R. v. Laczko, 2017 ONCJ 949

CITATION: R. v. Laczko , 2017 ONCJ 949 DATE: October 24, 2017 Information No. 16-1433 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. TAMAS LACZKO ********** REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE J.M. COPELAND on October 24, 2017, at brampton , Ontario ********** APPEARANCES : J. Nadel Counsel for the Crown J. Passi Counsel for Tamas Laczko TUESDAY, OCTOBER 24, 2017 REASONS FOR JUDGMEN T

COPELAND J (ORALLY): Tamas Laczko is charged with one count of operation of a motor vehicle with excess blood alcohol. The investigation and charge arose out of a three vehicle collision in which Mr. Lacko’s vehicle was the last car in the line of vehicles. At the outset of the trial a variety of things were in issue, including Mr. Laczko’s identity as the driver of the vehicle he had been in, and the voluntariness of his statements to police at the roadside and in the breath room. In addition, the defence was raising sections 7, 8, 9 and 10(

b) Charter arguments. The defence abandoned the

section 7 Soules argument at outset of trial. As the trial proceeded, the defence made various admissions and abandoned various arguments. The defence conceded the voluntariness of Mr. Laczko’s statements at the roadside, in the cruiser and in the breath room. The defence conceded Mr. Laczko’s identity as the driver of the last vehicle in the collision at the time of the collision. Further, the defence did not take issue that Constable Peel is a qualified breath technician, that the Intoxilyzer 8000C is an approved instrument, and took no issue with the functioning and operation of the Intoxilyzer 8000C.

Finally, just prior to submissions, the defence abandoned all of its Charter arguments. Thus, by the time of submissions, there was only one issue in dispute – whether the Crown had proven beyond a reasonable doubt that Mr. Laczko’s blood alcohol level was over 80 milligrams of alcohol per 100 millilitres of blood at the time he operated the motor vehicle – that is, at the time of the collision. This issue arises for the following reasons. The breath samples in this case were taken more than two hours after the time of driving – that is more than two hours after the time of the collision.

This prevented the Crown from relying on the presumptions of accuracy and identity in

Section 258 of the Criminal Code . As a result, the Crown relied on the evidence of a toxicologist to do a readback from the time the breath readings were taken to give an opinion as to the range of the defendant’s blood alcohol concentration at the time of the collision. It was agreed at the outset of the trial that the report of the toxicologist could be filed as his evidence without the Crown having to call the toxicologist as a witness.

The crux of the legal issue in this case is that the toxicologist was asked to, and did, provide an opinion about the defendant’s blood alcohol concentration between the times of 7:09 p.m. and 7:38 p.m. However, based on the evidence led at trial from witnesses to the collision, the collision occurred between 7:00 p.m. and 7:06 p.m. (I will address this timeframe more in a moment). The defence takes the position that there is no evidence of the defendant’s blood alcohol concentration at the time of the collision because the toxicologist’s opinion covers the timeframe 7:09 to 7:38 p.m.

The defence argues that the court should find that the collision occurred between 7:00 and 7:06 p.m., likely closer to 7:00 p.m. This is from three to nine minutes earlier than the start time of the timeframe in the toxicologist’s opinion. The Crown takes the position that what the Crown is required to prove beyond a reasonable doubt is that the defendant’s blood alcohol concentration was over 80 milligrams of alcohol per 100 millilitres of blood at the time of the collision, rather than prove a specific blood alcohol reading.

She argues that given the evidence from the toxicologist that the elimination rate is between 10 and 20 milligrams of alcohol per 100 millilitres of blood per hour, the court can draw the factual conclusion based on the expert report that at the time of the collision the defendant’s blood alcohol concentration was over 80 milligrams of alcohol per 100 millilitres of blood. She argues that on this basis, the Crown has proven that the defendant’s blood alcohol concentration was over 80 milligrams of alcohol per 100 millilitres of blood at the time of the collision, that is, between 7:00 p.m. and 7:06 p.m.

This issue to some extent raises the legal issue of whether it is appropriate for a trial judge as a trier of fact, to engage in the calculation required for a readback from breath readings to the time of driving, whether there must be an expert opinion on this issue, and what inferences a trial judge can draw from expert opinion on the issue of reading back from breath samples to what a defendant’s blood alcohol concentration was at the time of driving. There are two lines of cases on this issue in this court. The relevant cases are outlined in Justice Schreck’s decision in Stennett , 2016 ONCJ 288 at para. 16 .

As I will explain, although I am in general agreement with much of the approach of Justice Schreck in Stennett , I find that on the facts of this case, on the record before me, as a matter of considering the expert opinion in the context of the evidence as a whole, I can draw the factual inference that at the time of the collision the defendant’s blood alcohol concentration was over 80 milligrams of alcohol per 100 millilitres of blood. I will not repeat Justice Schreck’s analysis in Stennett , I agree with most of it. Where I respectfully part ways with Justice Schreck is his

conclusion that because in some cases one cannot or should not draw the inference from the expert evidence before the court relating to a time outside the expert report because it would be unreliable, it is therefore never appropriate to draw an inference outside the timeframe in the expert report. For clarity, the key portion where I am in disagreement with Justice Schreck, and find that this case is distinguishable from Stennett is paragraph 23 . Further, on the particular facts of this case, I find that Justice Schreck’s concerns about statutory

interpretation and the role of an impartial tribunal (in particular at paragraphs 26 and 29 of Stennett ) are not applicable in this case. I find that those concerns are not applicable because I find that I am able to come to the conclusion I reach as a matter of common sense inferences from the evidence before the court in this case.

I will review the evidence in relation to timing in this case, and then explain my conclusions regarding whether the evidence in this case allows me to conclude beyond a reasonable doubt that the defendant’s blood alcohol concentration was over 80 milligrams of alcohol per 100 millilitres of blood at the time of the collision. There is little disagreement between Crown counsel and defence counsel regarding the timing of the collision as sometime between 7:00 p.m. and 7:06 p.m. Constable Antuma, the first officer to arrive at the scene, testified that she received a radio dispatch call to attend at 7:11 p.m.

When she received the initial dispatch information, she was told of two calls to 9-1-1. Constable Antuma did not give evidence as to the time of the calls to 9-1-1. She testified that she arrived at the collision scene at 7:17 p.m. In cross-examination, Constable Antuma explained that because the ICAD report showed the dispatch call from 7:09 to 7:11 p.m., this means that the dispatch operator started inputting the information at 7:09 p.m. Since the dispatch information included information about the second 9-1-1 call, I find that the second 9-1-1 call was made at 7:09 p.m. or earlier.

That is, the dispatch operator could not have input information about the second 9-1-1 call before the second 9-1-1 call had been made. Although there was some minor variance, all of the civilian witnesses put the time of the collision as between seven o’clock and 7:10 p.m. In examination in-chief, Ms. Pabla estimated the time of the collision as 7:09 p.m. She based this on having left a nearby plaza after a massage at 7:05 p.m. In cross-examination, Ms.

Pabla agreed that the recorded time of her 9-1-1 call was 7:06 p.m., and agreed that this was consistent with when she had left the plaza, and agreed that the collision was about one minute after she left the plaza. Mr. Milagerdy, a tow driver who happened to be in the gas station beside the collision scene at the time of the collision, testified that the collision happened about 7:00 p.m. He did not see the actual collision, but he heard it and then turned to look and saw the immediate aftermath. Mr. Rodondi, in examination in-chief, estimated the time of the collision as around 7:10 p.m.

He based that estimate on his girlfriend being on her way to a meeting with friends scheduled for 8:00 p.m. Mr. Rodondi estimated that he called 9-1-1 four or five minutes after the collision, and that the first officer arrived on scene 5 to 10 minutes after he called 9-1-1. In cross-examination, Mr. Rodondi agreed that the collision happened around 7:00 p.m. I find that the collision occurred between 7:00 p.m. and 7:06 p.m. I base this on the evidence that the first 9-1-1 call was made at 7:06 p.m. Clearly, the collision happened before the first 9-1-1 call was made. I find that Ms.

Pabla made the first 9-1-1- call and Mr. Rodondi made the second 9-1-1 call. Further, the fact that when Constable Antuma received the radio dispatch information it included information about the second 9-1-1 call, the one made by Mr. Rodondi, and Mr. Rodondi testified that it was four or five minutes after the collision that he called 9-1-1, also supports that the collision occurred at 7:06 or earlier. I find as a fact on all the evidence before me, the time of the collision was between 7:00 p.m. and 7:06 p.m.

For the purposes of my analysis, it is not necessary for me to find more precisely the time of the collision. My conclusions would be the same whether the specific time of the collision is 7:02 or 7:05 p.m. or any time between 7:00 p.m. and 7:06 p.m. The truncated breath readings on the Intoxilyzer 8000C for Mr. Laczko were 160 milligrams of alcohol per 100 millilitres of blood at 9:27 p.m., and 160 milligrams of alcohol per 100 millilitres of blood at 9:49 p.m.

The toxicologist’s report gives the ultimate conclusion that: Using the lowest and truncated Intoxilyzer 8000C measurement, the projected blood alcohol concentration of the subject is from 160 to 206 milligrams of alcohol per 100 millilitres of blood at the timeframe of interest, from approximately 7:09 to 7:38 p.m. on January 29, 2016. The toxicology report also explains the factual assumptions that the opinion is based on specific to Mr. Laczko (those are explained at page one of the report), and the four assumptions used in calculating the readback (which are explained at page two of the report).

I will not repeat all of those factual assumptions. But of particular significance are the assumptions that there was not significant alcohol consumption either just prior to the collision or between the time of the collision and the breath tests, as well as the assumption that the rate of elimination of alcohol is 10 to 20 milligrams of alcohol per 100 millilitres of blood per hour. Turning to the law, although I am not bound by Stennett , I find much of its reasoning persuasive.

In particular, I share Justice Schreck’s concerns that where there is significant uncertainty about the time of driving, and/or where there is a significant gap between the time of driving proven on the evidence before the court and the time used for the toxicologist’s opinion, it is not appropriate for a trial judge to perform the blood alcohol concentration readback himself or herself, because in those situations there are real concerns about the reliability of a trial judge doing so.

I also note that I agree that where there is no expert toxicology evidence at all, a trial judge should not do the readback himself or herself. However, I find that different considerations apply, depending of course on all the evidence in a particular case, where the time difference between the time of driving proven on the evidence and the time used for the toxicologist’s opinion is very short. The facts of Stennett are quite different from this case in two respects. First, there was much more uncertainty about the time of driving in Stennett .

Second, the readback that the trial judge was being asked by the Crown to perform in Stennett was over a longer period of time. These distinguishing factors are clear at paragraphs 12 to 13 of Stennett . I find that these differences lead me to a different result in this case than that reached by Justice Schreck in Stennett . The factors present in Stennett , and absent in this case, of uncertainty about the time of the collision, and the longer time for the proposed readback, are both factors which would lead to a greater risk of unreliability of the readback in Stennett .

I agree with most of Justice Schreck’s analysis in Stennett . Where I respectfully part ways with him is his conclusion that because a judge should not engage in the readback in a more complex case, it follows that a judge should not do so in a simpler case (see paragraph 23 of Stennett ). I come to this conclusion for two reasons. The first relates to the nature of expert evidence and the trier of fact’s role in evaluating expert evidence. The second relates to the reasonable doubt standard of proof. I will address first the issue of a trier of fact’s role in evaluating expert evidence.

The case law with respect to expert evidence is clear that expert opinion must not usurp the role of the trier of fact in deciding the ultimate issue. As with any other type of evidence, with expert evidence a trier of fact must evaluate the expert opinion in the context of all of the evidence, and draw his or her own factual conclusions from the evidence as a whole. A trier of fact must decide in the context of all of the evidence whether he or she accepts the expert evidence as credible and what weight to give the expert evidence.

As with any other type of evidence, a trier of fact can make reasonable inferences from the expert evidence in the context of the evidence as a whole. I find that the defence argument in this case is asking the court to treat the toxicology report as a conclusion on the ultimate issue of Mr. Laczko’s blood alcohol concentration, rather than to assess the expert opinion as a whole in the context of all of the evidence.

Put differently, I find that it is open to a trier of fact to assess the expert opinion and the evidence as a whole, and consider whether the Crown’s case as a whole proves beyond a reasonable doubt that a defendant’s blood alcohol concentration was over 80 milligrams of alcohol per 100 millilitres of blood, even if the time of the toxicologist’s report does not precisely match the evidence of when the defendant was actually driving. Whether or not a particular trier of fact will find that the Crown’s case is capable of proving this will depend on the whole record.

But I expect that the more uncertainty there is about the time of driving, and the larger the gap between the proven time of driving and the time the toxicologist used for his opinion, the less likely a trier of fact will be to find that they can reliably engage in this readback. I want to underline that I see this case as about a trier of fact’s assessment of expert opinion evidence in the context of all the evidence. If there was no toxicology evidence filed, I do not think it would be appropriate for a trier of fact to do a blood alcohol concentration readback as a matter of judicial notice.

I find that the assessment I am engaging in in this case does not involve taking judicial notice of anything. Rather, it involves assessing the evidence of the toxicology report in the context of all of the evidence in this case, and deciding what facts the evidence as a whole is capable of proving beyond a reasonable doubt. This brings me to my second reason for not agreeing with the portion of Justice Schreck’s reasons that holds that because doing a readback may be unreliable in complex cases, it should not be done in simpler cases, as a matter of principle.

My second reason is based on the Crown’s burden to prove the elements of the offence beyond a reasonable doubt.

In a case where there is evidence supporting a fairly precise time of driving (as in this case), and the time gap between the time period used by the toxicologist and the actual proven time of driving is short (as in this case), a trier of fact is more likely to find that doing the readback is sufficiently reliable that it can be capable of proving beyond a reasonable doubt that a defendant’s blood alcohol concentration was over 80 milligrams of alcohol per 100 millilitres of blood at the time of driving.

I turn back to the facts of this case: I find as a fact that there are no factors that would affect the reliability either of the toxicologist’s opinion, or considering reading back to the timeframe of 7:00 p.m. to 7:06 p.m. In particular, there is no evidence of the defendant drinking after the time of driving. The defendant stated in the breath room that he finished his last beer at 5:00 p.m. that day, and that he did not drink any alcohol after the time of the collision. There is no evidence, such as liquor bottles or observations of witnesses, to suggest that the defendant drank after the collision.

The defence conceded that Mr. Laczko’s statements in the breath room were voluntary. There is no evidence that the defendant consumed a significant amount of alcohol just prior to the collision, that is, there is no evidence of bolus drinking. This is not a case where as a trier of fact I need to engage in the calculation of the defendant’s blood alcohol concentration at the time of driving from scratch. Rather, the task I engage in as part of the assessment of evidence is a much simpler one.

The toxicologist has provided an opinion that from approximately 7:09 p.m. to 7:38 p.m., the defendant’s blood alcohol concentration was between 160 and 206 milligrams of alcohol per 100 millilitres of blood. The factual assumptions that form the basis for that opinion are set out in the toxicologist’s report. The toxicologist has given the opinion that the rate of alcohol elimination is from 10 to 20 milligrams of alcohol per 100 millilitres of blood per hour. The actual time of driving proven on the evidence before me was between 7:00 p.m. and 7:06 p.m.

Using the most conservative end of the elimination rate, that is the rate most favourable to the defendant, of the an elimination rate of 10 milligrams of alcohol per 100 millilitres of blood per hour, and also using the lowest end of the conclusion the toxicologist gave for the time period back to 7:09 p.m., I find that from 6:09 p.m. to 7:09 p.m. the defendant’s blood alcohol concentration was not lower than between 160 to 170 milligrams of alcohol per 100 millilitres of blood.

Looking at it in even simpler terms, the toxicologist’s opinion is that between approximately 7:09 and 7:38 p.m., the defendant’s blood alcohol concentration was between 160 and 206 milligrams of alcohol per 100 millilitres of blood.

With no evidence of bolus drinking or drinking after the collision, and an elimination rate of 10 to 20 milligrams of alcohol per 100 millilitres of blood per hour, I am satisfied beyond a reasonable doubt that the defendant’s blood alcohol concentration three to nine minutes before the earliest time in the toxicologist report, that is between 7:00 and 7:06 p.m., was either the same or slightly higher than the range in the toxicologist’s opinion. On the facts of this case, this is a common sense inference on the record before me.

For these reasons I find that the Crown has proven beyond a reasonable doubt that Mr. Laczko’s blood alcohol concentration was over 80 milligrams of alcohol per 100 millilitres of blood at the time he was driving when the collision occurred, between 7:00 and 7:06 p.m. As I have noted, Mr. Laczko’s identity as the driver was conceded by the defence mid-trial. Thus, both elements of the offence are made out. For these reasons I find Mr. Laczko guilty of operation of a motor vehicle with excess blood alcohol. ...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED