2018 QCCA 556, 2018 QCCA 556

Unofficial English Translation Jasmin c. R. 2018 QCCA 556 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006371-171 (705-36-000690-154) (705-01-086512-144) DATE: April 11, 2018 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. JACQUES DUFRESNE, J.A. ROBERT M. MAINVILLE, J.A. GABRIEL JASMIN APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] Gabriel Jasmin has appealed a judgment rendered January 16, 2017 by the Superior Court, District of Joliette (Pierre Labrie, J.S.C.), which granted an appeal from an acquittal issued September 29, 2015 by the Court of Québec, District of Joliette (Lise Gaboury, J.C.Q.) and ordered a new trial with respect to the charge of driving with a blood alcohol level over 80 mg per 100 ml of blood (s. 253(1) (

b) Cr.C. ). The acquittals ordered by the Court of Québec in that same judgment with respect to impaired driving (s. 253(1)(

a) Cr.C. ) and failure to stop at the scene of an accident (s. 252(1) Cr.C. ) have not been appealed in the Superior Court. [ 2 ] For the reasons of Doyon J.A., with which Dufresne and Mainville JJ.A. agree, THE COURT: [ 3 ] DISMISSES the appeal, without costs; [ 4 ] CONFIRMS the order for a new trial. FRANÇOIS DOYON, J.A. JACQUES DUFRESNE, J.A. ROBERT M. MAINVILLE, J.A. Mtre Anne-Marie Jatrino Lamoureux Séguin Jatrino Avocats Mtre Hugo T. Marquis BMD Avocats For the appellant Mtre Mathieu Locas Mtre Arianne Duval Directeur des poursuites criminelles et pénales For the respondent Date of the hearing: February 22, 2018

REASONS OF DOYON, J.A. [ 5 ] This is a unique case in which the facts, at first blush, might appear to favour the appellant. Nevertheless, the law, more specifically s. 258(1)( d.1 ) Cr.C. , must be applied such that, contrary to the conclusions of the Court of Québec judge, the appellant would have had to lead expert evidence to rebut the presumption of identity in the hope of being acquitted. Given he did not do so, I am of the view that a new trial is required, as the Superior Court justice decided, although I do not agree with all of his reasons. BACKGROUND [ 6 ] The facts are simple.

Near 9:20 p.m. civilians advised the police that someone was erratically driving a vehicle which the police located a few minutes later – unoccupied and roughly one kilometer away. Inside the vehicle they discovered open cases of beer. The appellant arrived on the scene shortly thereafter and was identified by the witnesses as the driver. Observing a strong odour of alcohol, red eyes, slowed speech and movement, the police arrested the appellant at 9:53 p.m. They summoned him to provide breath samples, which he did at 11:04 p.m. and 11:26 p.m. The results were 96 mg and 85 mg of alcohol per 100 ml of blood.

He was then accused of impaired driving (s. 253(1)(

a) and s. 255(1) Cr.C. ), driving with a blood alcohol level over the legal limit (s. 253(1)(

b) and s. 255(1) Cr.C. ) and failure to stop at the scene of an accident (s. 252(1.1) Cr.C. ). [ 7 ] The appellant testified to having consumed about three beers, but only after having left the vehicle. He said that he had drunk no alcohol during the three days prior to the day of his arrest. Thus, he said he could not have committed the first two offences. [ 8 ] The Court of Québec judge accepted the accused’s version (or at least that his version raised a reasonable doubt) and acquitted him.

He could not have committed the first two offences because he had not consumed alcohol prior to or while driving his vehicle, and thus his blood alcohol level did not exceed the limit. In her view, in these circumstances, it was unnecessary for an expert to be heard in order to rebut the presumption of identity set out at s. 258(1)( d.1 ) Cr.C. [ 9 ] The Crown’s appeal in the Superior Court concerned only the acquittal from the second charge. The Superior Court justice concluded that the presumption applied and that the appellant could not rebut it without expert testimony.

He therefore allowed the appeal and ordered a new trial. THE LAW [ 10 ] This is the statutory rule regarding the presumption of identity at issue here: 258

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), 258

(1) Dans des poursuites engagées en vertu du paragraphe 255(1) à l’égard d’une infraction prévue à l’article 253 ou au paragraphe 254(5) ou dans des poursuites engagées en vertu de l’un des paragraphes 255(2) à (3.2) : […] […] (d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (

c) or (

d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both d.1) si les analyses visées aux alinéas

c) ou

d) montrent une alcoolémie supérieure à quatre- vingts milligrammes d’alcool par cent millilitres de sang, le résultat des analyses fait foi d’une telle alcoolémie au moment où l’infraction aurait été commise, en l’absence de preuve tendant à démontrer que la consommation d’alcool par l’accusé était compatible avec, à la fois : (

i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and (

i) une alcoolémie ne dépassant pas quatre- vingts milligrammes d’alcool par cent millilitres de sang au moment où l’infraction aurait été commise, (ii) the concentration of alcohol in the accused’s blood as determined under paragraph (

c) or (d), as the case may be, at the time when the sample or samples were taken; (ii) l’alcoolémie établie par les analyses visées aux alinéas

c) ou d), selon le cas, au moment du prélèvement des échantillons;

[…] […] [11] Because the police had reasonable grounds for intercepting the appellant and for ordering him to provide breath samples, as theCourt of Québec judge held, the rules set out at s. 258 Cr.C., including the presumption of identity at s. 258(1)(d.1) Cr.C., applied suchthat the breathalyzer result was presumed to reflect the appellant’s blood alcohol level at the time he was driving the vehicle. Toneutralize this presumption, he was required to lead evidence (or to ensure that such evidence was in the file which, in most cases, wouldrequire his testimony: R. v.

St-Onge Lamoureux, 2012 SCC 57 , [2012] 3 S.C.R. 187, para. 94 to 96) tending to show that hisalcohol consumption was consistent with both (1) a blood alcohol level not in excess of the legal limit (80 mg of alcohol per 100 ml ofblood) at the time he was driving the vehicle and (2) with the blood alcohol level established by the breathalyzer. [12] Satisfying this burden of proof generally requires expert evidence because the courts cannot determine, by judicial notice, whatthe expected result of a given scenario of alcohol consumption might be.

The question here, however, is what happens when the scenarioconcerns the absence of alcohol. [13] With this in mind, I now turn to the two questions raised by the appellant:

(1) Did the Superior Court justice err in law byconcluding that the presumption applied despite the absence of alcohol consumption prior to or during driving?

(2) Did he err inrequiring expert evidence? APPLYING THE PRESUMPTION [14] In my view, the appellant mistakenly asserts that the presumption does not apply by reason of the absence of alcohol in theblood. [15] Recall the context: the appellant testified and his version of the facts gave rise to a reasonable doubt. Thus, he pled that,according to the evidence, he had not consumed any alcohol before driving and, for this reason, the presumption did not apply.

However,this argument is flawed in the case at hand, even from a purely procedural perspective. [16] Indeed, according to this line of reasoning, in order to conclude that the presumption does not apply, the trial judge must firstdecide whether to accept the testimony of the accused: if the testimony is accepted, the presumption will not apply and it will beunnecessary to lead evidence to rebut it.

If the judge sets aside the accused’s version of the facts, the presumption will apply andevidence will be required. [17] In sum, the trial would have to be split in anticipation of the judge’s decision regarding the accused’s testimony before it couldbe known whether the presumption would apply, with all the consequences that flow from that finding: if the judge believes the accusedor if the accused raises a reasonable doubt regarding the presence of alcohol, the presumption does not apply and, obviously, no evidenceis required to rebut it; if the judge sets aside the testimony, the presumption applies and the defence must lead evidence to rebut it.

Thiswill be difficult to do when, as in the latter case, the judge does not believe the accused. This way of proceeding is unacceptable.Moreover, it should be recalled that, according to the text of the law itself, the evidence must tend to show both that the scenario isconsistent (not inconsistent, otherwise the burden would be with the prosecution) with a blood alcohol level that does not exceed thelegal limit and with the breathalyzer result.

Thus, it falls to the accused to ensure that such evidence exists and that it is consistent withboth of these considerations – not just the first – while awaiting the judge’s decision. [18] In this respect, the examples the appellant provides (mistaken identity of the driver, alibi, involuntary intoxication) do notsupport his argument. In such cases, the presence of alcohol in the blood is not the true issue.

Rather, the question in such cases is whowas driving or what the circumstances surrounding the consumption of alcohol were, in other words, defences that do not require morein-depth analysis of the accused’s testimony in light of the breathalyzer results, as I will explain below.

Moreover, it is unnecessary toconsider these hypotheticals to resolve the debate at hand. [19] In short, in a case like this (again, where the credibility of the accused must be assessed in light of the breathalyzer results, as Iwill discuss below), the presumption applies. [20] Nevertheless, one question remains: how may the presumption be rebutted? IS EXPERT EVIDENCE REQUIRED TO REBUT THE PRESUMPTION? [21] The requirement for expert evidence is more easily understood when the evidence tends to indicate that the accused consumedalcohol both before (or during) and after driving.

Indeed, how could the blood alcohol level at the time of the driving be known, otherthan through expert evidence, when the driver has consumed alcoholic drinks before (or during) and after driving? Only an expert canspeak to questions regarding blood alcohol level as well as expected speeds of absorption and elimination dependant on the quantity andtiming of consumption – such matters are certainly not of judicial notice. This is the meaning that should be given to R. v.

Benoit, 2013NLCA 3 cited by the Superior Court justice. [22] In light of the dangers associated with driving while impaired by alcohol, Parliament sought, through s. 258(1)(d.1) Cr.C. toimpose an additional burden on drivers whose blood alcohol level, according to the breathalyzer, exceeds the legal limit. However, thisdoes not mean that expert evidence will always be required. Here, a distinction must be drawn between subparagraphs (

i) and (ii). [23] In my view, the requirement set out at subparagraph (i) (evidence tending to show that the accused’s consumption of alcoholwas consistent with a blood alcohol level not exceeding 80 mg of alcohol per 100 ml of blood at the time of driving the vehicle) could be

satisfied here without expert evidence. Indeed, it is clearly a matter of judicial notice that the absence of alcohol consumption over thecourse of at least three days would necessarily lead to a result of less than 80 mg. Consequently, it was open to the Court of Québecjudge to conclude that the requirement had been satisfied – even without an expert – and the Superior Court justice erred in law byconcluding otherwise.

This error is not determinative, however, given the second requirement. [24] The requirement set out at sub-paragraph (ii) is not without a purpose, devised simply to complicate the task of the accused. Onthe contrary, it is entirely consistent with the objectives sought.

When a person decides to drink alcohol after having driven a motorvehicle and creates a situation in which the police have reasonably grounds to believe that the offence at s. 253 has been committed in theprevious three hours (see s. 254(3) Cr.C.), I see nothing unacceptable or even incongruous in requiring this person to lead evidencetending to demonstrate that his/her consumption scenario is compatible with the breathalyzer result.

Some may ask why this is relevant. [25] In fact, the matter is relevant in that regard because this requirement allows to verify whether the accused’s testimony has an airof reality, given the realistic possibility that the explanation and the scenario are untrue.

It may be easy to assert that a person consumeda given quantity of alcohol after having driven a motor vehicle, but it is perhaps more difficult to paint a precise scenario that is alsoconsistent with the breathalyzer results. [26] As Jon Fuller reminds us in Impaired Driving in Canada – A History, (2013) 51 M.V.R. (6th) 31, p. 48, these results aresupported by science and the accused must lead evidence tending to demonstrate that the consumption scenario is consistent with a resultthat is reliable in the eyes of science: […] the scenario an accused presents to the court must be consistent with both his innocence (i.e. being under the limit while in care orcontrol) and the scientifically reliable readings taken by the instrument shortly thereafter. [27] Moreover, this is what Justice Deschamps emphasized in St-Onge Lamoureux, cited above, at para. 40 to 45 and 89. [28] The trial judge could not know, even on the basis of judicial notice, if the appellant’s scenario was plausible, that is to saywhether it is possible to obtain a result of 96 mg and another of 85 mg after having consumed three beers over a period of slightly morethan 30 minutes, especially two hours or so before the test, or whether this consumption may have instead occurred, in whole or in part,prior to driving.

An expert, however, probably could. [29] In other words, this requirement also permits verification of the accused’s credibility and it is not open to a court to remedy theabsence of expert evidence evaluating the consistency of the consumption scenario described by the accused with the breathalyzerresults by way of judicial notice. Moreover, the case law has, in other circumstances, acknowledged the need for expert evidence withrespect to certain defences, automatism being one example: R. v. Stone, (SCC), [1999] 2 S.C.R. 290. [30] At first blush, one might believe that the effect of the law is inconsistent here.

Indeed, one might ask why it is necessary to forcean accused to present such evidence where, according to the accused’s version of the facts, which is believed (or which raises areasonable doubt), the accused did not consume any alcohol prior to driving? To ask such a question is to trivialize the objectives of thelaw which seeks to protect the public from a range of particularly dangerous offences and which, in order to do so, allows the courts togauge the accused’s credibility and the reliability of the accused’s story in light of breathalyzer results: St-Onge Lamoureux, supra.

Thisis why, in my opinion, the better view is that the presumption at s. 258(1)(d.1)(ii) Cr.C. may be rebutted only by expert evidence, as thelaw implicitly requires, even in a case like this. [31] This being so, the appeal should be dismissed, but how should the dismissal be formulated?

WHAT SHOULD BE THE ORDER OF THIS COURT? [32] The appellant is of the view that if his appeal is dismissed, we should follow the Superior Court justice and order a new trial.The respondent is of the view that this Court should declare the appellant guilty as, it argues, the Superior Court justice should havedone. [33] Finding in favour of the respondent would penalize the appellant for having instituted this appeal. Moreover, the Court ofQuébec judge, who did not have the opportunity to evaluate expert evidence, concluded that a reasonable doubt subsisted with respect tothe guilt of the appellant.

Indeed, on the basis of the evidence there is a realistic possibility of an acquittal, even if judicial notice doesnot permit that conclusion at this stage of the proceedings. I certainly would not be prepared to declare guilty an accused who may beinnocent. In these circumstances, it is my view that a new trial must be ordered. CONCLUSION [34] For the foregoing reasons, I propose to dismiss the appeal, without costs, and to confirm the order for a new trial. FRANÇOIS DOYON, J.A.