4.94 ng on the first occasion and the averaged result was 5.2 ng and that, based on the opinion of the expert evidence of the Crown’s expert toxicologist, Betty Chow, require the application of the margin of uncertainty for which the range of the THC reading could be below 5.0 ng, and, in the circumstances, a reasonable trier of fact properly instructed could not return a verdict of guilty in the circumstances.

[18] Counsel also submitted other points in relation to the chain of continuity and other features. It will not be necessary to address these points in these reasons.

Crown’s Position

[19] The Crown submits there is evidence that reasonably supports an inference of guilt that the level of THC in the applicant’s blood was equal to or exceeded 5.0 ng.

[20] The Crown also submitted that the Crown’s expert, Betty Chow, was an analyst by virtue of the transitional provisions of Bill C-46 that is in effect, particularly section 38, and that the other provisions under the various s. 320 sub-enumerations applied.

[21] It will not be necessary for the court to address these latter submissions. This is a case where the provisions of Part VIII.1 do not apply to the testing and analyses of blood samples in this case where the blood was obtained pursuant to a Search Warrant granted under s. 487 of the Criminal Code in Part XV. Section 320.3 is clear when read in relation to the other sections in this Part which include by example s.320.28 (demands by police officers) and s.320.29 (warrants requiring a medical practitioner or technician to take blood samples).

[22] The Crown’s submissions and cases presented can be distinguished on the basis that they were premised on situations where blood analyses were performed pursuant to a demand by the police (see R. v. Kelly, December 3, 2023 at Kitchener, Minard J. at pages 10 and 11) or involved breath alcohol testing devices approved by Parliament under the Criminal Code.

The Legal Principles

[23] The test on a motion for a directed verdict is whether there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty: See R. v. Monteleone, [1987] 2 S.C.R. 154 at para 8 and R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54 at para 21 and R. v. Ortega, 2022 ONCA 826.

[24] A motion must be dismissed if there is admissible evidence that could, if it were believed, result in a conviction.

[25] Where the evidence relied on by the Crown is entirely circumstantial, the court must engage in limited weighing of the evidence to determine whether it is reasonably capable of supporting the inferences that the Crown asks the to be drawn. The Supreme Court of Canada in Arcuri at paragraph 23 as follows:

The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[26] The limited weighing of evidence was again addressed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33 at paragraphs 55 and 56 as follows (emphasis added in bold):

[55] A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15. Applying this standard requires the appellate court to re-examine and to some extent reweigh and consider the effect of the evidence: R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186. This limited weighing of the evidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: Yebes, at p. 186; R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4; R. v. Liu (1989), 95 A.R. 201 (C.A.), 1989 ABCA 95, at para. 13; R. v. S.L.R., 2003 ABCA 148; R. v. Cardinal (1990), 106 A.R. 91 (C.A.), 1990 ABCA 115; R. v. Kaysaywaysemat (1992), 97 Sask. R. 66 (C.A.), at paras. 28 and 31.

[56] The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, at para. 22. The court noted that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind. Most importantly, “[i]t is still fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.”

[27] It is not the responsibility of a judge on a motion to choose between competing inferences. A certain gap in the evidence may result in inferences other than guilt. In many situations, where the evidence is capable of supporting more than one inference, only the inferences that favor the Crown are to be considered. See R. v. Sazant, 2004 SCC 77 at para 18.

[28] Inferences must be reasonable given the evidence, the absence of evidence and assessed logically, and in light of human experience and common sense. Inferences may arise from evidence as well as from a lack of evidence. See also R. v. Jackson, 2016 ONCA 736 at paras 12 to 14.

[29] This court is mindful that inferential gaps can arise based on the nature of the evidence and must take into account all of the evidence in the context of the case. In this case, the inference as to the blood readings arise solely from the scientific method used and the expert opinion in evidence as proffered by the Crown’s expert.

Analysis

[30] Ms. Chow’s trial testimony in relation to the readings can be summarized as follows:

a. The technical staff at the Centre of Forensic Sciences do the analysis on the sample and this is reviewed by another technical member. There are two separate analyses performed of two separate instruments of the sample. No single positive analysis is done once. This yields two results. Ms. Chow then receives the results of the analyses to determine input agreement or if they are vastly different from each other. This is done to ensure the results are accurate and reliable; b. In this case, Ms. Chow found the results of the two analyses were in good agreement, averaged the two results and determined the blood drug concentration to be 5.2 ng. If she was concerned of changes in the drugs, changes decrease the level. Increases in the level are not expected over time; c. The concentration recorded does have an associated variability of plus or minus .4 ng. MU referred to in her report is measurement uncertainty which arises with any type of instrument and is an expectation of variability. She explained this is the variability associated with the testing of the sample, meaning that if did the test results from enough sample repeated 100 times, the THC results would fall in the range of 4.8 to 5.6 ng/mL of blood; d. A technician performed an analysis on March 29, 2021, and another analysis was performed a couple weeks later whereby a small sample of blood taken at the hospital for medical purposes was processed for THC through a mass-spectrometer that isolated the THC in the blood sample; e. The THC concentration in the blood can change over time. Analyses are conducted different times to ensure the results are in good agreement. In this case, this analyse was performed and the average of these results was used. This averaged result applied the variability or margin of uncertainty of plus or minus .4 ng; f. The THC concentration cannot be read-back and there is no reliable way of doing a read-back of the THC drug concentration, unlike alcohol; g. Assuming an accident collision at 3:50 pm and the blood sample is taken 4 hours 15 minutes later at 8:04 pm, the THC concentration may be determined if there was no subsequent use occurred after 3:50 pm and, based on the analysis, then the rate at the time of collision would be at least 5.2 or higher, relying on the fundamentals of absorption, distribution and elimination of drugs; h. On cross-examination, Ms. Chow testified at the time of the incident, with the correct understanding of variability of the 5.2 number, this meant that the reading could have been 4.8 ng or higher; i. Once a person stopped smoking marijuana, there is no timeframe that can be provided as to the drop in THC concentration since this depends on the individual’s smoking pattern and dosage; j. First analysis test result was 4.9 ng with a plus of minus 3.6 margin of uncertainty that applies to every quantitative result, meaning a THC range could be 4.63 to 5.3-5.4 ng. Ms. Chow then requested a further test, and that result was obtained and averaged as appropriate; k. Ms. Chow agreed that at the time of this accident, it is possible that the defendant’s THC level was 4.94 ng. She agreed that his THC reading could have been below 5 n (and as in the first test) at the time driving and that the measure of uncertainty applied to this reading; l. A chronic dependent user of marijuana as described by Ms. Chow as using the drug daily of and using it multiple times a day in the day could have a residual THC concentration of 0 to 5/6 ng; m. There was other evidence provided which is unnecessary to review for these reasons.

[31] The three critical features from Ms. Chow’s evidence are refenced above in subparagraphs in (h), (j) and (k).

[32] The Crown submits the measurement of uncertainty is immaterial and relies on R. v. Moreau, [1979] 1 S.C.R. 261. However, the elaborate legislative scheme in that case involved the results from the officially approved instruments to determine alcohol levels in blood where the issue arose as to evidence to the contrary. This situation does not involve the elaborate statutory scheme nor any specially approved instrumentation. Rather, this court finds this situation involves and engages the usual scientific methods of testing and measurement which necessarily involve and must apply the measurement of uncertainty.

[33] This court’s finding also takes into account and rejects the Crown’s submission that conflates the possibility of measurement uncertainty with the ability of the Crown to ever prosecute a 5 ng case or an 80 mg alcohol case in excess of any known or potential margin of error and the submission that Parliament is presumed to know the limits and allow for very slight measurement uncertainty. Rather, this court can only apply the law in effect currently and the scientific evidence as presented to the court. Such is the case here.

[34] In the circumstances of this case, in view of the opinion of Ms. Chow and specifically the three features outlined above, the Crown must negate the inference the THC level was below 5.0 ng/mL to avoid a non-suit on these counts. Without so doing the evidence is not sufficient to support the inference that the blood level reading of THC was 5.0 ng/mL or higher in the applicant at the time or within 2 hours that he ceased operating the BMW vehicle.

[35] Here the range of reasonable inferences that can be drawn from Ms. Chow’s evidence is that the THC content in the blood of the applicant at the time of operation of the vehicle may have been below 5.0 ng/mL. Accordingly, in view of this evidence there is a reasonable inference other than guilt and the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt as required by the case authorities cited above.

Conclusion

[36] For these reasons, the motion for a directed verdicts is granted and counts 1 and 3 are dismissed.

Justice M.D. McArthur Dated: September 25, 2024