Her Majesty the Queen - v. -, 2017 SKPC 47

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 047 Date: August 17, 2017 Information: 38888600 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jocelyn Carmel Heinbigner Appearing: Cory Bliss For the Crown Bradley Mitchell For the Accused JUDGMENT M.E.Z. PENNER , J [ 1 ] Jocelyn Carmel Heinbigner is charged with impaired driving and driving while her blood alcohol level exceeded .08. Ms.

Heinbigner was charged several months after she was involved in a single motor vehicle accident on May 17, 2016 and after the Crown had obtained Ms. Heinbigner’s health records, including the alcohol content in her blood samples from the night in question under a Production Order. The issue in this case is whether the information from the health records can be relied upon as the basis for the expert opinion on the accused’s level of impairment and blood alcohol content.

[ 2 ] The Crown called six witnesses: two civilians who had witnessed the single vehicle accident, two staff members from the Royal University Hospital where Ms. Heinbigner was taken after the accident, and two police officers who had attended at the scene of the accident. [ 3 ] Meleita Ehn, an Admin Cashier at Safeway, testified that shortly after 10:30 p.m. on May 17, she was driving home from the Safeway located at 33 rd Street between Avenue C and D. Ms. Ehn stated that she saw a vehicle travelling south on Avenue D toward 33 rd Street at a high rate of speed and somewhat erratically.

The vehicle entered the parking lot by crossing over the grass and sidewalk between the street and the parking lot, rather than through one of two entry or exit points on that side of the parking lot. Ms. Ehn observed the vehicle travelling at a high rate of speed across the parking lot where it collided with a shopping cart corral. The vehicle then passed through the parking lot, over the grass and sidewalk, across Avenue C and into the side of the Scotiabank building on the corner of Avenue C and 33 rd Street. Ms.

Ehn did not observe anything that would indicate that the driver of the vehicle attempted to avoid the cart corral, use the exits or entryways, or come to a stop before leaving the parking lot and colliding with the building on the opposite side of the street. [ 4 ] Ms. Ehn drove through the parking lot and brought her vehicle to a stop in the southeast corner. She exited her vehicle and proceeded to cross the street to determine the well-being of the occupants in the vehicle that had crashed into the building. In the vehicle she observed only one occupant, a female driver slumped over in the driver’s seat.

Her bottom was in the seat while her upper body and head were bent over onto the passenger seat. The air bag had deployed and there was a strong-smelling mist in the air. [ 5 ] Video cameras positioned on the exterior of the Safeway cover a portion of the parking lot. Three videos for the time in question were obtained from the Safeway and shown in Court, and Ms. Ehn identified the vehicles in the videos. The videos are taken from different angles and in combination they show Ms. Heinbigner’s vehicle entering the parking lot followed by Ms. Ehn’s vehicle, Ms.

Heinbigner’s vehicle hitting the shopping cart corral without any signs of slowing down or attempting to avoid the obstacle, and then dragging the corral. [ 6 ] Ms. Ehn had one passenger in her vehicle, her son Austin, who also works at Safeway. Mr. Ehn testified that they were driving home from work when the accused’s vehicle was spotted. He observed and heard the vehicle accelerate as it passed through the parking lot. He did not see the driver attempt to avoid the shopping cart corral, nor did he see any braking of the vehicle before it collided with the building.

He estimated that the vehicle was travelling at approximately 50 kph when it hit the building. [ 7 ] Constable Lisa Kateryniuk testified that she was on patrol with Constable Bradley Tuck when they were dispatched to a motor vehicle accident with injuries at 22:37 hours. The caller had indicated that there was a crash in the Safeway parking lot. Upon arriving at the scene she did not observe a crash site in the Safeway parking lot but did see that a vehicle had crashed into the side of the building on Avenue C. Constable Kateryniuk and Constable Tuck approached the vehicle.

Constable Kateryniuk approached the driver’s side and found a female in the driver’s seat, who was not moving. The female driver was the only occupant; she had cut her forehead, was bleeding quite a bit, and she did not appear to be conscious. An ambulance was called as the driver appeared to be suffering from a head injury. [ 8 ] Constable Tuck attended to the driver while Constable Kateryniuk spoke with people who had gathered around the scene to determine who could give witness statements.

She also examined the area from the cart corral to the point where the vehicle came to rest at the building and did not find any skid or brake marks. The identity of the driver of the vehicle was not immediately known to the police. Constable Kateryniuk queried the licence plate number and found the vehicle was registered to Jocelyn Heinbigner.

A further query of the driver’s licence for Jocelyn Heinbigner showed a picture that matched the driver and it was determined that the driver was Jocelyn Heinbigner. [ 9 ] Constable Tuck testified that when he and Constable Kateryniuk arrived at the scene, he observed that a single vehicle, a Toyota Echo, had collided with the brick wall of the building at the corner of Avenue C and 33 rd Street. Upon approaching the vehicle he observed that the lone female in the front seat had her legs under the steering wheel and her head resting against the passenger side door. She was not wearing a seatbelt.

The driver was unconscious and had a large gash through her hair line. As he spoke to her, she seemed to be waking and started making some moaning noises. Cst.Tuck held her head in place as he was concerned about an injury to her neck area. When firefighters arrived on the scene, they removed her from the vehicle and put her into an ambulance. It was not Constable Tuck’s decision to put her in the ambulance and transport her to the hospital.

However, he did accompany her in the ambulance as is police protocol when there is a collision with serious injuries. [ 10 ] Constable Tuck testified that he found the accident to be somewhat abnormal given a single vehicle had crashed into a brick

wall. He thought that the crash could have been the result of the driver being impaired by drugs or alcohol or suffering from a medical condition. He did not smell alcohol in the vehicle but he could smell a burnt scent consistent with the deployment of an airbag. Cst. Tuck testified that when he was in the ambulance with the accused, he could smell beverage alcohol coming from her mouth.

He noted the accused’s behaviour was somewhat strange in that she was belligerent and uncooperative with the paramedics who were trying to assist her, and she was saying things that did not fit with the situation. [ 11 ] Upon arrival at the Royal University Hospital (RUH) the accused was placed into a trauma room and the medical staff began dealing with her. Constable Tuck stayed with the accused as the smell of beverage alcohol that he had detected in the ambulance gave him cause to commence an investigation for impaired driving. Cst.

Tuck observed the accused to be in and out of consciousness as staff attended to her injuries. He testified that, while in the trauma room with the accused, he could smell alcohol and could see that her eyes were glassy. He thought her behaviour was odd as she would be talkative and cooperative with staff and then without apparent reason start screaming at them. [ 12 ] At no time during the evening did Constable Tuck arrest the accused or detain her. At 23:40 hours he began reading a blood demand to the accused in order to obtain samples to continue his impaired driving investigation.

He found her to be confused and he believed the head trauma may have been a contributing factor. It was his belief that she could not understand the blood demand so he did not proceed. When it became apparent that he could not make the blood demand on Ms. Heinbigner, he left the hospital. [ 13 ] Constable Tuck continued his impaired driving investigation and on May 31 st he reviewed video footage from Safeway, police reports and two witness statements. He believed there were grounds to make application for a Production Order for the accused’s hospital records.

He obtained the Production Order but was advised subsequently that a

section number had been modified and a further application would be required. He made that application and obtained the Production Order for the accused’s hospital records from RUH. In response to that Production Order he received the medical records of Ms. Heinbigner. The records are set out in the Affidavit of Kathy Bratton, the Manager of Health Records and Clinical Information, Health Record Services, for the Saskatoon Regional Health Authority.

Those records were entered into evidence without any objection from defence counsel. [ 14 ] Diane Haugrud, the Laboratory Manager at RUH, is responsible for overseeing quality assurance in the RUH lab. She ensures that staff are licenced, qualified and trained as required and that all laboratory equipment is operating properly. She testified as to the processes and equipment used to conduct lab tests and the daily checks built into the system for quality assurance.

She stated that there are two identifiers on all specimens that are to be tested, including the Provincial Health Number and the first and last names of the individual to ensure the specimen belongs to the individual to whom it is to be attributed. She also noted that specimens are also tracked by bar code labels and a specimen must be fully identified or it will not be accepted into the analyser for testing. The system is fully automated and once testing commences the analyser identifies specimens or samples that lack integrity.

The goal in the RUH lab is to have a one-hour turnaround from the time the sample is collected until the time the report is available for the doctor. [ 15 ] Although Ms. Haugrud was not involved with Ms. Heinbigner’s particular sample, she could testify as to the standard procedures to be followed when obtaining and testing a specimen. She acknowledged that sometimes those standard procedures are not followed. Ms. Haugrud was not questioned on whether there were any issues regarding the reliability of the testing of the machine generally or on the day or at the time Ms. Heinbigner’s samples were tested. Ms.

Haugrud testified that the plasma portion of the blood sample is tested for alcohol content. She also testified that where date and time is indicated in the medical records, it refers to the time the specimen was collected. [ 16 ] Swedaben Shah is a phlebotomist at RUH and according to the records was the individual who drew the blood sample from Ms. Heinbigner on May 17, 2016. Ms. Shah testified that she does not have a specific recollection of drawing blood from any particular patient as it is difficult to remember any one patient as she sees 30 to 35 patients each day.

She testified that although she may not remember the patient she does remember and follow the same standard practice and procedure each time she takes a specimen. In each case she labels the specimens by what is requested by the doctor. Before drawing blood she confirms the patient hospitalization number for the individual and compares it with the identification band on the patient. She would normally ask the patient their name, however if the patient is unconscious she would ask the nurse to identify the patient. She confirmed that according to Ms.

Heinbigner’s health records the blood test was taken at 23:39 hours on May 17, 2016 and that as a phlebotomist she does not receive the results of the test, she simply takes the specimen. [ 17 ] The Crown called Karen Chan, a Forensic Alcohol Specialist with the RCMP National Forensic Laboratory Services in Vancouver, British Columbia. Ms. Chan was qualified as an expert in providing interpretative evidence to the Court regarding

physiology of alcohol which includes the absorption, distribution and elimination of alcohol from the human body and the pharmacology of alcohol which includes the effects of alcohol on behaviour and motor function and how this relates to the operation of a motor vehicle. Defence counsel took no issue with Ms. Chan’s qualifications. [ 18 ] Ms. Chan prepared a report marked as Exhibit P-7 in the trial and testified as to Ms. Heinbigner’s blood alcohol concentration (BAC) as of 22:37 hours the estimated time of the accident. It was her opinion that Ms.

Heinbigner’s blood alcohol level would be between 228 and 268 milligrams of alcohol in 100 millilitres of blood at that time. This calculation assumed there had been no alcohol consumed in the 30 minutes prior to the time of the incident. [ 19 ] Ms. Chan also calculated how much alcohol would need to be in the accused’s stomach unabsorbed in order for the accused to have a BAC of 80 milligrams at 22:37 hours. The accused would have had to have consumed 4.9 to 6.2 ounces of 40% liquor, 3.1 to 3.9 cans of 5% beer or 6.2 to 20.5 ounces of 12% wine.

She noted that social drinking would typically involve one standard drink in about 30 minutes. A standard drink being one beer, one glass of wine or one ounce of 40% liquor. If a person drinks more than that amount in a 30 minute period of time that would be regarded as bolus drinking. She also indicated that the amounts of alcohol that would need to be consumed were the theoretical minimums and that an individual may need to consume up to twice the calculated amount.

This is because the calculation assumes that 100% of the alcohol is absorbed when in fact some of the alcohol is metabolised and not all of it would reach the blood. She noted it takes 30 minutes from the time someone stops drinking for the peak blood alcohol blood concentration to be achieved and thereafter the BAC decreases. [ 20 ] Ms.

Chan stated that if an individual has a BAC of 228 to 268 milligrams per cent one would expect signs of heavy intoxication, there would be an odour of beverage alcohol, the individual would have a flushed face and bloodshot, watery eyes, and there would be the potential for slurred speech, a deterioration of coordination, fumbling, exaggerated emotional states, problem with memory and mental confusion. She also indicated there could be a loss of consciousness for individuals with a BAC over 300 milligrams per cent. [ 21 ] Ms. Chan relied upon the information contained in Ms.

Heinbigner’s health records to make the calculations she did and provide her opinion on the BAC of Ms. Heinbigner at the time of the accident. She relied upon the height and weight information along with the results of the blood tests specifically, the amount of ethanol in the blood at the time the sample was taken. [ 22 ] The defence called no evidence. The Defence Argument [ 23 ] Mr. Mitchell argued that Ms.

Chan’s opinion on BAC at the time of the accident was based upon the hospital records, that the Crown had not proven continuity of the blood samples and as a result there was reasonable doubt about the accuracy of her opinion. Mr. Mitchell asserted there was no evidence of who took the blood, how it was done or how continuity of the sample was maintained. He acknowledged that there was evidence on how blood tests are generally done, but no specific evidence for this night and for this individual. Mr.

Mitchell argued that the Court cannot rely on opinion evidence that is based on hospital records not proven as accurate. Defence argued that the Crown had not proven the .08 charge beyond a reasonable doubt. [ 24 ] Further, with respect to the impaired driving charge, Mr. Mitchell argued that the Court could not rely upon Ms. Chan’s report because it is based upon flawed evidence and that there were no other overt signs of impairment or there was insufficient evidence to establish impairment.

He acknowledged that Constable Tuck had noted the smell of alcohol but there was chemical in the air which could explain the glassy eyes. There was no slurred speech, there was no admission of alcohol consumption and there was no driving pattern evidence before the incident. Ms. Heinbigner was driving fast and had an accident. Mr. Mitchell argued I should acquit on both charges. Analysis [ 25 ] The Crown’s case against the accused hinges on the opinion evidence of Ms. Chan. Ms. Chan’s evidence relies upon the hospital records of Ms.

Heinbigner which include blood test results showing an ethanol level of 59 mmol/litre at 23:39 hours on May 17,

2016. Mr. Mitchell is suggesting that the hospital records are not reliable as continuity of the blood sample has not been proven. Mr. Mitchell did not object to the hospital records being entered into evidence and he did not present any evidence which would raise a doubt regarding their reliability and accuracy. [ 26 ] As determined in R v Smith , 2011 ABCA 136 , 273 CCC (3d) 525 hospital records are capable of being admitted as evidence for the proof of their contents sufficient to meet the requirements of proof beyond a reasonable doubt.

Under s. 30 of the Canada Evidence Act, RS , c E-10, s 1 (CEA) the hospital records, without more, and in the absence of other evidence sufficient to raise a doubt in the mind of the trier of fact, can be used to prove the facts contained in the record beyond a reasonable doubt. [ 27 ] Section 30(9) of the CEA offers an accused the safeguard of being able to apply for leave to cross-examine the maker of the contents of the record entered pursuant to s. 30(1).

If defence counsel wanted to challenge the information found in the records he had the opportunity to do so in cross-examination of the lab manager and the phlebotomist. The cross-examination of the lab manager was limited and there was no cross-examination of the phlebotomist. There was really no challenge of the information contained in the accused’s health records and the test results that were part of the record. [ 28 ] In R v Murray, 2011 ONSC 3735 , [2011] OJ No 2875 (QL) at paras 77-78 , E.J.

Koke J. affirmed: [77] In assessing how much weight I am to place on the test results, I am compelled to consider not only the fact the testing was conducted by a qualified technologist, but also the fact the laboratory in which the testing equipment was located and in which the testing and analysis was performed was in a large urban hospital. This laboratory was designed to service doctors and other trained medical professionals.

It is implicit that these medical professionals were prepared to rely on the laboratory results to make their decisions, decisions which impact the health, and sometimes the life of hospital patients. It is also implicit that a laboratory which is designed and operated for these purposes will use reliable and well maintained and calibrated equipment. [78] On these facts, I am prepared to find that the test results are acceptable from the standpoint of accuracy and reliability... [ 29 ] In this case we have the evidence of Ms.

Haugrud with respect to the laboratory functioning and the quality controls that exist within the lab at RUH. We also have evidence about the equipment used for testing and how the machine will reject a sample that lacks integrity. In addition, we had the evidence of the phlebotomist who drew the blood sample from the accused.

She did not have any independent recollection of this patient or really any patient, but relied upon following the same standard of procedure for every time she takes blood. [ 30 ] I am satisfied that the hospital records presented in evidence prove the facts contained therein beyond a reasonable doubt. No evidence was presented that would raise a reasonable doubt. I accept the records as being accurate and reliable and as such the foundation for Ms. Chan’s opinion evidence is established. [ 31 ] I accept Ms.

Chan’s calculation of the range of blood alcohol concentration at the time of the accident and her assumption that there was no bolus drinking just prior to the accident. There was no evidence led regarding bolus drinking and it has been well established that if an individual wants to rely upon bolus drinking and challenge the determination of the BAC, some minimal evidence in that regard must be led by the defence. [ 32 ] I am also prepared to accept Ms.

Chan’s assessment of impairment at the blood alcohol levels as calculated and although impairment can be affected by tolerance to alcohol there were signs that Ms. Heinbigner’s ability to operate the motor vehicle was impaired, which included travelling at a high rate of speed through a parking lot, entering into a parking lot over a sidewalk and grassy area as compared to the entry and exit way, crashing into a cart corral and dragging that a short distance, exiting the parking lot across a sidewalk and grassy area, proceeding across a roadway and driving into the side of a building. Additionally, Ms.

Heinbigner smelled of beverage alcohol, she had glassy eyes and she was in an agitated emotional state, at times being cooperative and respectful and other times being emotional, angry and belligerent. I can conclude that all of these things are signs of impairment. [ 33 ] On all of the evidence I am satisfied that the Crown has proven the charges beyond a reasonable doubt and I find Ms. Heinbigner guilty of driving while impaired and driving while her blood alcohol content exceeded .08. In light of this decision and in

consideration of the Kienapple principle the Crown stayed the impaired driving charge. __________________________________ M.E.Z. Penner, J