R v Bourgeault, 2014 ABQB 654

Court of Queen ’ s Bench of Alberta Citation: R v Bourgeault, 2014 ABQB 654 Date: 20141027 Docket: 130448590S1 Registry: Peace River Between: Her Majesty the Queen - and - Richard John Bourgeault Appellant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Pentelechuk _______________________________________________________

Summary Conviction Appeal of The Honourable Judge C.K.W. Thietke Dated the 30 th of January, 2014 Docket: 130448590P1 I Introduction [ 1 ] Mr. Bourgeault was charged with impaired driving contrary to s 253(1)(

a) of the Criminal Code , RSC 1985, c C-46, and driving with a blood alcohol level greater than 80 mg of alcohol in 100 mL of his blood contrary to s 253(1)(b). At trial, he was acquitted of the “08” charge but convicted of impaired driving. [ 2 ] Mr. Bourgeault appeals his conviction on the following grounds:

a. the learned trial judge erred by considering inadmissible evidence obtained prior to Mr. Bourgeault being provided with his s. 10(

b) Charter rights; and b. the admissible evidence is incapable of supporting a conviction on impaired driving. II Facts [ 3 ] Mr. Bourgeault was stopped by Constable Lowe at 3:43 a.m. after Cst. Lowe had followed him for a couple of minutes and observed driving irregularities. Mr. Bourgeault was driving at an estimated 130 km/h in a 100km/h zone, his truck’s driver-side front and back tires drifted over the centre line before the vehicle returned to the centre of the appropriate driving lane, and he abruptly and aggressively braked in order to execute a left-hand turn onto a gravel township road. [ 4 ] Cst.

Lowe pulled Mr. Bourgeault over. Mr. Bourgeault stopped appropriately when directed to do so. [ 5 ] Mr. Bourgeault was not alone in the vehicle. When Cst. Lowe approached the vehicle, Mr. Bourgeault had his vehicle registration and insurance ready. Mr. Bourgeault said he lived just around the corner. Cst. Lowe noted that he slurred his words. [ 6 ] Cst. Lowe informed Mr. Bourgeault that he had been pulled over due to his driving actions. After a “pregnant pause”, Mr. Bourgeault said he was about to miss the turn. [ 7 ] Cst. Lowe noted that Mr. Bourgeault had red, glossy eyes. Cst.

Lowe asked where he had come from. Mr. Bourgeault referenced the Valley View Inn, however no such place exists in Peace River. He was noted to have a “Rivers” stamp on his hand which Cst. Lowe recognized as a stamp placed on patrons who attend Rivers Bar in Peace River. [ 8 ] Constable Lowe asked for his driver’s licence. Mr. Bourgeault produced it. Cst. Lowe asked Mr. Bourgeault his date of birth. When Mr. Bourgeault answered, Cst. Lowe noted some slurring of his words. [ 9 ] Cst. Lowe noticed a strong odour of liquor from the vehicle, and confirmed with the passengers that they had been drinking. He asked Mr.

Bourgeault how much he had had to drink. At first he answered “I’ve been good” and then replied “nothing”. He was observed to have a blank, flushed look on his face. [ 10 ] Since Mr. Bourgeault had not admitted to drinking, Cst. Lowe asked him to exit the vehicle to isolate him and determine if he had been drinking. They walked to the police truck. Constable Lowe noticed a strong smell of alcohol from Mr. Bourgeault’s breath. [ 11 ] Cst. Lowe was of the view that he had reasonable and probable grounds to believe that Mr. Bourgeault was impaired. Cst.

Lowe arrested him, cuffed him and placed him in the back seat of the police truck. [ 12 ] Cst. Lowe read Mr. Bourgeault his ss. 10(

a) and 10(

b) Charter rights and made a breathalyzer demand. [ 13 ] They left the scene and proceeded to the Peace River RCMP detachment, arriving at 4:21 a.m. [ 14 ] At the detachment, Mr. Bourgeault was noted to be rude, belligerent and angry. He requested to call a lawyer. [ 15 ] Shortly after 5:00 a.m., while still attempting to speak to legal counsel, Mr. Bourgeault requested his asthma inhaler. Cst. Lowe did not have it. Mr. Bourgeault was argumentative. At approximately 5:30 a.m., he repeated his request for his inhaler and again became argumentative.

He denied that he was having an asthma attack. [ 16 ] At 5:37 a.m., police requested that Mr. Bourgeault provide breath samples. Mr. Bourgeault was upset, angry and uncooperative, repeatedly requesting his asthma inhaler. EMS was contacted at 5:39 a.m. EMS assessed Mr. Bourgeault in cells. Cst. Lowe observed EMS administer something to Mr. Bourgeault through a breathing apparatus. EMS advised Cst. Lowe that since they had administered medications, they were compelled to transport Mr. Bourgeault to hospital. At 6:25 a.m. Mr.

Bourgeault was released from hospital and transported back to the RCMP detachment. [ 17 ] A breath sample was taken at 6:41 a.m. [ 18 ] At 6:52 a.m., Mr. Bourgeault was noted to be sleeping and snoring on the bench in the cell area. [ 19 ] A further breath sample was taken at 7:02 a.m. III Trial Proceedings [ 20 ] At trial, the Crown was unable to rely on the Certificate of Analyses as conclusive proof of the concentration of alcohol in Mr.

Bourgeault’s blood at the time of driving because the samples were not obtained within two hours of the time when the offence was committed, as required by s 258(1)(c)(ii) of the Criminal Code . [ 21 ] Instead, the Crown relied on a forensic alcohol expert’s extrapolation report based on the Intoxilyzer readings as evidence of Mr. Bourgeault’s likely level of intoxication at the time of driving. [ 22 ] The trial judge held that aside from the issue of the actual blood alcohol concentration, the essential elements of the “08” charge were conceded by Mr.

Bourgeault’s counsel to have been proven beyond a reasonable doubt. The trial judge held that it was unclear whether, in the course of medical treatment, Mr. Bourgeault had been administered medication between the time of driving and the time he provided samples. As medication may have impacted the accuracy of the breath samples, he acquitted Mr. Bourgeault of the

“08” charge. [23] The trial judge held, however, that the Crown had established beyond a reasonable doubt that Mr.

Bourgeault’s ability tooperate a vehicle was impaired, and the impairment was due to the consumption of alcohol. [24] Citing R v Andrews, 1996 ABCA 23, 178 AR 182, R v Stellato (1993), (ON CA), 61 OAC 217, 78 CCC(3d) 380 (CA), aff'd (SCC), [1994] 2 SCR 478, (1994), 90 CCC (3d) 160 and R v McKenzie (1955), (AB KB), 111 CCC 317, 20 CR 412 (Alta Dist Ct), the trial judge held that any degree of impairment from alcohol in the operation of amotor vehicle, if proven beyond a reasonable doubt, is sufficient to support a conviction of impaired driving.

While conduct showing amarked departure from the norm will usually allow the court to draw an inference of impairment, lack of a marked departure from thenorm does not mean the degree of impairment required for conviction is lacking. [25] The trial judge stated (Transcript, 61/16-22): It is conceded and clear that the accused did consume alcohol, and had alcohol in his system at the time of driving. If the court does, orwere to find that his ability to drive was impaired, I would have no doubt in finding that it was caused by alcohol.

There was an odour ofalcohol coming from him, and even if the expert report is not accepted for the purpose of saying exactly what his alcohol level was at thetime of driving, I am satisfied beyond any doubt that it can be used, and would be used to indicate that he had alcohol in his system. [26] The trial judge cross-referenced the extrapolation report, which described symptoms of impairment, to the physical signs ofimpairment exhibited by Mr. Bourgeault, including red glossy eyes, a flushed face or tone, a blank look at one point, the raised emotionsexhibited by Mr.

Bourgeault including inappropriate emotions, and then falling asleep. Further, the trial judge relied on the fact that, attimes, Mr. Bourgeault responded to questions which had not been asked and on one or more occasion, he stammered or stuttered inresponding. [27] The trial judge noted that Mr. Bourgeault told Cst. Lowe that he was coming from a place that did not exist, and he had a“Rivers” stamp on his hand suggesting he had been to a bar in Peace River. Finally, the trial judge relied on the driving pattern as part ofthe totality of the evidence. [28] The trial judge convicted Mr.

Bourgeault of impaired driving. In finding the Crown had proven beyond a reasonable doubtthat Mr.

Bourgeault’s ability to operate a vehicle was impaired by alcohol, he stated (Transcript, 63/17-25): In this case the driving pattern, when taken together with the slurred speech, the physical signs of impairment, and all of the otherindicia, including his inappropriate emotional state and his manner in which he dealt with this entire situation, I am satisfied that thatproof is sufficiently deviant from the norm that I am able to, and I do, draw the inference beyond any reasonable doubt that the accused’sability to operate a motor vehicle was impaired to a degree, and that impairment was due to the consumption of alcohol.

IV Appeal Proceedings [29] During the course of argument during the appeal, I questioned whether the trial judge was entitled to rely on the expertextrapolation report when he had previously rejected the accuracy of the Certificate of Analyses which formed the basis for the report. [30] As well, in the course of argument, counsel for Mr. Bourgeault took the position that defence counsel had erred inacknowledging at trial that Mr. Bourgeault had alcohol in his body and that he smelled of alcohol. [31] The Crown argued that Mr.

Bourgeault was making a Charter challenge on appeal regarding exclusion of roadside evidence,and should be precluded from doing so as he had not provided a Charter notice either at trial or on appeal. [32] The appeal hearing was adjourned to allow the parties to provide additional written submissions on these issues and to presentfurther oral argument.

Both parties provided further written submissions and declined to make further oral argument. [33] Following the appeal hearing, the Supreme Court of Canada issued its decision in R v Mian, 2014 SCC 54, regarding thedefinition of a “new issue”, and the circumstances in which an appellate court can raise a new issue.

The Supreme Court held thatappellate courts have the discretion to raise a new issue, but this discretion can be exercised only in rare circumstances and solely wherefailing to raise this new issue would risk an injustice: R v Mian, 2014 SCC 54 at para 41. [34] I invited further submissions from counsel. [35] In its Second Supplementary Memorandum, the Crown submitted that the issue I had raised was not a new issue as defined inMian, as all matters of evidence relied upon by the trial judge were in issue on appeal, including the extrapolation report. I agree.

V Issues [36] The Court will address the following issues: 1) Is Mr. Bourgeault precluded from raising any issue due to his failure to provide a Charter notice? 2) Can defence counsel withdraw an acknowledgment made by counsel on the record at trial which was prejudicial to the accused?

3) Did the trial judge err by considering inadmissible evidence obtained while Mr. Bourgeault’s s. 10(

b) Charter rights were temporarily suspended? 4) Did the trial judge err in relying on the extrapolation report as evidence of impairment, having rejected the accuracy of the Intoxilyzer readings? VI Standard of Review [ 37 ] A

summary conviction appeal court may set aside a conviction where the verdict was unreasonable, unsupported by the evidence, or wrong on a question of law: ss 686(1)(a)(

i) and (ii). [ 38 ] On findings of fact, the standard is palpable and overriding error. The trial judge is entitled to deference on findings of fact and factual inferences. To be interfered with on appeal, they must be clearly wrong, unreasonable or unsupported by the evidence: R v Clark , 2005 SCC 2 at para 9 , [2005] 1 SCR 6. [ 39 ] On questions of law, the standard of review is correctness: Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235. VII Analysis 1. Is Mr.

Bourgeault precluded from raising the admissibility of evidence? [ 40 ] The issue of whether the trial judge could rely on evidence of impairment obtained before Mr. Bourgeault was advised of his right to counsel was raised for the first time on appeal. Mr. Bourgeault did not file a Charter notice nor was a Charter breach raised at trial. Perhaps not surprisingly then, the trial judge did not address whether any of the evidence obtained might be inadmissible to prove impairment. [ 41 ] Mr. Bourgeault does not allege that he was denied his s 10(

b) right to counsel, or that it was not provided in a timely way. Instead, he relies on the body of case law following R v Orbanski , 2005 SCC 37 , [2005] 2 SCR 3 in support of the proposition that investigative roadside screening for impaired drivers and the temporary suspension of the right to counsel that ensues is constitutionally justified as the evidence collected cannot be used to incriminate the accused at trial. [ 42 ] Neither counsel raised the issue of the inadmissibility of the compelled evidence at trial. Mr.

Bourgeault submits that this occurred through inadvertent error, and in any event the trial judge was required, as a matter of law, to determine admissibility of the evidence. [ 43 ] In Crown’s first Memorandum filed prior to the appeal hearing, it acknowledged that evidence garnered as part of an investigative technique may be excluded if it was obtained prior to Charter rights being given. It was not until the Supplementary Memorandum was filed after the appeal hearing, that the Crown argued Mr.

Bourgeault’s appeal involved a Charter challenge and that he should be precluded from arguing this ground of appeal due to his failure to file a Charter notice at trial. [ 44 ] The Crown acknowledges that its late position on this issue suggests the Crown was not prejudiced and was able to adequately address Mr. Bourgeault’s ground of appeal.

Further, the Crown failed to outline the evidence it would have called or how it would have conducted its case differently had a Charter notice been filed. [ 45 ] When an accused seeks to exclude evidence under s 24(2) of the Charter for breach of a Charter right, timely notice must be given to both the Crown and the court to allow the Crown to adequately prepare and to afford the court the opportunity to focus on the alleged breach while the evidence is being heard and to give proper regard to all the circumstances in determining whether there has been a Charter breach and if so, whether the admission of the impugned evidence would bring the administration of justice into disrepute: R v Dwernychuk , 1992 ABCA 316 , 135 AR 31. [ 46 ] This principle is reflected in s. 1 of the Constitutional Notice Regulation , Alta Reg 102/1999 which requires a 14 day notice that a party will seek a remedy under s. 24(1) or (2) of the Charter in Provincial Court proceedings.

Similarly, s. 12 of the Court of Queen’s Bench Criminal Proceeding Rules (Practice Note 6) requires that such an application be served on the parties and the Court seven days prior to the pre-trial conference or 60 days before trial, whichever is earlier, or as directed by the Court. [ 47 ] In order to raise a Charter issue for the first time on appeal, there must be a sufficient evidentiary record for appellate consideration of the issue, and it must not be a situation where the accused failed to raise the issue at trial for tactical reasons.

As well, the court must be satisfied that no miscarriage of justice will result. In particular, the court must consider whether a satisfactory answer to the new argument could have been given by the opposing parties if the argument had been raised at trial: Aftergood v Alberta (Minister of Municipal Affairs) , 2006 ABCA 154 , 384 AR 189. [ 48 ] The Court in Aftergood noted that there is likely to be more latitude in applying these criteria in a criminal matter where the liberty of the accused is engaged.

However, the Court of Appeal has declined leave to raise Charter challenges in a vacuum where the parties at trial were not provided the opportunity to lead and test all relevant evidence and the trial judge to consider, weigh and rule on that evidence : R v Portela , 2007 ABCA 150 , 409 AR 65. [ 49 ] Defence counsel cites R v Phipps , 2010 ABQB 661 , 506 AR 313 for the proposition that a s 24(2) analysis is not required where the issue is admissibility of evidence collected during the temporary suspension of the right to counsel during the screening stage.

In Phipps , Moreau J. held at para 42 that a s 24(2) analysis was not required, as the constitutionality of provisions having the effect of

suspending the right to counsel temporarily during the screening stage rests partly on the premise that the evidence collected during thatprocess cannot be admitted to incriminate the accused. Nonetheless, a review of the court record on Phipps indicates the accused did filea Charter notice at trial. [50] In my view, it would have been prudent for Mr. Bourgeault to have provided notice outlining the issue now forming a groundof appeal. The admissibility of the evidence in question relates to Mr. Bourgeault’s s 10(

b) rights. However, his failure to file such anotice, in my view, is not fatal. [51] In my view, there is a sufficient evidentiary record before the Court on this issue. I am satisfied that defence counsel’s failureto raise the issue at trial was not done for tactical reasons. As well, I am satisfied that no miscarriage of justice will result. The Crowndid not raise an objection when it filed its appeal Memorandum, nor did it raise any prejudice or point to additional evidence it wouldhave led. [52] Therefore, I will consider this ground of appeal 2.

Can defence counsel withdraw an acknowledgment made on the record at trialwhich was prejudicial to the accused? [53] During closing argument at trial, defence counsel stated (Transcript 53/39 – 54/4): The question here is with respect to Mr. Bourgeault’s impairment is whether or not his ability to drive was impaired by alcohol. We haveevidence that there was alcohol in his body, that there was a smell of alcohol, and—and that I—I—I—like I can admit on the record thatthat is something that is properly before the court.

We also have evidence that at some point later in time there is a reading of alcoholwithin his body as well, although I submit we can’t use that to impute any particular reading at the time of his –of his stop [...]. [54] Counsel now applies to withdraw that statement. [55] It is clear that counsel’s statement was made while attempting to establish that Mr. Bourgeault’s driving was not erratic to thepoint that it could be tendered as evidence of impaired driving. He conceded that there was evidence to the effect that Mr.

Bourgeaulthad alcohol in his body, but he did not concede that the driving demonstrated such a departure from normal driving behavior that theCourt could conclude that he was undoubtedly impaired by alcohol. [56] In rendering his decision, the trial judge held (Transcript 61/16-22): It is conceded and clear that the accused had consumed alcohol, and had alcohol in his system at the time of driving. If the court does, orwere to find that his ability to drive was impaired, I would have no doubt in finding that it was caused by alcohol.

There was an odour ofalcohol coming from him, and even if the expert report is not accepted for the purpose of saying exactly what his alcohol level was at thetime of driving, I am satisfied beyond any doubt that it can be used, and would be used to indicate that he had alcohol in his system. (emphasis added) [57] An admission accepted by the Court becomes part of the Court record and as such, it becomes difficult to withdraw, althoughthe court has discretion to do so.

An accused is able to withdraw an admission by counsel on his behalf, if the accused can prove that theadmission was made either inadvertently, by mistake, with a fundamental misunderstanding, or because of his counsel’s incompetence.A further consideration is the potential prejudice to the Crown if the admission is withdrawn: R v Baksh (2005), (ON SC), 199 CCC (3d) 201 at para 111 and 118 (Ont SCJ), aff’d 2008 ONCA 116, leave denied [2008] SCCA No 155. [58] In my view, the statements made by counsel do not amount to an admission. An admission dispenses with proof.

In this case,the statement in question was made during defence counsel’s closing submissions. Counsel conceded that there was evidence that Mr.Bourgeault had alcohol in his body and that there was a smell of alcohol. He was simply outlining some of the evidence that was alreadyon the record.

It was not an admission that dispensed the Crown of their burden of proving, beyond a reasonable doubt, the elements ofthis offence. [59] If the submission can be construed as amounting to an admission as to the admissibility of the evidence, in my view it wasinadvertent and it would be a miscarriage of justice not to allow it to be withdrawn. [60] In its supplementary Memorandum, the Crown argues that the evidence Mr.

Bourgeault ingested medication was hearsay, andif defence counsel is allowed to resile from his statement on the record, the Crown should not be hampered by its failure to object to thehearsay evidence at trial. [61] The contested evidence is that of Cst. Lowe. He observed EMS attend to Mr. Bourgeault in cells and administer something tohim through a breathing apparatus. Those are his direct observations. He was told by the EMS worker that because they had given Mr.Bourgeault medicine, they had to transport him to hospital. There is no evidence on whether Mr.

Bourgeault was given additionalmedication at hospital. [62] The Crown has the burden of proving the essential elements of the offence of impaired driving beyond a reasonable doubt.The hearsay came from its own witness. The Crown could have called the EMS worker to testify as to the exact treatment administeredand subpoenaed the hospital records to determine whether Mr. Bourgeault received further medication while in hospital. In any event,Cst. Lowe’s direct observations were sufficient to taint the efficacy and reliability of the Intoxilyzer readings.

3. Did the trial judge err by considering inadmissible evidence obtained while Mr.Bourgeault’s s. 10(

b) Charter rights were temporarily suspended? [63] Mr. Bourgeault submits that the trial judge erred in relying on conscriptive evidence obtained through Cst. Lowe’s roadsidescreening as proof of his guilt of impaired driving. Mr. Bourgeault argues that when Cst. Lowe asked for his driver’s licence and his dateof birth, his routine traffic stop became an impaired investigation. From that point forward until Mr. Bourgeault was advised of his rightto counsel, the evidence was conscripted and inadmissible for any purpose other than to assist Cst.

Lowe in establishing reasonable andprobable grounds to make the breath demand. [64] The Crown argues that all of the roadside evidence was admissible except for Mr. Bourgeault’s statement that he had comefrom a place that did not exist, and its exclusion would not have changed the result. [65] Under ss 166 and 167 of the Traffic Safety Act, RSA 2000, c T-6, police may stop individuals for the purposes ofadministering and enforcing the Act. Police are authorized to check on the sobriety of drivers during routine traffic stops. Where thedriver is detained for such investigatory purposes, his or her s 10(

b) Charter right to counsel would be triggered were it not for thetemporary suspension of those rights to enable police to screen drivers as permitted under s 254(2) of the Criminal Code. However, theconstitutionality of the temporary suspension of s 10(

b) rights depends in part on the inadmissibility of the evidence obtained in thatscreening process as direct evidence to incriminate the driver: Orbanski at para 58. [66] This does not mean, however, that all of the evidence obtained prior to the driver being advised of his right to counsel isinadmissible to prove impairment. It is only evidence obtained from the compelled direct participation by the motorist and roadside testsor police questioning about alcohol consumption that is inadmissible. Passive observations while carrying out authorized duties areadmissible to prove impairment.

This would include observations of signs of impairment such as the strong odour of alcohol, blood-shotand glassy eyes, slurred speech, and unsteadiness of gait upon exiting the vehicle: Orbanski at para 58. [67] Crown relies on R v Quenneville, 2009 ONCA 325 and R v Brode, 2012 ONCA 140, 286 CCC (3d) 347 as authority for theproposition that courts should narrowly interpret the limitation on the use of evidence of impairment acquired during the temporaryroadside suspension of s. 10(

b) rights. [68] In Quenneville, the officer suspected that the accused was impaired and directed him to exit his vehicle. The Courtdetermined that the observations made as he exited the vehicle, even though he did so in response to a direction from the officer, did notresult from the compelled direct participation in a roadside test and were therefore admissible.

Similarly, the border crossing officer inBrode directed the driver to get out of his car and observed that he stumbled, had bloodshot eyes and spoke in a loud and cocky manner.That evidence too, was admissible. [69] However, in R v Brookwell, 2008 ABQB 545, 456 AR 343, Romaine J. summarized the relevant principles from Orbanskiand R v Milne (1996), (ON CA), 90 OAC 348, 107 CCC (3d) 118 (CA), leave denied [1996] SCCA No 353, [1996] 3SCR xiii and noted that acceptable investigative techniques that compel a driver to participate directly in the creation of self-incriminating evidence can only be used to confirm the officer’s suspicion of impairment, not as direct evidence to incriminate the driver.This would encompass questions regarding alcohol consumption, requests to move to another vehicle to provide a roadside breath sampleand physical coordination tests: at para 29.

See also R v Flores, 2007 ABQB 528, 427 AR 337. [70] Similarly, Moreau J. in Phipps distinguished between passive observations made by the officer while conducting a traffic stopand observations made and evidence gathered when the officer embarked on an impaired driving investigation, specifically observationsof the appellant after the officer asked him to exit his vehicle. [71] However, Greckol J. reviewed all of the above authorities in R v Kangas, 2013 ABQB 383, 565 AR 67 and concluded thatsuch evidence was admissible where there was no evidence that the driver was asked to exit the vehicle as part of a sobriety test. [72] The Court in R v Visser, 2013 BCCA 393, 342 BCAC 129 also reviewed the case law on this issue.

It concluded that the onlyreasonable inference to be drawn from the officer's request of the respondent to exit his vehicle in that case was to assess whether therewas a basis upon which the officer could make a breathalyzer demand.

The Court concluded that the observational evidence obtainedfrom the moment he directed the respondent to exit his vehicle should not have been admitted at trial to prove guilt on the impaireddriving charge. [73] I prefer the reasoning in Phipps, Flores, Brookwell and Visser which distinguishes between evidence obtained byobservations of an officer carrying out authorized duties in the course of the traffic stop from evidence following the point where theofficer launches into an impaired driving investigation. [74] In my view, once Cst. Lowe confirmed with the passengers that they had been drinking and asked Mr.

Bourgeault how muchhe had consumed, he was no longer fulfilling authorized duties in the course of a traffic stop. His observations to that point areadmissible. [75] Mr. Bourgeault denied he had been drinking. Cst. Lowe’s request that Mr. Bourgeault exit the vehicle in order to isolate thesmell of liquor from his breath was done for no other purpose than to screen him for possible impairment and to form reasonable andprobable grounds to make a breath demand. Cst. Lowe’s evidence confirmed this as he admitted that based on Mr. Bourgeault’s denial ofdrinking, and his inability to detect alcohol from Mr.

Bourgeault’s breath, he asked him to step out of the vehicle to isolate him. [76] The only roadside evidence which should have been relied upon to prove impairment was the evidence obtained to the pointwhere Cst. Lowe launched into the impaired investigation, and the admissible evidence obtained following a reasonable opportunity forMr. Bourgeault to exercise his s 10(

b) rights. [77] The trial judge cited a number of factors in concluding that Mr. Bourgeault had alcohol in his body, including the odour of

alcohol coming from him, red glossy eyes, flushed face or tone, blank look, raised or inappropriate emotions, falling asleep, answers to unasked questions, stammering, stuttering, the River’s stamp, and the reference to an inexistent inn. [ 78 ] The trial judge refers to these indicia in a global way, without distinguishing between inadmissible roadside evidence and other evidence. As such, it is impossible to determine whether exclusion of inadmissible roadside evidence would have altered his conclusion in this respect. 4.

Did the trial judge err in relying on the extrapolation report as evidence of impairment? [ 79 ] The trial judge also relied on the expert report to support a finding that Mr. Bourgeault had alcohol in his body. The trial judge reasoned that even if the expert report could not be used to establish Mr.

Bourgeault’s blood alcohol level, it could be used to establish that he had alcohol in his body. [ 80 ] The Crown submits that the Appellant’s symptoms did not change after his trip to the hospital, and in any event judicial notice can be taken that any medication that might have contained alcohol would not increase the blood alcohol level to the extent reported in the extrapolation report, which suggests a level of between 150 and 169 mg% at the time of driving. The Crown submits that even the equivalent of the ingestion of two drinks at the hospital could not have produced that blood alcohol level.

All that is required to prove the charge is some ingestion of alcohol and consequential symptoms of impairment. [ 81 ] The Certificate of Analyses indicates that Mr. Bourgeault had 130 mg of alcohol in 100 ml of blood. However, as previously noted, these samples were not obtained within two hours of the time when the offence was committed, as required by s 258(1)(c)(ii). [ 82 ] These Intoxilyzer readings formed the basis of an expert report which extrapolated the readings retroactively and provided an opinion that Mr.

Bourgeault’s likely blood alcohol level at the time he was driving was between 150 and 169 mg in 100 ml of blood. This report was also entered into evidence without the expert witness being available for cross-examination. [ 83 ] It is trite law that the weight of an expert’s opinion depends on evidence establishing the factual underpinnings and assumptions relied on by the expert. The Crown had the onus of proving the assumptions underlying the expert’s opinion before the trial judge could give any weight to the opinion. [ 84 ] The expert opinion is premised on the Certificate of Analyses.

The readings were found to be unreliable. [ 85 ] Several other factual assumptions which form the basis of the opinion proffered were simply not in evidence, such as Mr. Bourgeault’s weight, the rate at which alcohol was consumed, and Mr. Bourgeault’s tolerance to alcohol. [ 86 ] Nor does the report take into consideration (as the trial judge did) that Mr. Bourgeault was administered some type of medication prior to the breath samples being taken. [ 87 ] The trial judge expressly found that the accused might have been given medication containing alcohol.

However, the expert’s report did not address the impact of medication on the findings. [ 88 ] Recently, the Court of Appeal in R v Flight , 2014 ABCA 185 , [2014] AJ No 563 discussed expert extrapolation evidence in impaired driving trials. The Appellant argued some of the assumptions had not been proven; namely, the Appellant’s weight and that “bolus” consumption (consuming a large amount of alcohol in a short period of time) had not occurred. This, coupled with the expert’s testimony that bolus drinking is rare and dangerous satisfied the Court that the Crown had proven this assumption.

The expert testified the Appellant’s weight did not affect the elimination rate of alcohol. The Court held that a trial judge is entitled to draw common sense inferences in assessing such evidence. [ 89 ] Here, the expert did not testify and there is no evidence from Mr. Bourgeault that he consumed alcohol. Further, there is evidence Mr. Bourgeault received medical treatment and medication before he provided breath samples. The Crown has the burden of establishing that the medication would not have affected the Intoxilyzer readings. It failed to do so.

The trial judge simply did not address the impact of the medication and whether the Crown had proven the other underlying assumptions in determining the weight to be attributed to the expert evidence for the purposes of establishing that the impairment was due to alcohol. VIII Conclusion [ 90 ] I conclude that the trial judge erred in failing to address the admissibility of some of the roadside evidence. Further, having found that the medication provided to Mr.

Bourgeault may have contained alcohol, he erred in not addressing the impact of this finding on the weight of the expert evidence as supporting the impaired charge. [ 91 ] The Court may order a new trial, depending on whether there is any evidence upon which a properly instructed jury could enter a conviction: R v Roy , 2012 SCC 26 , [2012] 2 SCR 60 at para 53 . I find that there is sufficient evidence on the record to warrant a new trial. [ 92 ] The appeal is allowed, the conviction quashed and a new trial ordered. Dated at the Town of Peace River, Alberta this 24 th day of October, 2014.

Dawn Pentelechuk J.C.Q.B.A. Appearances: James Brydon, Q.C. Attorney General of Alberta for the Crown Jamel H. Chadi for the Appellant