R. v. Dobson, 2016 ONCJ 136

Information No. 2811-998-14-10735-00 CITATION: R. v. Dobson , 2016 ONCJ 136 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. TIMOTHY DOBSON REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD on JANUARY 5, 2016, at OSHAWA, Ontario

APPEARANCES : D. Bronowicki Counsel for the Crown R. Aitken Counsel for Timothy Dobson ONTARIO COURT OF JUSTICE TABLE OF CONTENTS REASONS FOR JUDGMENT PAGE 1 REASONS FOR SENTENCE PAGE 15 Transcript Ordered: January 5, 2016 Transcript Completed: March 11, 2016 Ordering Party Notified: March 11, 2016

TUESDAY, JANUARY 5, 2016 THE COURT: If your student wants to grab a chair to sit at counsel table, I am more than happy for him to do so. MR. AITKEN: Yes. It’s Jordan Tekenos-Levy, my articling student, Your Honour. COURTROOM CLERK: Can you spell that, please? MR. TEKENOS-LEVY: T-E-K-E-N-O-S-L-E-V-Y, first initial J. COURTROOM CLERK: Thank you. THE COURT: All right. Turning to the matter of Timothy Dobson. I will point out that, Mr. Aitken, you also ordered a transcript onyour other Mr.

Dobson client, so again I’ve had to deal with two Dobsons over the same time period, but this matter has now gotten tothe point of completion. REASONS FOR JUDGMENT WAKEFIELD, J. (Orally): Timothy Dobson stands charged that on the 5th day of February 2014, he operated a motor vehicle while his blood alcohol level wasabove the legal limit. The trial commenced January 20th, 2015, and continued January 21st, February 11th, May 6th, October 30th, and almost culminated November 13th, with additional reply written submissions in the interim.

During the course of the trial, I heard from the arresting officer, Detective Todd Gribbons, whose testimony was the entirety of thecrown case, together with the exhibits arising from his testimony. The defendant testified, as did his spouse, Carrie-Ann LeBlanc,followed by the defence expert, Dr. Joel Mayer. In the wings, though not called, was the crown expert, Dr. Robert Langille, portions ofwhose report was put to the defence expert. A comprehensive Charter application was filed, together with supporting case law.

While setting out clearly triable issues in the Charternotice, by trial’s end, defence counsel quite properly abandoned the Charter application and focused on the remaining single live issue,namely: whether the defendant’s regurgitation of the stomach contents raised a reasonable doubt as to the reliability of the breath testresults. The police investigation into the defendant commenced with Detective Gribbons observing the defendant driving at a speed the officerfelt was too fast for the snowy conditions that evening.

He also observed what he believed was the lack of a seatbelt used (though notcharged) and what the officer described as a “glazed look” on the defendant. After initial discussions with the defendant, the officer concluded a reasonable suspicion of the defendant’s consumption of alcohol andmade the approved screening device demand. Upon the arrival of the ASD, the defendant blew into the device and produced a fail. Hewas arrested and transported to the nearest police station where he provided two suitable samples into an approved instrument resultingin truncated readings of 230 and 210.

He was provided the usual paperwork and released. The crown position is that those truncated readings amount to proof beyond a reasonable doubt. The defence submitted that the statutorypresumptions that the readings are accurate at the time of operating the motor vehicle are rebutted by the regurgitation of stomachcontents making the readings unreliable, or at least raising a reasonable doubt as to the reliability of those readings.

In the decision of St.-Onge Lamoroureux, [2012] S.C.C. 57, the Supreme Court confirmed that the test was whether a reasonable doubtwas raised, which is all that is necessary to rebut the statutory presumptions. As such, the principles set out in R. v. W.(D.), (SCC), [1991] S.C.J. No. 26, set out the framework of how to assess the defence evidence and specifically the testimony of thedefendant.

The defendant testified. He described his evening’s activities and set out specifically the types, numbers, and approximate times of alcoholic consumption. He advised of three quarters of a can of MacLay’s Beer, one and a half cans of Red Brew (a near beer), and a final pint of Moosehead beer between 5:00 p.m. and 7:00 p.m. to 7:25 p.m. in the evening. While awaiting the ASD’s arrival, the defendant testified to biting into and chewing a piece of underarm deodorant.

He described his mental health challenges, and most importantly his challenges dealing with acid reflux and the embarrassment he feels when the regurgitation occurs. He described his continuing efforts to reduce his embarrassment by minimizing the visible effects of regurgitation. Mr. Dobson painstakingly went through the video of his breath tests, pausing the video as he pointed out each instance of techniques he used to compensate for his anxiety issues, and each instance he saw himself suffering from regurgitation, and swallowing the contents without advising the breath technician.

During his testimony, the defendant was obviously anxious and uncomfortable. While he was in the witness box, it was apparent each time the regurgitation occurred. It is not germane to the ultimate disposition in this trial whether the breath technician was or should have been aware of the defendant’s condition. Indeed, I did not perceive any visible signs of the defendant regurgitating when viewing the video, nor could I hear the same sounds the defendant was making in the witness box when testifying before me.

Then again, the noise produced by the Intoxilyzer may very well have masked such sounds from the defendant. Ms. LeBlanc corroborated the defendant’s mental health and abdominal challenges. I find as a fact, and accept, that the defendant has both anxiety issues and acid reflux, which results in regurgitation. While the crown did not have opportunity to make submissions as to the validity of the defendant’s condition, it would be a challenge for the crown to convince me otherwise in spite of my own observations of the defendant’s regurgitation in the witness box, together with the medical letters filed.

However, again, the result in this trial did not require the additional time for crown submissions on the legitimacy of the defendant’s health issues. I accept that the defendant believed in his testimony. Mr. Dobson convinced me that he certainly believed that either the deodorant or the acid reflux resulted in unreliable approved screening device and Intoxilyzer results. He has clearly suffered from the acid reflux for many years and it has severely impacted on his enjoyment of life. However, as the crown set out in detail, Mr. Dobson’s testimony was replete with contradictions.

While initially attesting to being a light drinker, he filed a medical report which included a concern for alcohol abuse. With respect to that medical report, he initially claimed the doctor asked how much he purchased and did not ask how much the defendant consumed. Later, Mr. Dobson confirmed the doctor did ask how much alcohol he consumed. He conceded alcohol binging, but asserted that would not be an alcohol problem. Mr.

Dobson claimed to have provided his notes of the incident to counsel, and then seemed to know he had not, afterwards asserted that holding notes on his lap was the same as giving the notepaper to counsel. When advising the booking officer as to his last lorazepam pill, being two hours earlier, the defendant described that, “I threw out a number I thought was harmless. It wasn’t intentional,” yet claimed he was not untruthful with the police.

His testimony as to rights to counsel resulted in his claiming a flashback memory of the event, yet elsewhere asserted that his memory at trial was more accurate than when answering the officer’s questions. While I accept that many people questioned by police may understate the amount of alcohol consumed prior to testing, which by itself should not destroy credibility, the constant variations as to alcohol consumed and the type of beers and near beers during his cross- examination also bring credibility into question.

These are just a sampling of the contradictions set out in crown submissions, and result in my finding the defendant’s testimony as unreliable. I do acknowledge that assessing a witness’ credibility, who suffers from anxiety, creates a different context in assessing the ability to be consistent. Assuming that my reliability concerns arose from Mr. Dobson’s mental health challenges, then the inconsistencies in his testimony would not in themselves be fatal. Unfortunately for Mr.

Dobson, the legal principles set out in W.(D.) do not result in the test being the defendant’s belief, but rather whether the trier of fact accepts or is left in reasonable doubt by the defence testimony. My duty is to assess the defendant’s testimony in light of all the evidence. The evidence of the Intoxilyzer and the defence expert witness cumulatively dissolve any reliability in the defence testimony. Dr. Mayer accepted the calculations set out in the crown expert report as well as the deodorant not being capable of producing vapours at body temperature which would impact the instrument readings. Dr.

Mayer confirmed that based on the defendant’s reported alcohol

consumption, Mr. Dobson would have had negligible alcohol left by the time of the first breath test and zero alcohol by the time of the second test. In other words, by the time of the second test, all stomach alcohol would have been absorbed and there would be no alcohol left to regurgitate into the oral cavity and produce an unreliable Intoxilyzer reading. He agreed that the two truncated readings were consistent to each other, which would require similar amounts of alcohol in the oral cavity to produce such consistent readings 23 minutes apart.

That would require the defendant regurgitating similar amounts of alcohol into the mouth cavity 23 minutes apart from each other, at the exact times of the two breath tests, after the stomach no longer had alcohol to regurgitate. Defence did submit that the defendant’s testimony as to his drinking pattern that evening was not consistent with Dr.

Mayer’s acceptance of the crown expert’s opinion letter and its factual underpinnings as follows: “Male, weight, 181 lbs, and starting at approximately 5:00 p.m., consumes three quarters of a can of MacLay’s beer (3/4 of 355 mL containing 5% alcohol), one and a half cans of Red Brew (each can 355 mL containing 0.5% alcohol) to 6:46 p.m. A final pint of Moosehead beer (341 mL containing 5% alcohol) was consumed from approximately 7:00 p.m. to 7:25 p.m.” The defendant testified that he was not keeping track of specific times of each drink and was unsure of some of the times involved.

That lack of precision as to each drink would parallel the vast majority of litigated drinking patterns as it would be the rare defendant who recorded the time of each drink, not expecting to be pulled over while driving afterwards. The expert opinion took into account the rough time ranges previously provided by the defendant. In my view, it would be completely speculative to now extend the consumption testimony of the defendant to the point of assuming sufficient stomach alcohol to produce oral cavity alcohol residue, let alone sufficient to produce two similar results at the exact times of each breath test.

The impact of Dr. Mayer’s testimony, which I accept on this point, is that the defendant’s history of alcohol consumption simply cannot be correct, and as such I reject the defendant’s testimony in this regard. Additionally, Dr. Mayer confirmed that his viewing of the breath test video did not reveal any improper procedures in the operation of the instrument, which I also accept. The defendant also asserted reliability concerns to the various involved officers not following the Alcohol Test Committee recommendation of observing a test subject for at least 15 minutes before each test.

Clearly, the defendant was left unaccompanied, though not unobserved, given the proliferation of video surveillance, whilst in the cruiser in the sally port, and for a period of time in the station. Leaving aside the lack of any testimony by the defendant as to post-driving consumption of alcohol, the ability to consume additional alcohol just prior to the Intoxilyzer tests, given the video surveillance, and the prior field search at the time of arrest, was negligible to the point of not creating a reasonable doubt.

The defendant’s understandable timidity in disclosing to the breath tech a condition he found profoundly embarrassing also resulted in Mr. Dobson masking or suppressing regurgitation in the presence of the officer would, in my view, also have continued in the presence of any other officer for the 15-minute recommended observation period. In any event, my conclusions are founded on the expert evidence as to the absence of any alcohol in the stomach by the time of the second test.

My conclusion is not affected by any noncompliance by the police as to visual observation of the defendant prior to the tests being conducted as recommended in the operator’s manual. Similarly, the defence expert also confirmed the conduct of the testing being appropriate. Defence also submitted that the lack of physical indicia of impairment in the defendant, together with his testimony of alcohol consumption, should cumulatively raise a reasonable doubt as to the accuracy of the breathalyzer. Dr.

Mayer did testify as to his surprise that the breath test readings would not result in more obvious signs of impairment. However, the expert’s surprise is not evidence that can give rise to reasonable doubt, as there was not any evidence as to the level of Mr. Dobson’s tolerance to alcohol, but merely the speculative expectation of Dr. Mayer. It follows that I find the evidence at trial does not leave me in reasonable doubt that the approved instrument was malfunctioning, or was operated improperly. I am satisfied beyond a reasonable doubt that the breath test readings in this matter are reliable.

Given the expert evidence that the defendant’s assertion as to alcohol consumption would have resulted in zero alcohol in the stomach at the time of the second test, the defendant’s testimony does not pass the W.(D.) analysis, and the crown has indeed proven its case beyond a reasonable doubt. Stand up, sir. And as such, you are found guilty as charged. Just have a seat again for a moment, please.

THE COURT: Submissions as to sentence today or on another date? MS. BRONOWICKI: I’m content to proceed today. MR. AITKEN: I’m content to proceed today, Your Honour. THE COURT: Yes. MS. BRONOWICKI: Thank you, Your Honour. As far as I’m aware, Mr. Dobson comes before the court with no prior criminal antecedence. In light of the extremely high readings, which are getting close to triple the legal limit, that is statutorily aggravating.

The crown is seeking a $2000 fine, a 12-month driving prohibition, and a 12-month period of probation with the only terms being that he report until counselling complete, and that he take counselling with respect to alcohol abuse. Subject to any questions, Your Honour, those would be the crown’s submissions with respect to sentence. THE COURT: Thank you. MR. AITKEN: Yes, Your Honour. Your Honour had the advantage of hearing Mr. Dobson earlier, and he talked about much of his life. He is about to be 41. He has a spouse who has been with him for 21 years now.

Basically, he helps out in the community doing volunteer work. He has been a self-employed contractor for 10 years now, but basically given his disability, to a large extent, his spouse supports Mr. Dobson, who earlier told me, I think his income last year was only several thousand dollars. While the blood alcohol is the high readings here, Your Honour, I note that the approved screening device was used and there was no really bad driving, other than perhaps very, very minor. Given Mr.

Dobson’s lack of ability to pay, I’m suggesting perhaps something more in the nature of $1200- 1500 would be appropriate, together with whatever surcharge, if Your Honour decides to impose one, and six months to pay. As to the issue of probation, I don’t think there’s clear evidence that Mr. Dobson’s drinking issues are recent drinking issues, so I would ask Your Honour not to impose probation on Mr. Dobson. THE COURT: Is there anything you’d like to say before I pass sentence? And then I’ll go back to the crown, seeing as she was about to rise. Anything you want to say, sir?

TIMOTHY DOBSON: I’m just shocked how long this has gone, the stress of it, the numbers they’re saying, the fact there was snow that evening, quite amounts, and people saying about my driving ability and stuff, and then referencing statements – it’s been rough, really rough on me, and I just want my health back. I’m maintaining a relationship with my doctor. I’ve now reached out to more professional doctors, ones that actually keep proper notes and stuff, and I’m continuing to do that. Alcohol is an issue. I’ve gone to a zero tolerance.

If I can get in trouble with what I think is fine, zero tolerance is my way of it now, especially with my wife – my spouse. THE COURT: That’s probably the safer route. It sounds like you’re reaching out in the community, and trying to get help from people to make sure – not just the drinking, but all of the other challenges you have in life are being addressed and supported. Isn’t that exactly what the crown is asking for by probation just to monitor – everything you’re already doing? TIMOTHY DOBSON: Yes. For like down here – for the alcohol abuse program, I’m a sponsor for somebody else, so I understand.

But if that’s what the court wishes at this time, I just – it’s been a long enduring, and frankly, going forward, without my licence, I’m done. THE COURT: I appreciate that’s going to be an issue. Did you bring it with you today by the way? TIMOTHY DOBSON: No. I left it with my dad’s vehicle. He’s the only one who drives. Within three months of me being an ADSL report – my insurance dropped me. I had to sign a waiver with my wife’s car that I wouldn’t drive it, and that’s without a conviction. That was just having a suspension. So I can’t afford insurance. I used to drive my dad....

THE COURT: You realize you need to turn the driver’s licence in? TIMOTHY DOBSON: Okay. THE COURT: All right. Was the crown’s concern the issue on probation? MS. BRONOWICKI: Yes. THE COURT: I don’t need to hear from you. MS. BRONOWICKI: Thank you, Your Honour. REASONS FOR SENTENCE WAKEFIELD, J. (Orally): Mr. Dobson, one, yes this has gone on for a very long time. I think both lawyers are also surprised it has gone on this long. Nobody really expected the issues to crop up the way they did. You have to understand that you have not been convicted for your driving ability.

Everybody that I heard from certainly did not say that you were weaving all over the place, that you were staggering, or anything like

that. You are convicted because the Intoxilyzer is a pretty accurate instrument, and we heard from the experts as to the one real issue I saw here, and I think it was a valid triable issue, it was quite right for your counsel to bring this to a trial, is one that simply was not borne out by the testimony of the expert.

I am concerned about some of the contradictions between the medical records and your self-perception, though that is not to say you do not have insight, but I believe that that insight can be strengthened through some community supervision, which is why I think the probation component is a very good idea, but at the same time, while the crown is quite correct in asking for a $2000 fine because of the aggravated level of your blood alcohol readings, for somebody who has only sporadic employment, and is going to obviously have even greater difficulties in making an income with the loss of the licence, I certainly agree with Mr.

Aitken that that has to be moderated in terms of the amount of the fine to give you a chance to keep your head above water. The probation, to my mind, is a way of balancing the books for the community, so the community knows that we all take drinking and driving very seriously, but we also want people to get better. There will be a fine in the amount of $1400. I picked that amount because there is still a victim surcharge of $420, which means there is a total of $1820. If it is not paid, the time in jail in default is estimated at 22 days. Mr. Aitken is asking for six months.

I will grant you the six months in which to pay the fine, but I am concerned that that is still going to challenging for you. I know Mr. Aitken will explain to you the procedure involved in applying for an extension of time to pay the fine. As long as I see that you are making regular, real contributions to pay down the fine, you will find that I am an easy person to give you additional time to continue acting in a responsible manner. What you do not want to do is just to ignore it for six months and then try and get some more time. As well, there will be a probation order for 12 months duration.

The terms are that you report in person to a probation officer immediately, and after that at all times and places as directed by the probation officer, or any person authorized by the probation officer to assist in your supervision. Your reporting requirement ends – so it does not necessarily have to be for the entire 12 months – when you have satisfied your probation officer that you have completed all of your counselling.

You will attend and actively participate in all assessments, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer, for any counselling to assist in mental health challenges, and alcohol abuse, because I expect there is a connection. I do not know that, I am not a professional. TIMOTHY DOBSON: No, that’s all through counselling for the one year, yes, and that’s what also contributed to me leading a zero tolerance.

That also helps with my anxiety and that, so this one year is a great step, but now I just feel like I’m falling back on myself now. THE COURT: You have to step forward, because you have already put the right foundation in place. The financial consequences, I agree, is another challenge. It has got to be another stressor in your life. TIMOTHY DOBSON: I’m maxed out. THE COURT: That is why you have got to take advantage of the community resources to talk it through in a positive way. I think that is the only term the crown was suggesting.

Any breach of that order is a new criminal offence, which if you do not do the counselling, or if there’s a breach of the peace, you are back here on a new charge, which if convicted would put you at risk of jail. Additionally, as I said, you have to turn your driver’s licence in. Your address has not changed since the date of arrest? Indicating that his address is the same. Pursuant to the Criminal Code , you are prohibited from operating a motor vehicle on any street, road, highway, or other place, for a period of 12 months, commencing on today’s date.

You should know that if you are convicted of breaching my driving prohibition order, the circumstances of which the crown has elected by way of indictment, you would be at risk of up to five years in a penitentiary. Do you understand that? It is important that you do not forget to turn that driver’s licence in. TIMOTHY DOBSON: Yes, Your Honour. THE COURT: Anything further from crown or defence? MR. AITKEN: No, Your Honour. Thank you. THE COURT: Have I covered all aspects here? MS. BRONOWICKI: No, thank you, Your Honour.

THE COURT: You need to attend wicket 15, court’s administration, on the first floor, to sign the paperwork, and then back to the fourth

floor for your initial meeting with the probation officer, whose office is indeed on this floor. Good luck, sir. TIMOTHY DOBSON: Thank you, Your Honour. MATTER ADJOURNED FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Jessica Sabiston, certify that this document is a true and accurate transcript of the recording of R. v.

Dobson in the Ontario Court of Justice, held at 150 Bond Street East, Oshawa, Ontario, taken from Recording No. 2811-402-20160105-091013-10-WAKEFIG.dcr, which has been certified in Form 1. _______________________________ _____________________________________ Date (Authorized Signature) Jessica Sabiston Act ID: 1458186636 1-855-443-2748 jsabistontranscripts@vptranscription.com