R. v. Stamatakos, 2011 ONCJ 422

COURT FILE No.: Toronto, Metro North Court DATE: 2011·01·06 Citation: R. v.

Stamatakos , 2011 ONCJ 422 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — VASILIOS STAMATAKOS Before Justice Carol Brewer Heard on April 21 and 22, October 12 and December 3, 2010 Reasons for Judgment released on January 6, 2011 Brett Cohen ............................................................................................................... for the Crown Stephen Price ...................................................................... for the defendant, Vasilios Stamatakos BREWER J.: Introduction [ 1 ] Vasilios Stamatakos is charged with impaired driving and operating a motor vehicle with a blood alcohol level above the legal limit on June 15, 2008. [ 2 ] These charges arose after two people in another automobile became concerned about the erratic nature of the defendant’s driving and called 911.

Mr. Stamatakos’ car was stopped by police. At that time Constable Blair noticed that the defendant showed signs of alcohol consumption: there was an obvious odour of alcohol on his breath, his eyes were bloodshot and glassy, his left arm got caught in the shoulder harness of the seat belt as he exited the vehicle, he appeared unsteady on his feet, and he had difficulty in getting his driver’s licence out of his wallet. Mr. Stamatakos was arrested and taken to the police station.

After speaking with a lawyer, the defendant gave breath samples of 132 and 130 milligrams of alcohol in 100 millilitres of blood. [ 3 ] Since the breath samples were not taken within two hours of the time the offence was alleged to have occurred, the Crown was not entitled to rely on the presumption of identity in section 258(1) (

c) of the Criminal Code . Therefore, pursuant to

section 657.3, the affidavit and report of toxicologist Amy Peaire were introduced to relate the defendant’s blood alcohol results at the time of testing to his projected blood alcohol concentration at the time of driving. The defendant’s projected blood alcohol level of between 135 and 185 milligrams of alcohol in 100 millilitres of blood was based on four assumptions: 1. No large quantities of alcoholic beverages consumed shortly prior to the incident. 2. No alcoholic beverages consumed after the incident and before the Intoxilyzer 5000C test. 3.

A rate of elimination of alcohol from the blood, which may vary between 10 and 20 milligrams of alcohol in 100 millilitres of blood per hour. 4. A plateau of up to two hours applied to the lower BAC estimation. [ 4 ] In this case, only the first assumption (commonly referred to as “no bolus drinking”) is in issue. Mr. Price has argued that the expert’s report cannot be relied upon as the Crown has not proven this initial assumption. The weight, if any, to be attributed to the toxicology report is significant to both of the charges laid against Mr. Stamatakos.

It is Ms Peaire’s opinion that the “ability of an individual to operate a motor vehicle would be impaired by alcohol at a blood alcohol concentration within the projected range, regardless of tolerance or the absence of visible signs of intoxication.” Analysis

[5] It is well established that, before any weight can be given to an expert’s opinion, the facts upon which the opinion isbased must be found to exist: R. v. Lavallee (1990), (SCC), 55 C.C.C.(3d) 97 (S.C.C.) at 128. Therefore, the onus is onthe Crown to prove the factual assumptions underlying the expert’s report: R. v. Grosse (1996), (ON CA), 107 C.C.C.(3d) 97 (Ont.C.A.). [6] Recently, in R. v. Paszczenko; R. v. Lima, [2010] O.J. № 3974, the Court of Appeal considered the way in which theCrown must prove the “no bolus drinking” assumption in a toxicologist’s report.

Justice Blair stated: 29 … triers of fact may resort to a common sense inference in such circumstances, namely, that people do not normally ingest largeamounts of alcohol just prior to, or while, driving: see Grosse, Hall, and R. v. Bulman, 2007 ONCA 169. As noted above, bolus drinkinghas been said to be a "relatively rare" phenomenon: Phillips, at pp. 158-162.

"No bolus drinking" is therefore largely a matter of commonknowledge and common sense about how people behave. . . . 32 I would frame the rationale for this approach as the imposition of a practical evidentiary burden on the accused, not to persuade orconvince the trier of fact that there was bolus drinking involved, but to point to something in the evidence (either in the Crown's case, orin evidence led by the defence) that at least puts the possibility that the accused had engaged in bolus drinking in play.

The imposition ofa practical evidentiary burden to come forward with evidence is simply another way of explaining the invitation to draw a common senseinference which puts the accused in essentially the same spot if he or she cannot point to some evidence to overcome either hurdle. [7] Justice Blair evaluated the evidence bearing on the issue of bolus drinking in R. v. Lima in the following manner: 38 As noted above, the Court in Grosse resolved the issue before it by resorting to the common sense inference that normal people donot ingest large amounts of alcohol shortly before getting into their car and driving.

This Court has adopted that same technique in Halland Bulman. That common sense inference was available to the trial judge and the SCAJ in Mr. Lima's case, and particularly so in viewof the following factors:

a) Mr. Lima was stopped while driving his vehicle in an unusual fashion;

b) He exhibited signs of driving while intoxicated at the time (smell of alcohol on his breath; red, bloodshot and glassy eyes; flushedface);

c) The trial judge found by inference from the arresting officer's evidence that there was no alcohol in Mr. Lima's car, and that he had noaccess to alcohol from the time of his arrest to the time of the breathalyzer tests;

d) There was no evidence that Mr. Lima had just come from an establishment serving alcoholic beverages; and

e) The trial judge found that there was no change in the indicia of alcohol consumption during the period between his arrest and theadministration of the breathalyzer tests, thus rejecting the defence argument that increased signs of intoxication were evidence of bolusdrinking. 39 The fact that Mr. Lima was exhibiting signs of intoxication while driving and immediately after exiting the vehicle, while notconclusive, provides some circumstantial evidence of the absence of bolus drinking, in my view.

The effect of bolus drinking is to createa situation where the accused driver's BAC may have been below 80 milligrams of alcohol in 100 millilitres of blood at the time of theincident, yet still register "over 80" in a read-back calculation done later because it was still rising at the time of the incident. If the BACwere less than 80 at the time of the incident, one would not expect to see such indicia of intoxication. This is circumstantial evidencetending to support the view that there was no bolus drinking in the circumstances. [8] In this case, Mr.

Price points out that the toxicologist’s report does not provide an explanation for what is meant by“large quantities of alcoholic beverages”, nor does it specify how long a time is meant by “shortly prior to the incident”: see R. v. Costa,[2010] O.J. № 1881 (C.J.). I accept that greater precision in articulating the parameters of the expert’s assumptions would have beendesirable. However, the impact that such language will have on the common sense inference that people generally consume alcohol at anormal pace will vary from case to case: see R. v. Evans, [2010] O.J. № 47 (C.A.). I note that in R. v.

Lima, supra, at ¶13, the firstassumption made by the toxicologist was phrased in language that closely parallels the wording used by Ms Peaire. [9] I find that the Crown has met the burden of proving that there was no bolus drinking in this case, as there is an absenceof evidence that would undermine the common sense inference of drinking at a normal pace. I have reached this conclusion for thefollowing reasons: • When George Stamatakos arrived at the restaurant he co-owned with his father during the evening of June 15th, the defendantwas already present at the bar.

George, who spent the night working in the kitchen, did not see his father drinking any alcohol. • The testimony of George Stamatakos, that his father does not consume much alcohol, tends to undermine the possibility that thedefendant engaged in bolus drinking. • There is no admissible evidence as to the amount of alcohol, if any, the defendant consumed at the restaurant, his pattern ofdrinking, or when he had his last drink.[1] • There is no admissible evidence as to when the defendant left the restaurant or where he went after his departure. • In my view the defendant was driving in an unusual fashion before he was stopped by the police.

I recognize that, through skilfulcross-examination, Mr. Price revealed discrepancies between the evidence of Mr. Donoghue, the driver of the vehicle following thedefendant’s car, and Mr. Donoghue’s passenger, Ms Huha. There were also inconsistencies between the testimony of these two

witnesses and their statements to the police, as well as variations between their evidence in chief and in cross-examination. The evidence of these two persons raises serious concerns with respect to their reliability and must be viewed with caution. However, certain aspects of their testimony are confirmed by other evidence. Their account of the defendant driving very slowly, at about half the posted speed limit, is confirmed by the observations made by Constable Blair that Mr. Stamatakos’ vehicle was travelling at about 20 kilometres per hour before he took action to stop it.

I give no weight to George Stamatakos’ evidence that the defendant is an overly cautious driver, who always travels at a rate below the speed limit, because it was based on observations made over 30 years earlier and on one two minute period about 5 years in the past. • The recorded 911 call provides a contemporaneous account of the observations Mr. Donoghue made of the defendant’s driving, which involved swerving into the middle of the road and almost hitting parked cars a few times. In particular, the call contains a spontaneous exclamation made by Ms Huha and Mr.

Donoghue, when the defendant’s vehicle narrowly avoided a collision. • Mr. Stamatakos exhibited signs of driving while intoxicated when he was stopped by the police.

Although a number of the indicia of impairment note by the police officers could be attributable to the defendant’s age and health issues, it was common ground that the defendant had an noticeable odour of alcohol on his breath and both Constables Blair and Poynter noted that the defendant’s eyes were bloodshot and glassy. • After stopping the defendant’s car, Constable Blair looked into the vehicle and determined that there were no open liquor containers visible nor were there any signs of spilt liquor.

Although a full search of the car was not conducted, the absence of any visible indication of alcohol consumption in the vicinity of the driver tends to support the position that there was no bolus drinking. • It is not disputed that Mr. Donoghue and Ms Huha followed the defendant’s car from the intersection of Dupont Street and Dufferin Street, along Dufferin Street to Lawrence Avenue West. Both witnesses estimated that the trip took about 10 to 15 minutes.

The four minute period for the defendant’s car to travel along Dufferin Street from Eglinton Avenue to Lawrence Avenue [2] provides some support for the witnesses’ time estimate. While this time frame of roughly 10 minutes of driving may not fully account for the period “shortly prior to the incident” referred to in Ms Peaire’s report, it does narrow the period in which any bolus drinking could possibly have occurred. • As pointed out in R. v.

Lima, supra at ¶39, bolus drinking involves the consumption of a large amount of alcohol immediately before driving, giving rise to a situation where the driver’s blood alcohol concentration at the time she was stopped was below the legal limit, but could register “over 80” at the time of testing as the level of alcohol in the blood was still rising. In this case, the fact that Mr.

Stamatakos was displaying signs of intoxication while driving and immediately after being stopped and the absence of any increased symptoms of intoxication as the night progressed are addition pieces of circumstantial evidence tending to show the absence of bolus drinking. [ 10 ] I am satisfied that the Crown has proven beyond a reasonable doubt that the defendant was operating a motor vehicle with a blood alcohol level above the legal limit.

In addition, based upon the unchallenged evidence of Ms Peaire that the ability of a person with a blood alcohol concentration in the projected range to operate a motor vehicle would be impaired by alcohol, I am also satisfied that the charge of impaired driving has been proven beyond a reasonable doubt. A conviction will be registered on the “over 80” charge and a conditional stay will be entered on the impaired driving charge. Released: January 6, 2011 Signed: “Justice Carol Brewer”