R. v. Craig, 2017 ONCJ 776

ONTARIO COURT OF JUSTICE CITATION: R. v. Craig, 2017 ONCJ 776 DATE: 2017-11-14 COURT FILE No.: Toronto Old City Hall BETWEEN: HER MAJESTY THE QUEEN — AND — DEBORAH CRAIG Before Justice J. Ritchie Heard on September 5, 6, 7 and October 25 of 2017. Reasons for Judgment released on November 14, 2017 Ms. M. Goldenberg .................................................................. Counsel for the Crown Mr. W. G. Orr, Q.C. .............................................................. Counsel for the Accused J.

RITCHIE, J.: [ 1 ] Deborah Craig is accused that, on April 7, 2016 in Toronto, she operated a motor vehicle while her ability to do so was impaired by alcohol or a drug and while her blood-alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood. [ 2 ] The defence has raised many weighty issues, including Charter of Rights issues. I thank both Counsel for a job well done. I am grateful also for the very helpful case law that they provided for my consideration. [ 3 ] The trial in this matter continued over four days.

The Crown called two civilian witnesses, three police officers and an expert witness to testify. The defence elected to call no evidence. The Charter motion and trial were by agreement conducted on a blended basis. A voir dire was also conducted with regard to two utterances of the defendant that the Crown sought to have admitted in evidence. [ 4 ] The fact situation on the road was pieced together from the evidence of four witnesses. Abdul Qadar was driving on Highway 409 on April 7, 2016. Suddenly his vehicle was struck from behind. The right front part of Ms.

Craig’s vehicle collided with the left rear part of Mr. Qadar’s vehicle. Mr. Qadar said that the vehicle that hit him did not stop. It drove away eastbound at a high speed, zigzagging between lanes. [ 5 ] A short time later, Zabihullah Hakimi, a tow truck operator, saw Ms. Craig’s vehicle driving eastbound on Highway 401 at Highway 400. He saw her pull over to the right shoulder. The front right tire of her vehicle was shredded and leaving debris on the road. The right front part of the car was severely damaged, and Mr.

Hakimi said it was undriveable. [ 6 ] Officer Lillian Yeh of the Ontario Provincial Police arrived on the scene about 10 to 15 minutes later. She noted that Ms. Craig had glassy eyes and an odour of an alcoholic beverage on her breath. The officer required Ms. Craig to take a breath test on an approved screening device. The result was a “fail” reading. [ 7 ] Ms. Craig was arrested for “over 80 milligrams operation”, taken to a police detachment and required to provide breath samples into an approved instrument. Her readings were 216 milligrams and 199 milligrams of alcohol in 100 millilitres of blood.

A second charge of impaired driving was added. [ 8 ] A toxicology expert, Dr. Marie Elliot of the Centre of Forensic Sciences, also testified for the Crown. Dr. Elliot said that Ms.

Craig’s projected blood alcohol concentration (BAC) between approximately 8:30 p.m. and 10:30 p.m. would have been between 190milligrams and 265 milligrams of alcohol in 100 millilitres of blood. The toxicologist also gave her “scientific opinion [that] anindividual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range”. The Issues at Trial Voluntariness Voir Dire [9] The defence conceded that the Crown had established the voluntariness of the two statements made by Ms. Craig in the breathroom. The statements are contained in Exhibit 2.

I agree with the defence that the whole of Exhibit 2 is evidence. The statements inquestion were admissions of driving by Ms. Craig. In addition, there is the evidence of Mr. Hakimi who saw Ms. Craig driving hervehicle at about 10:08 to 10:13 p.m. The fact that Ms. Craig was driving the damaged motor vehicle is based on very strong evidence. In essence, the Crown proved it in duplicate. Charter

Section 10 (b) [10] The defence submitted that Ms. Craig had a cell phone in her vehicle and she should have been allowed to consult with counselat the roadside. Since Officer Yeh did not make that accommodation, the defence submitted that Ms. Craig’s right to counsel undersection 10(

b) of the Charter of Rights was breached. [11] I do not agree. It was unsafe to attempt to reach counsel by cell phone at the side of a high-speed highway, as Officer Yehtestified, and it was impractical given the lack of privacy. Further, Ms. Craig was taken to the OPP detachment right away, and her rightto consult counsel was accommodated first thing. Nothing happened during the trip to the detachment, and the so-called delay wastherefore of no consequence. Further, Ms. Craig was in no way prejudiced. There was no breach of her right to counsel. Charter

Section 8 [12] The defence submitted that Officer Yeh was not entitled to rely on the test result produced by the approved screening device. According to the defence submission, the approved screening device was not properly tested and calibrated - it was not done in ameaningful way - there was “no evidence that anyone qualified to do so calibrated the device”. [13] In my opinion, the law does not require proof of those matters. I refer to the decision of Justice Durno in R. v. Mastromartino, (ON SC), [2004] O.J.

No. 1435, at paragraph 79: “An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relyingon a "fail" result to confirm his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement theofficer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly.” An earlier decision of the Ontario Court of Appeal (R. v. Coutts, (ON CA), [1999] O.J.

No. 2013, at paragraphs 19and 20) is to the same effect. [14] In the present case, it was sufficient that Officer Yeh had a subjective belief that the device was in proper working order andthat the belief was objectively reasonable. The stickers on the device told the officer that it had been properly calibrated and that anaccuracy check had been carried out a week earlier. Officer Yeh had tested the device at the beginning of her shift, and she did a “self-test” just before testing Ms. Craig. The officer testified to her belief that the device was in proper working order.

Officer Yeh wasentitled to rely upon and act upon the “fail” result. Therefore, there was no

section 8 Charter breach. Lost Evidence [15] The defence submitted that Charter sections 7 and 11(

d) were violated by the lack of in-car and booking room video-recordings– the defendant could not make full answer and defence because of that missing evidence. [16] Officer Yeh explained that Ontario Provincial Police vehicles are not equipped with in-car cameras and that the OntarioProvincial Police do not do “bookings”. [17] The decision of Justice Durno in R. v. Piko, [2000] O.J. No. 3605, at paragraph 6, is helpful: “Mr. Price argues the failure to videotape [the breath testing on an Intoxilyzer] violated Mr. Piko's rights under sections 7 and 11(

d) ofthe Charter …This is not a case where police lost or destroyed evidence. Here the evidence never existed. While the trial judge wouldhave benefited from a tape of the appellant's condition, comments and efforts at providing a sample, there is no requirement theproceedings be recorded. Absent police negligence regarding evidence which they possessed or a deliberate avoidance of recordingwhen the facilities were available, there was no Charter violation.” [18] The short answer to the defence submission is that the law does not require video-recording in the two situations that werereferred to.

I note further that video-recordings of that nature are somewhat peripheral to the drink/drive allegations and are therefore ofmore limited evidentiary value. “Full answer and defence” is not hampered, since much viva voce evidence respecting an incident isavailable from the persons directly involved. In my opinion, sections 7 and 11(

d) of the Charter of Rights and Freedoms were notbreached, in the circumstances of the present case. Sufficiency of the Evidence respecting Impairment by Alcohol [19] The defence relied strongly on the fact that Ms. Craig was not exhibiting the traditional indicia of impairment, such asunsteadiness on her feet, slurred speech, poor motor skills or mental confusion and difficulty understanding. [20] The decision of the Ontario Court of Appeal in R. v. Bush, 2010 ONCA 554 , [2010] O.J. No. 3453, gives some useful

direction.

The Court stated at paragraph 56: “An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaireddriver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent asthe essential test …The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding ofreasonable and probable grounds based on the observed indicia and available information.” The Court was referring to a police officer’s reasonable and probable grounds for an arrest, but the principles apply equally to thequestion of whether the Crown has proven that an accused person’s ability to operate a motor vehicle was impaired by alcohol. [21] In the present case, apart from the odour of an alcoholic beverage on Ms.

Craig’s breath, there were factors indicatingimpairment by alcohol. Ms. Craig had glassy eyes. Also, there was evidence of very bad driving. Ms. Craig had crashed her motorvehicle into the back of Mr. Qadar’s vehicle while they were driving on a high-speed highway. Then Ms. Craig took off at a high rate ofspeed, zigzagging between lanes. The driving was atrocious, and I infer from the circumstances that alcohol was a major factor. Also,by leaving the scene of an accident, Ms. Craig showed that her judgment was affected by alcohol. [22] The decision of Justice Durno in R. v.

Grant, 2014 ONSC 1479, at paragraphs 67 and 68, is pertinent. Justice Durno stated asfollows: “Where an accident is unexplained, for example, where a car drives into a parked car, when coupled with evidence of alcoholconsumption it may be sufficient … to establish the driver’s guilt for driving while his or her ability to do so was impaired by theconsumption of alcohol … [In the present case], what remains is the reasonable inference that the accident was caused by theimpairment of the accused’s ability to operate a motor vehicle.” I come to similar conclusions. Ms.

Craig crashed into the back of a vehicle travelling on the open highway and then fled, making it a “hitand run” situation. The reasonable inference is irresistible. [23] Ms. Craig was driving with a cast on one arm, but it is speculative and in fact it makes no sense to suggest that the cast causedher to rear-end a vehicle that was travelling down the open road and to flee the scene. I conclude that Ms. Craig’s driving skills andjudgment were impaired by alcohol. [24] The defence submission questioned the lack of direct evidence respecting whether it was Ms. Craig’s vehicle that collided withMr. Qadar’s vehicle.

In light of the proximity of time and place between the scene of the collision and the place where Mr. Hakimi sawMs. Craig pull over, together with Ms. Craig’s direction of travel and the “match” between the damage to Mr. Qadar’s and Ms. Craig’svehicles, there is no air of reality to the suggestion that Mr. Qadar’s vehicle may have been struck by some other unknown driver. In myopinion, there is strong circumstantial evidence on this issue. [25] Further on the impairment issue, when Detective Anthony Arnone (the qualified breath technician) was being cross-examinedabout the fact that Ms.

Craig was not showing signs of impairment in the breath room video, he said “true, but I was closer, and I saw herin person …she was intoxicated”. The Ontario Court of Appeal has made clear that the opinion of a lay person respecting a drinkingperson’s state of inebriation can be given weight. A person’s opinion, based on their observations, that another person is intoxicated canbe probative evidence of impairment by alcohol. [26] In my view, the factors I have listed above (considered in combination) demonstrate at least slight impairment by alcohol. Asthe Ontario Court of Appeal ruled in R. v.

Stellato, (ON CA), [1993] O.J. No. 18, slight impairment is impairment. [27] In fact, the law respecting degrees of impairment has been stated by the Ontario Court of Appeal on a number of occasions. Irefer to the Court’s decision in the case of R. v. Moreno-Baches, 2007 ONCA 258 , [2007] O.J. No. 1314, paragraph 2, wherethe Court held as follows: “Suffice it to say that this court’s decision in R. v. Stellato … remains the law in Ontario.

That is to say, if there is sufficient evidencebefore the court to prove that an accused person’s ability to drive is even slightly impaired by alcohol, the judge must find the accusedguilty.” [28] In the present case, there was also the expert opinion of the toxicologist, Dr. Elliot, that Ms. Craig’s ability to operate a motorvehicle was impaired by alcohol in light of her blood alcohol concentration (BAC). That opinion regarding impairment by alcohol ispowerful evidence. In my view, the Crown has proven impairment a second time through the report and testimony of Dr. Elliot. [29] The defence submitted that Dr.

Elliot was not an impartial witness, primarily because she stated that “the lack of signs ofintoxication is not meaningful, because of possible tolerance to alcohol” and because she was unwilling, as a scientist, to say that allpeople would be intoxicated at a particular BAC. In my view, Dr. Elliot was simply giving her expert opinion, and I see no basis forquestioning her impartiality. I accept Dr. Elliot’s opinion that “with heavy drinkers, the body compensates for the effects of alcohol, andtolerance to high BACs develops – for example, they may walk and talk without showing signs of impairment”.

On the second issue, Iunderstand and accept her professional unwillingness to speak in absolutes about matters that have not been scientifically tested andclinically proven to the satisfaction of the scientific community. Dr. Elliot provided evidence regarding Ms. Craig’s circumstances,which is all that can reasonably be required of her. I accept Dr. Elliot’s testimony without any reservations. Over 80 Milligrams Operation [30] An issue arose as to whether the “two-hour presumption” applies in this case. In my view, the Crown was entitled to rely on it. Officer Yeh arrived on the scene at 10:23 p.m., and Mr.

Hakimi had seen Ms. Craig driving her vehicle 10 or 15 minutes earlier. Thefirst breath test on an approved instrument was conducted at 11:49 p.m. Even if Mr. Hakimi was mistaken and he had actually waited

one-half hour before Officer Yeh arrived, the presumption would still apply. However, Mr. Hakimi’s testimony on the issue was clearand straightforward, and he was not shaken on cross-examination. I accept that Mr. Hakimi’s testimony respecting the passage of timewas accurate. [31] The Crown, out of an abundance of caution, provided the evidence of Dr. Elliot, a toxicology expert, to “read back” theIntoxilyzer test results to the time of Ms. Craig’s driving. The defence focused on two assumptions in Dr. Elliot’s report, namely thatthere had been no “bolus drinking” and that Ms.

Craig had not been drinking after the incident. In each instance, there was no evidencerespecting any such drinking. [32] The law is clearly stated in by the Ontario Court of Appeal in R. v.

Paszczenko, 2010 ONCA 615, at paragraphs 27, 29 and 32: “[27] Bolus drinking is generally meant to describe the consumption of large quantities of alcohol immediately or shortly before driving… [29] Triers of fact may resort to a common sense inference … that people do not normally ingest large amounts of alcohol just priorto, or while, driving … [32] [There is] a practical evidentiary burden on the accused … to point to something in the evidence … that atleast puts the possibility that the accused had engaged in bolus drinking in play.” [33] The defence submitted that four factors that were reflected in the evidence “put the possibility into play”. [34] The factors were: 1) Ms.

Craig had a strong odour of an alcoholic beverage on her breath, 2) The police officers did not observethe traditional signs of impairment, such as slurred speech and unsteadiness on her feet, 3) Ms. Craig’s vehicle was not searched foralcohol, and 4) Ms. Craig was not asked when she had had her last drink. In my view, none of those factors raise any suggestion thatbolus drinking may have occurred. For example, a strong odour of an alcoholic beverage on Ms. Craig’s breath is equally indicative ofbolus drinking and of no bolus drinking.

I fall back on the reasonable inference that the consumption of a large quantity of alcoholicbeverages just prior to driving defies common sense. As the Ontario Court of Appeal noted in R. v. Grosse, (ON CA),[1996] O.J. No. 1840, at page 6, this is “merely applying common sense as to how ordinary people behave”. [35] On the second issue (alcohol consumption after the driving), neither Mr. Hakimi nor Officer Yeh saw any alcoholic beveragesat the scene nor did they see Ms.

Craig consume any alcoholic beverages. [36] In my opinion, the Crown adduced sufficient evidence to establish that the assumptions were valid in the circumstances and thatDr. Elliot’s opinion had a firm basis. [37] Therefore, in my opinion, the evidence established that the first test on the Intoxilyzer was conducted less than two hours afterMs. Craig’s driving and that the lower of her two readings was 199 milligrams of alcohol in 100 millilitres of blood. The evidence of Dr.Elliot also established that Ms. Craig’s BAC was at least 190 milligrams of alcohol in 100 millilitres of blood at the time of her driving.

As a result, I conclude from all of the evidence that Ms. Craig’s BAC was 190 milligrams of alcohol in 100 millilitres of blood at thetime of her driving. Subsection 24(2) of the Charter of Rights [38] In light of my dismissal of the Charter motion, it is not necessary to address the submissions respecting subsection 24(2) of theCharter of Rights. However, if I were required to do so, I would note that, in my opinion, Officer Yeh acted in good faith and did thebest job she could. Also, a breath test is a minimally intrusive procedure.

I would not take the view that the defendant’s Charter-protected interests were significantly infringed by the police or that any evidence should be excluded. Other Issues [39] The defence raised some lesser issues in passing, such as whether Officer Yeh should have inquired into possible mouth alcoholand whether Ms. Craig was over-held at the police detachment. I considered all such issues, but they were explained and satisfactorilyanswered by the evidence, in my view. Conclusions [40] The onus in a criminal prosecution never shifts to the defendant under any circumstance.

At all times, the burden rests solely onthe Crown to prove all elements of the offences beyond a reasonable doubt. If a reasonable doubt exists at any time, the defendant mustbe acquitted. [41] I have considered carefully the totality of the evidence, the submissions of Counsel and the case law that was provided to me. Iam satisfied that the Crown has discharged the burden upon it. There will be findings of guilty on both counts. [42] Pursuant to the Kienapple decision, I am staying the impaired driving count. Released: 2017-11-14 Signed: Justice J. Ritchie