Her Majesty the Queen - v. -, 2011 SKPC 170

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 170 Date: November 7, 2011 Information: 25203633 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mathew Hamoline Appearing: C. Bliss For the Crown M. Owens For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused is charged that: on June 5, 2010 in Saskatoon that he did: 1) On or about the 5 th day of June, A.D. 2010 at or near Saskatoon while his ability to operate a motor vehicle was impaired by alcohol

or a drug, operate a motor vehicle, contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code ; and 2) On or about the 5 th day of June, A.D. 2010 at or near Saskatoon having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle contrary to s. 255(1) and s. 253(11) (

b) of the Criminal Code . [ 2 ] At the commencement of trial, the Crown withdrew count #1 of the information relating to impaired driving.

The trial then proceeded on count #2, driving while over .08. [ 3 ] The accused registered two readings of 110 milligrams percent at 11:28 and 11:50 p.m., respectively, however raised the defence of “evidence to the contrary” by reason of unabsorbed alcohol into the bloodstream thereby raising a reasonable doubt that his blood alcohol content (BAC) at the time of driving did not exceed the legal limit of 80 milligrams percent. [1] [ 4 ] The statutory requirement to succeed on this defence is governed by s. 258(1) (d.1) [2] of the Criminal Code requiring that to successfully challenge the presumption of identity contained in this

section the consumption of alcohol must be consistent with both:

a) the expected BAC at the time of driving not exceeding 80 milligrams percent; and

b) the readings as achieved on the Intoxilyzer instrument. [ 5 ] The evidentiary component for this defence requires the accused to accept the Certificate of Analyses as accurate and thereafter provide expert opinion evidence involving retrograde (readback from the Certificate) and anterograde (forward from last consumption) calculations. These calculations are based upon hypothetical scenarios involving the pattern and quantum of consumption as provided by the accused in evidence.

II DETERMINATION Factual Foundation for Opinion [ 6 ] The crux of the defence case rests upon the pattern of consumption of the last two cups of beer and the rate of absorption relating to same. The defence expert Dr. Stephen Richardson, opined that the rate of alcohol absorption into the bloodstream commences at 30 minutes after ingestion. [3] The accused testified that his last two beer were consumed within one-half hour of being stopped at 10:50 p.m.

His evidence in this regard was that he started his penultimate beer “probably - around twenty after tenish” [4] and that he thereafter consumed his final beer quickly and then departed the bar some five minutes later around 10:40 p.m. [ 7 ] According then to Dr. Richardson, the alcohol content from both these beer would not have been absorbed into the bloodstream of the accused by the time he was stopped at 10:50 p.m. - the overall time being thirty minutes from when he started his second last beer at 10:20 p.m. [ 8 ] Utilising this time frame and convention for calculation, Dr.

Richardson placed the accused’s expected BAC at the time of driving to be: a) 49 milligrams percent utilising a 10 milligrams percent elimination rate per hour; and

b) 55 milligrams percent utilising a 20 milligram percent elimination rate per hour. [5] [ 9 ] This calculation however is predicated upon the finding that the accused consumed these two beer within the last half hour prior to last driving i.e. from 10:20 to 10:50 p.m. This time frame however is contradicted by the defence’s own witness, Steve Friesen, in chief, one of the drinking companions of the accused on the night in question.

This is evidenced in the following excerpts from the trial transcript commencing at line 2 of page 166 and continuing to line 24 of page 166: Q When he had these last two drinks, can you quantify for us within how much time relative to his leaving - you said the last one was finished about five minutes before he left? A Yeah. Q Okay. Can you quantify for us in terms of an estimate of time, that the last two were begun and finished? So if you finished five minutes before he left, when was the first of the last two - do you understand me so far? A Yeah. Yeah. Q When was the first of the last two started?

A It would have been about ten o’clock. Q And how is it that you know that? A I just remember because we were together. Q Alright. Did you have some sort of way of keeping track of time that day? A I had a watch on my - and there was clocks in the bar. Q Did you look at your watch relative to about ten o’clock at all? A Yes. And further in cross-examination, p. 174, line 15 - p. 175, line 5: Q And you figured then - I think you said he would have started his last drink at about ten o’clock? A Yeah - no, it - I believe I said he started his second last drink. He had two drinks in the last half hour. Q Okay, okay.

And that he had left the bar at about - well, you said about ten thirty. A Yeah at about 10:30. Q Okay. And that - you’re certain in your recollection because you had a watch on? A Yes. Q And there were clocks in the bar as well? A Yes. [ 10 ] Mr. Friesen thereby states unequivocally that the second last beer was started “at about ten o’clock”. He reinforces this evidence by testifying that the accused had two beer in the last half hour and that he left “about 10:30”.

When compared to the evidence of the accused that the second last drink started “ . . . probably . . . around twenty after tenish”, the Court prefers and accepts the evidence of Mr. Friesen because he referenced his time frame by his watch and the clocks in the bar. Therefore the Court finds as a fact that the accused commenced his second last beer at about 10:00 p.m. rather than 10:20 p.m. [ 11 ] The result is an approximate fifty minute “window” for absorption of the alcohol in the last two beer rather than the thirty

minute time span upon which Dr. Richardson based his calculations to bring the accused’s expected BAC to between 49 and 55 milligrams percent at the time of driving. These calculations therefore cannot be relied upon since the factual foundation for same has been impugned. [ 12 ] Regarding the possible scenario of the second last beer starting at 10:00 p.m., Dr. Richardson testified that some and possibly all of the alcohol in this beer would have been absorbed by the time of driving at 10:50 p.m. [6] However, he did not provide any calculations allowing for such added absorption.

Richelle Booker however did provide anterograde calculations whereby only one of the last two beer would have been absorbed, demonstrating the expected BAC to be 104 and 122 milligrams percent, for a 10 milligrams percent eliminator and a 20 milligrams percent eliminator, respectively. [7] Rate of Absorption [ 13 ] Even if the Court had accepted the evidence of the accused that he consumed his last two beer starting at 10:20 p.m., rather than 10:00 p.m. as found, the Court is unable to accept the Defence evidence that none of this alcohol would have been absorbed at the time of last driving at 10:50 pm.

As indicated, this premise was fundamental to Dr. Richardson’s calculation placing the accused under 80 milligrams percent at the time of driving at 10:50 p.m. [ 14 ] Although both Richelle Booker and Dr. Richardson are highly qualified to give opinion evidence in this area, on this particular point, the Court found the evidence of Richelle Booker to be more credible and persuasive. While Dr.

Richardson stated that alcohol absorption takes place between thirty and ninety minutes (i.e. does not begin for thirty minutes once consumed), he cited no particular reference or study, rationale, or qualifier, that would support this claim other than simply stating according to the literature. [ 15 ] Conversely, Ms. Booker testified that she was aware of no source whatsoever that she has ever come of across which would support the position of Dr. Richardson in this regard.

Rather, she stated that all of the literature and studies and experiments (going back as far as 1940) demonstrated that absorption of the alcohol starts almost immediately upon ingestion and that peak BAC is achieved within thirty minutes thereafter. She cited studies showing absorption at two minutes, twelve minutes and seventeen minutes and in one recent study she recalled that blood samples were taken at ten, twenty and thirty minutes after consumption began which clearly showed alcohol being absorbed steadily throughout. [ 16 ] Ms.

Booker explained that the alcohol molecule is particularly small and that its absorption begins in the mouth through mucous membranes, albeit at this point in a negligible amount. However, she stated, once it reaches the stomach the alcohol is absorbed into the blood more quickly and thereafter passes into the small intestine. Here the rate of absorption is the greatest because of the mass of the small intestine.

She further testified that although stomach content can slow or delay gastric emptying into the small intestine, the entire process is nonetheless rapid and that in this case in any event the evidence of the accused’s last meal would not have any bearing on the absorption. [8] [ 17 ] Her credibility on this point was further enhanced in the Court’s view when Defence counsel put an excerpt to her from the latest addition of the “Goodman” text [9] which in the Court’s view endorsed exactly what she was saying: After oral administration, ethanol is absorbed rapidly into the bloodstream from the stomach and small intestine and distributes into total body water.

Peak blood levels occur about thirty minutes after ingestion of alcohol when the stomach is empty. Because absorption occurs more rapidly from the small intestine than from the stomach, delays in gastric emptying slow ethanol absorption. Consistency with Intoxilyzer

[ 18 ] The second requirement of establishing evidence to the contrary in s. 258(d.1) is that the consumption of alcohol must not only be consistent with being under the legal limit at the time of driving but also be consistent with the readings achieved on the Intoxilyzer, in this case 110 milligrams at 11:28 p.m. and 11:50 p.m., respectively. [ 19 ] Utilising the accused’s evidence of five beer of 473 millilitres volume drank from 9:00 to 10:30 p.m., Dr.

Richardson performed an anterograde calculation [10] and concluded that the expected BAC at 11:30 p.m. would be 148 milligrams percent for a 10 milligram percent per hour eliminator and 128 milligrams percent for a 20 milligrams percent per hour eliminator.

He explained that this was based upon full absorption “. . . if consumption stopped at 10:30 then by 11:30 I would expect all alcohol, all consumed alcohol to be in the bloodstream at that time”. [ 20 ] On this calculation the accused would be 87 milligrams at the time of driving for a 10 milligram percent eliminator and “slightly higher” for a 20 milligrams percent eliminator, he testified.

These values he conceded did not correspond with the Certificate value. [11] IV RESULT [ 21 ] For all of the foregoing reasons, the accused has failed to establish evidence to the contrary to rebut the presumption of identity contained in s. 258(1) (d.1) of the Criminal Code . Accordingly, he is found guilty on Count #2 of the Information of driving while over .08. _____________________ R.D.

Jackson, J [1] In the vernacular variously described as the “rising reading” or “last drink” defence involving evidence of alcohol consumed “bolus” (large quantity at once) or alternatively, post-driving. [2] Not to be confused with “evidence to the contrary” to challenge the presumption of identity in s. 258(1) (c)(ii)) relating to a calculation of BAC from the total amount of alcohol consumed versus the readings on the Intoxilyzer. [3] On this point, the Crown expert Richelle Booker fundamentally disagreed with Dr. Richardson.

Her staunch opinion was that the majority of alcohol absorption i.e. peak BAC is achieved within thirty minutes of ingestion. ( Infra at paras. 13 - 16) [4] Transcript p. 103, line 6 - 7 [5] Transcript p. 189, line 22 - p. 190, line 19 [6] Transcript p. 187, lines 13 - 18 [7] This calculation may well explain the fail result at 10:57 p.m. on the ASD which was calibrated to fail at 99 milligrams percent. As Dr.

Richardson candidly testified, his calculations of expected BAC of 49 to 55 percent could not be squared with this evidence (transcript p. 213, lines 4 - 13). [8] The accused testified he last ate at 4:30 p.m. which consisted only of a packet of noodles. [9] Goodman and Gilman’s Pharmacological Basis for Medical Therapeutics , a resource book which Dr. Richardson himself has referred to as “the Bible of pharmacology”. (Transcript p. 212, lines 8 - 18; and p. 213, lines 2 - 5) [10] Transcript, page 197, lines 14 - 20. [11] Transcript, page 198, lines 7 - 21.