Her Majesty the Queen - v. -, 2015 SKPC 109

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 109 Date: September 8 , 2015 Information: 43941811 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Richard James Cole Appearing: Mr. Rob Parker For the Crown Ms. Christa Weber For the Accused JUDGMENT M. GORDON , J [ 1 ] Richard James Cole is charged on or about July 14, 2014, at or near Moose Jaw, Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code and count 2, on or about the 14 th day of July 2014, at or near Moose Jaw, Saskatchewan did, 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 . The Crown proceeded summarily and the trial occurred June 3, 2015. The Crown did not proceed with the impaired driving charge. [ 2 ] Defence withdrew her Charter application. The defence also admitted the drinking pattern and that Mr. Cole’s Charter rights were given and the voluntariness of any statements.

[ 3 ] There were two Crown witnesses, namely Cst. Heck and Cst. Westrum. [ 4 ] Cst. Heck testified that he was working the morning of July 14, 2014. At about 11:00 a.m., Mr. Cole, the accused in these proceedings, came to the police station to retrieve a firearm that had been seized one year previously. Mr. Cole waited in the lobby and Cst. Heck noted the odour of beverage alcohol coming from him. Cst. Heck retrieved the firearm and spoke to Mr. Cole in the interview room. It was at this point he could definitely smell beverage alcohol coming from Mr. Cole. Mr. Cole admitted he had been drinking the night prior.

Mr. Cole signed the necessary paperwork. Nobody else was in the lobby at the time and there was only Cst. Heck and Mr. Cole in the interview room. Cst. Westrum was also at the station at that time and asked Cst. Heck about the smell of alcohol in the lobby area. Cst. Heck observed Mr. Cole leave the police station and get into the driver’s side of his vehicle and drive away. The Cole vehicle was parked on the same block as the police station, facing east near the parking lot the police use. [ 5 ] Constables Heck and Westrum got into Unit 5 and were able to locate the Cole vehicle.

At the 300 block of Ominica Street West, the police officers pulled over the Cole vehicle. According to Cst. Heck, the vehicle was stopped at 11:33 a.m. and pulled over to the side of the road satisfactorily. In fact, the Cole vehicle was “very evenly parked”. Mr. Cole produced his driver’s licence and registration when asked for them by Cst. Westrum. Cst. Heck heard Cst. Westrum tell Mr. Cole that he called him last week with respect to a subpoena to witness for Court in relation to a trial scheduled for August 25. Mr. Cole had some comments about this. [ 6 ] Cst. Westrum told Mr.

Cole he could smell alcohol on his breath. Mr. Cole responded that he had just brushed his teeth and he had consumed alcohol the night before. Cst. Westrum asked Mr. Cole to come back to the police vehicle. Cst. Westrum asked Mr. Cole’s middle name and his cell phone number at 11:38 a.m. Mr. Cole responds in a clear manner. Cst. Westrum asked if Mr. Cole had anything sharp in his pockets and when he responded that he did not, he was asked to get in the back seat of the police vehicle. He was asked to take off his sunglasses and the officer said “I’m going to get you to provide a breath sample”. Mr.

Cole responded, yes he had provided samples before. The procedure was explained to him and at 11:41 a.m., a fail result on the approved screening device was obtained. The officer explained that he was over the legal limit. Mr. Cole was shocked and said “that’s impossible”. The police officer said that this instrument does not lie and at 11:42 a.m., called in the fail result and the particulars of Mr. Cole. [ 7 ] Mr. Cole then asked what does this mean now. At 11:43 a.m., he was arrested for impaired driving and at 11:44 a.m. read the Intoxilyzer demand and Charter rights.

He responded that he did not wish to contact a lawyer. At 11:45 a.m., he was given the police warning. Mr. Cole responded that he understood what he was being told and he agreed to comply with the Intoxilyzer demand. The officer told him “we’re going to take you back to the police station now but we need to figure out what to do with your truck because there is new legislation”. [ 8 ] At 11:48 a.m., the police officers were looking for the new forms from SGI for licence suspension and the seizure forms to have the vehicle impounded. Cst. Heck finds the forms and he heard Cst. Westrum tell Mr.

Cole that since he blew a fail in the ASD, the vehicle automatically gets impounded for 30 days. [ 9 ] At 11:54 a.m., Mr. Cole said he wanted to have a quick look in the truck and then the officer said “well are you going to be compliant” and Mr. Cole said “yes, no worries” but was still puzzled on how he could be over the legal limit. Cst. Heck went to the Cole vehicle and retrieved Mr. Cole’s wallet, keys, firearm and made sure that there was nothing of value left in the vehicle as it was going to be towed. At 11:58 a.m., the officer showed Mr. Cole what he had retrieved from the truck.

The keys were left in the vehicle. At 11:59 a.m., Cst. Westrum filled out the SGI forms and was making notes. At 12:00 noon, the tow truck arrived. At 12:04 p.m., Cst. Westrum asks about the forms and whether both have to be completed. At 12:06 p.m., the tow truck driver signs the forms and the officer says “just give me a couple of minutes to review the forms”. At 12:09 p.m., the tow truck driver is given the forms and they leave for the police station. [ 10 ] At 12:10 p.m., they arrive at the police station. Mr.

Cole was booked in and after the observation period, the first breath test was taken at 12:37 p.m. [ 11 ] On cross-examination, Cst. Heck agreed they pulled Mr. Cole over in a residential area a few blocks from the police station. Mr. Cole parked his vehicle just fine with no obstructions or safety concerns. Cst. Heck said it was his first experience with these new

forms and new protocol. He said they had to wait for the tow truck driver because his signature was required on the forms. The policestation was three blocks away and of course it was midday. They did not phone in or ask for another officer to attend the scene. Cst.Heck had said he could hear on his radio that another traffic stop was being called in at the same time. [12] Cst. Westrum noted that by his watch the stop of Mr. Cole’s vehicle occurred at 11:40 a.m. and they arrived back at the policestation at 12:16 p.m. He indicated that he and Cst.

Heck were trying to figure out how to do the paperwork properly as this was the firsttime either of them had dealt with the new legislation. He called the tow truck and had the tow truck driver sign the forms and take awaya copy. He said that it was five to 10 minutes from the time the tow truck driver signed the forms to when they left for the policestation. They arrived at the police station at 12:16 p.m. by his watch and 12:40 p.m. was the first sample. [13] On cross-examination, Cst. Westrum said the first four minutes of the stop were taken up serving the subpoena to witness onMr. Cole. Then Cst.

Westrum smelled alcohol coming from Mr. Cole. He admitted that he could have called another police officer tocome to the scene but noted that once they got to the police station, he called to see if there was another qualified technician availableand there was no one so he had to also operate the Intoxilyzer. By his notes the observation period of Mr. Cole started at 12:18 p.m. andthe first sample was taken at 12:40 p.m. The Certificate of Analyses was marked as Exhibit P-2 in the proceedings. [14] The two officers differed by a few minutes as to the times of the various stages of the investigation. Cst.

Heck testified that at11:33 a.m., he initiated a vehicle stop in the 300 block of Ominica Street West. The vehicle pulled over satisfactorily and was off thetravelled portion of the road. Cst. Westrum records the stop as being at 11:40. Exhibit P-1 is the video of the stop and Exhibit P-2, theCertificate of Analyses. There was no satisfactory explanation for the time differences. I accept Cst. Heck’s evidence with respect to thetime as he was able to give more details as to the times of subsequent events in this investigation. Therefore I find the stop was at 11:33a.m.

At 11:41 a.m., a fail was recorded on the approved screening device. At 11:43 a.m., Mr. Cole was arrested for impaired driving,provided his Charter rights, an Intoxilyzer demand was made and at 11:45, the police warning was given. At 12:07 p.m., the officersand Mr. Cole leave for the police station. ISSUES

(1) Whether each breath sample was taken as soon as practicable after the time the offence was alleged to have been committed in orderthat the Crown can rely on the presumption of identity in s. 258(1) of the Criminal Code. In other words, can the Crown rely on this“short cut” method?

(2) If I find that the Crown cannot rely on the presumption of identity in s. 258(1), does the Crown’s case fail? POSITION OF THE PARTIES [15] The Crown relies on the reasoning in R v Vanderbruggen, (ON CA), [2006] 206 CCC (3d) 489 (ON CA)[Vanderbruggen], to interpret the phrase “as soon as practicable” which states that as soon as practicable means that the test must betaken within a reasonably prompt time under the circumstances. There is no requirement that the test be taken as soon as possible.

Rather the Court stated as soon as practicable means within a reasonably prompt time considering all of the circumstances. At paragraph12, the Court states: The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. [16] The Crown argues that the evidence shows that all events proceeded in a timely manner. At 11:33, the vehicle was stoppedand the police served the subpoena on the accused. At 11:37, the first indication that the accused had been drinking. At 11:40, theapproved screening device demand was made.

At 11:41, a fail result and the police officer calls in the stop and the result and logs in animpaired driver. At 11:44, the Intoxilyzer demand, rights to counsel and police warning. This is made 11 minutes after the stop andseven minutes after the first sign of impairment. According to the Crown, defence does not take issue with the timeliness of the breathdemand. The Crown notes that the police officers kept the accused informed of the proceedings. The officers stated there was astatutory imposed duty requiring the police to take control and impound the vehicle.

The police were of the opinion they needed to havethe operator of the tow truck sign off acknowledging the tow truck company is accepting this property. At 11:53, the tow truck wascalled. The police officer retrieved items from the truck as requested by the accused, including the gun that the police had returned tohim earlier at the police station. The tow truck driver arrives at 12:00 noon and at 12:09, the police leave. Only 36 minutes have

elapsed by the Crown’s calculation. The police officer testified by all indications it was a busy day for Moose Jaw police by the sound of all the radio traffic. [ 17 ] There are many cases dealing with this issue and all of them indicate that the police must explain and satisfy the Court that their actions were necessary at the time and reasonable in the circumstances. [ 18 ] The Crown argued that the landscape has now changed since the amendments to The Traffic Safety Act in June of 2014.

The Crown says that in cases such as this, the police officers must immediately impound the vehicle and that this is a necessary part of the investigation with respect to a drinking and driving investigation. DEFENCE ARGUMENT [ 19 ] Defence counsel argues that the test for “as soon as practicable” must be considered by looking at what is reasonable in the circumstances. She says Vanderbruggen makes it clear that there is a subjective and objective element that must be considered.

She also refers to cases such as R v Wetzel , 2013 SKCA 143 [ Wetzel ], R v Dion , 2010 SKPC 76 [ Dion ], and R v Spice , 2014 SKPC 69 . Defence points to the following circumstances to show that the police officer did not act reasonably in the circumstances; namely, there were two police officers present, the truck was parked off the main travelled portion of the street and was not in any hazard. There were no safety concerns. There were no valuables left in the truck. There was no passenger to deal with. They were three blocks away from the police station at midday in a residential area of Moose Jaw.

The accused was cooperative. There were other alternatives open to the police. One officer could have stayed at roadside or driven the other officer and the accused to the police station and returned and met the tow truck. Neither police officer made any attempt to call for assistance. The police officers did not seem too concerned about the delay and were not familiar with the new forms and the amendment to The Traffic Safety Act does not say the vehicle has to be impounded at roadside or that a police officer has to be present. No other alternatives were considered by the police. THE LAW [ 20 ] The relevant

section of the Criminal Code is s. 258 , which reads as follows: 258(1)(

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (i) [Repealed before coming into force, 2008, c. 20, s. 3 ] (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused ’ s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused ’ s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; [ 21 ] This is called the presumption of identity and is indeed a “shortcut” or efficient method for the Crown to prove the accused’s blood alcohol reading at the time of the test is the same as at the time of driving.

This is of course the most common method the Crown uses to prove this charge.

[22] The relevant portions of The Traffic Safety Act read: 148(2) A peace officer shall do the things set out in subsections (3) and (12) if: (

a) the peace officer has reasonable grounds to believe, based on an analysis of a driver’s breath or blood by means of an approvedinstrument or an approved screening device, that a driver drove a motor vehicle while the venous blood of the driver exceeded 80milligrams of alcohol per 100 millilitres of blood; or (b) [situation of a failure to comply] to comply with a demand made pursuant to

section 254 of the Criminal Code.

(3) In the circumstances mentioned in subsection (2), the peace officer shall immediately: (

a) suspend the driver from driving a motor vehicle; (

b) if the driver holds a valid driver’s licence or any other permit authorizing the driver to drive a motor vehicle, require the driver toimmediately surrender his or her driver’s licence or permit; (

c) cause the motor vehicle that the driver is driving to be immobilized or impounded; and (

d) issue and serve on that driver a notice of suspension and immobilization or impoundment. ANALYSIS [23] The first issue in this trial is whether the Crown has proven beyond a reasonable doubt the tests were taken as soon aspracticable pursuant to s. 258(1)(c). In R v Straub, 2015 SKPC 84 [Straub], Kalmakoff J. (as he then was) puts it well at paragraphs 31and 32: Section 258(1)(

c) of the Criminal Code contains three temporal requirements that must be met in order for the presumption to apply. (1)The samples must be taken as soon as practicable after the time when the offence was alleged to have been committed; (2) the firstsample must be obtained not later than two hours after the offence was alleged to have been committed; and (3) there must be at leastfifteen minutes between the first sample and second sample being taken. Each of those temporal requirements is important.

The Crowndoes not establish the ‘as soon as practicable’ requirement by simply demonstrating that the first sample was obtained within two hours.Two hours defines the absolute outer parameter. Anything more than two hours is clearly not as soon as practicable, but it does notfollow that anything within two hours automatically meets the ‘as soon as practicable’ requirement. The importance of the samples beingtaken as soon as practicable was noted by Ottenbreit J.A. in R v Burwell, 2015 SKCA 37 [Burwell], at para 118: The purpose of s. 258(1)(

c) of the Criminal Code is to provide the Crown an evidentiary shortcut to proving impairment. It is a fairstatement that the “as soon as practicable” criterion was enacted to ensure that the presumption created by the

section operates fairly andthat the breath testing leads to accurate results. As such it protects against the manipulation or skewing of the results by delaying testingto allow for the absorption of alcohol into the accused’s blood. The outer limit of this criterion is two hours after the offence was allegedto have been committed as regards the first sample.

Within the context of section 258(1)(c), “as soon as practicable” is a concept informed by the criteria of what is reasonable, based on thecircumstances of the case taken as a whole, and bearing in mind that the Criminal Code permits an outside limit of two hours for the firsttest to be taken: Burwell, at para 119; R v Singh, 2014 ONCA 293 , 310 CCC (3d) 285; R v Vanderbruggen (2006), (ON CA), 206 CCC (3d) 489, 208 OAC 379 (Ont CA). It does not require that samples be taken as soon as possible, but means thatthey must be taken within a reasonably prompt time under all the circumstances.

If there is delay, it needs to be explained. The keyquestion is whether the police acted reasonably. [24] The Court noted in Wetzel at paragraph 22 that: ... a delay caused by waiting for a tow truck does not necessarily create a situation where the sample is not taken as soon as practicable ... [25] It is to be noted that case was decided prior to the present amendments to The Traffic Safety Act. It is a case where atparagraph 34 of the trial judge’s decision, the police officer had no reasonable grounds to believe the accused’s vehicle was a hazard andcalling and waiting for a tow truck was necessary.

[ 26 ] I find there was legal authority for the officer to arrange to have Mr. Cole’s truck impounded.

Section 148 of The Traffic Safety Act as amended in June 2014 speaks of: ... the peace officer shall immediately: (

c) cause the motor vehicle that the driver is driving to be immobilized or impounded; [ 27 ] As stated in Straub , at paragraph 36 : In Wetzel , the Court of Appeal concluded that the mere existence of legal authority to seize a vehicle does not determine whether the decision to seize the vehicle, and the delay caused by implementing that decision, are reasonable.

Legal authority is only one component of the equation. [ 28 ] In Dion , Judge Meekma noted at paragraph 15 as follows: In determining whether the delay was reasonable in the circumstances, it is necessary to consider: (1) whether it was necessary to call the tow truck; (2) whether the call was made with reasonable promptness; (3) whether the officers acted reasonably in waiting as long as they did before (

a) calling a tow truck a second time, and (

b) calling for a back-up officer to wait with the vehicle. [ 29 ] Judge Meekma emphasized that it was not the length of time involved, but rather the reasonableness of the delay and the reasonableness of the explanation. [ 30 ] In R v Sword , 2015 SKQB 9 , Mr. Justice Scherman reviews the leading cases on “as soon as practicable” and says at paragraph 21: The essential principles to be extracted from the foregoing are that: i. The phrase “as soon as practicable” does not mean as soon as possible; ii.

The phrase means nothing more than samples are to be taken within a reasonably prompt time under the circumstances; iii. The requirement of “as soon as practicable” is one which must be applied with reason; and iv.

As long as the first sample was taken within 2 hours of the alleged offence, the second no sooner than 15 minutes after the first, and delays that impact the “as soon as practicable” requirement are explained to the satisfaction of the judge and those delays did not prejudice the accused, then the prosecution is entitled to rely upon the presumption. [ 31 ] In the within case, the only reason a tow truck was called is the police were told to do so subsequent to the amendments to The Traffic Safety Act . The police were not familiar with the forms as such and I do not find them to be too sure of themselves.

They felt that once a tow truck was called, they certainly had to wait and get all the paperwork done so that the tow truck company became responsible for the vehicle. [ 32 ] After Mr. Cole arrived at the police station at 12:10 to 12:15 p.m., the investigation proceeded in a timely manner. The only time period in question that the defendant argues does not meet the as soon as practicable requirement is from the time of the fail on the ASD to the arrival at the police station, a time of 29 to 34 minutes. What were the officers doing during this time? The evidence is that

after the vehicle stop at 11:33, the officers served the accused with a witness subpoena for court on August 25. The accused responded by telling the officer problems he was having with this individual in the upcoming proceedings. At 11:41, the accused failed the ASD demand. [ 33 ] The Traffic Safety Act amendments talk about immobilized or impounded. As I understand the modern rules of statutory

interpretation, words are to be interpreted, if possible, so they are not superfluous or meaningless. Therefore in my view, immobilization must be read as meaning something other than impoundment, as a means of somehow securing the vehicle without towing it. Of course the

section goes on to say that the police officer is required to prepare and serve the notice. However, the evidence is that this is done at the police station when all other documents are served. [ 34 ] I take note of several of the points raised in the defence argument and in particular the time of day, noon, a perfectly parked vehicle that caused no hazard and a few blocks from the police station. I acknowledge courts should not lightly interfere with the police investigative procedures or try to “micro manage” after the fact these police investigations.

My concern here is that the officers have a responsibility to know, understand and consider any new legislation and how it fits into the requirements and procedures in an impaired driving investigation.

The officers did not direct their mind to any other alternatives here which in my view were open to them and not unreasonable. [ 35 ] I find that the police officers remained at the scene roughly 15 minutes longer than they needed to. [ 36 ] The tow truck, in this case, is called 12 minutes after the fail result on the approved screening device and eight minutes after the breathalyzer demand, rights to counsel and police warning are provided. While these times are not unduly lengthy, it is not the number of minutes, but the reasonableness of the delay and any explanation.

The evidence shows the police officers were looking for the new forms and one officer was completing the forms after some conversation with his colleague. [ 37 ] Again, the evidence was that this vehicle was properly parked at midday in a residential area a few blocks from the Moose Jaw Police Detachment. There was no evidence that either of these officers attempted to move the process along. I find that the officers failed to act diligently and to do everything that they could to not create anymore delay other than what was reasonable.

There was one phone call made for a tow truck and there was no time given as to the arrival. While I realize all this took place in the City of Moose Jaw and so a tow truck would not need to travel far, there is a wait and the officers did not know the length of the wait. The officers did not explore any options that might lessen the delay. I find that under the reasonableness consideration, the officers should have turned their mind to alternatives before simply deciding to wait for these few minutes before a tow truck arrived. [ 38 ] Mr. Cole was in jeopardy.

He had said that he did not see how he could have failed the approved screening device. In my view it was in the accused’s interests to have the matter proceed in a timely fashion as required by the Code . [ 39 ] I am not satisfied that it was necessary for both police officers to wait for the arrival of the tow truck driver. There were other options open which the officers did not consider and in my view should have. Mr. Cole and one of the officers could have been dropped off at the police station just a few blocks away and the other officer return to the scene and meet the tow truck driver.

They could have called for another officer or they could have immobilized the vehicle as provided for in the legislation. This case is distinguishable from cases where the vehicle was a hazard and stopped in an area that would block traffic or not be safe to leave the vehicle. Mr. Cole was cooperative and did not refuse or suggest that he wanted his truck towed immediately or it is not a case of him requesting a certain tow truck company.

In addition, there was no passenger for the officers to be occupied with. [ 40 ] The tow truck is called approximately 12 minutes after the fail result on the approved screening device and eight minutes after the breath demand, rights and police warning. While these times are not unduly lengthy, it is not the number of minutes that elapse but the reasonableness of the delay and any explanation provided. The evidence shows the officers were looking for the new forms and discussing just how to complete the forms. I do not accept that completing these forms is part of the investigation under the Criminal Code .

It is a separate requirement imposed by provincial legislation in furtherance of the provincial scheme of driver licencing and registration. The provisions of the Criminal Code have not changed and the same legal principles apply with respect to the requirements pursuant to s. 258 . The vehicle could simply have been immobilized which in the circumstances is as easy as locking the vehicle and the police retaining the keys. It is also noted that under the legislation, the officers are to immediately suspend the driver from driving a vehicle and issue and serve a notice of suspension on the driver. Mr.

Cole was told that he would be suspended and that he would get all

the paperwork back at the police station. There is no reason that could not have happened with the truck and the officers would still becomplying with the legislation. I am particularly concerned as Mr. Cole has indicated that he is shocked by the fail result on theapproved screening device and of course he is in jeopardy now and therefore that the chain of events from the time of the fail on theASD to the time that he blows in the Intoxilyzer is as efficient as possible. Therefore I find that the Crown has not proven beyond areasonable doubt that the breathalyzer tests were taken as soon as practicable.

As a result, the Crown is not able to rely on thepresumption of identity in s. 258(1)(c). [41] The second issue is whether the Court is entitled to take judicial notice of the “elimination rate” and “plateau” in order tocalculate the accused’s blood alcohol content at the time of driving. The certificate the Crown says is still admissible, it is just that theCourt has ruled that the Crown cannot rely on the shortcut provided in s. 258 of the Code.

Crown counsel relies on the cases of R vPaszenko and R v Lima, 2010 ONCA 615 , 103 OR (3d) 424 (ONCA) [Lima] and R v Bonifacio, 2013 OJ No 586 (ONCJ) andin particular, the comments at para 61, which are as follows: It is technically unnecessary to resolve this debate, given the analysis outlined above. I am inclined to the view, however, that courts areentitled to take judicial notice (

a) of the fact that the majority of human beings eliminate alcohol in a range of 10-20 milligrams ofalcohol per 100 millilitres of blood per hour; and (

b) of the fact that, after rising relatively quickly during the first 30 minutes or so afterthe last drink, a person’s BAC generally hits a plateau for a period of up to two hours, during which time the absorption rate and theelimination rate remain about equal and the BAC neither rises nor falls.

I think this view is consistent with the evolving jurisprudenceand with the experience of hundreds of trial judges across the country. [42] I am not prepared to take judicial notice of the elimination rates and the plateau and then proceed to calculate the possibleblood alcohol concentration of the accused at the time of driving. I note at paragraph 21 of that decision, the Court talks about takingjudicial notice in reference to the underlying foundation of the expert’s report.

At paragraph 21, the Court says: There can be no dispute that the onus is on the Crown to prove the facts underlying the expert’s report, including the assumptions uponwhich the expert relies. As Sopinka J. noted in R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36, at p.898 S.C.R., “[b]efore any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist”.See, also, R. v. Grosse (1996), (ON CA), 29 O.R. (3d) 785, [1996] O.J. No. 1840 (C.A.), at p. 790 O.R., leave toappeal to S.C.C. refused [1996] S.C.C.A. No. 465.

As noted above, however, the issue here is not whether the Crown must prove theassumptions, but how it is required to do so. [43] The Court goes on to say at paragraph 22: In this respect -- as the SCAJ in Paszczenko noted -- the Ontario jurisprudence in the courts below falls into two categories. The firstgroup of authorities requires that all four of the standard assumptions on which the toxicologist opinion is based be proved by case-specific evidence: see, for example, R. v. Castro-Mendoza (November 25, 2004), Toronto (C.J.); R. v. Hansraj, [2003] O.J. No. 3746(C.J.); R. v. Lin, [2007] O.J.

No. 2753, 2007 ONCJ 312 ; R. v. Virk, [1999] O.J. No. 5524 (C.J.); R. v. Nauss, [2003] O.J. No.5943 (C.J.); and R. v. Thompson, [2007] O.J. No. 1204 (C.J.). The second group of authorities holds that the assumptions aboutelimination rates and the plateau differ from the assumptions regarding drinking before and after the incident in terms of the proofrequired, and that the elimination rate and plateau assumptions are matters of scientific knowledge on which the expert is entitled to relywithout further proof [page 433] by the Crown: see R. v. Kim, [2007] O.J. No. 4069, 2007 ONCJ 488 ; R. v.

Lima, [2009] O.J.No. 3805, (ON SC), (S.C.J.); R. v. Calabretta, [2008] O.J. No. 364, 2008 ONCJ 27 ,affd [2008] O.J. No. 4188 (S.C.J.); R. v. Rajeswaran, [2003] O.J. No. 2210, 38 M.V.R. (4th) 140 (C.J.); and R. v. Pucknell, [2000] O.J.No. 3512, [2000] O.T.C. 677 (S.C.J.). [44] I prefer the latter line of jurisprudence referred to above. In my view it represents the proper approach and is consistent withthat taken by the Supreme Court of Canada in Lavallee. The essential difference in the within case is the Crown did not call an expert.

Without the expert’s report, I am not prepared to take judicial notice of the elimination rates and plateau principle and then engage incalculations that I have no expertise. It is a far different situation allowing a scientifically trained individual who has been qualified as anexpert in the proceedings to put forward these principles or matters of scientific knowledge and ask the Court to take judicial notice ofthem. [45] In R v Ladongi, 2013 SKPC 183, Judge Kovatch stated at paragraph 19:

With respect to the assumption of no bolus drinking, I refer to the decision of R. v. Paszczenko; R. v. Lima, 2010 ONCA 615 . Inthat case, the Ontario Court of Appeal clearly stated that there is an evidentiary burden upon the accused to lead some evidence that atleast points to the possibility the accused engaged in bolus drinking. In the absence of the accused meeting that minimal evidentiaryburden, the Court is entitled to conclude there was no bolus drinking. I do so conclude that in this case. As a result, the assumptionsmade by Ms.

Lehmann are entirely in accord with the evidence and there is no basis upon which I would reject her evidence. [46] It is clear from the above noted paragraph that Judge Kovatch relied on Ms. Lehmann’s expert report which contained thescientific assumptions. That is not the situation here. [47] I am not prepared to take judicial notice of these matters and I am not prepared to engage in any calculations to determine Mr.Cole’s blood alcohol content at the time of driving. Therefore, I find the Crown has not met its burden of proof and Mr. Cole is notguilty of count 1. M. Gordon, J