Her Majesty the Queen - v. -, 2014 SKPC 107

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 107 Date: July 4, 2014 Information: 24467896 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clinton Skorlatowski Appearing: Will Collins For the Crown Ron Piche For the Accused JUDGMENT D.E. LABACH , J [ 1 ] On December 21, 2011, Constable Neufeld, a member of the Radisson RCMP detachment, received a complaint of a white GMC truck that had swerved and almost hit the ditch twice just outside the town of Radisson.

In response to this complaint, he began patrolling Highway 16 looking for this truck. The complainant had provided a licence plate number for the truck but the number provided did not correspond to a white GMC truck. [ 2 ] On this same date, Gurpreet Bhatti was driving a semi tractor trailer unit southeast on Highway 16. He was on his way back to Winnipeg, Manitoba with an empty trailer. He was approximately 50 kilometres from Saskatoon when he noticed a vehicle coming up

behind him. He was travelling 90 to 95 kilometres per hour when the vehicle hit the back of his trailer. His head snapped forward and loose items were tossed around the cab of his semi. He did not see the accident nor could he recall if the vehicle was a car or a truck but he pulled the semi over to the side of the road immediately after the accident. He estimated the time to be somewhere around 10:00 p.m. or 10:30 p.m. [ 3 ] Dearle Tilsley saw the accident.

He was driving a Prince Albert Northern Bus Lines tour bus southeast on Highway 16, taking the Humboldt Broncos hockey team back home after a game in North Battleford. He was travelling 68 to 72 miles per hour when a half ton truck passed him and then pulled back in to the lane in front of him. The truck passed him properly and did not appear to be driving erratically. [ 4 ] About a quarter to a half a mile ahead of him, Mr. Tilsley saw the semi trailer being driven by Mr. Bhatti. The semi trailer had its driving lights on.

There were no vehicles between his bus and the semi trailer except for the truck that had just passed him. Suddenly the truck’s brake lights came on and the truck hit the back of the semi trailer. The truck veered into the ditch and ended up in a clump of bushes by the railway tracks that ran parallel to the highway. [ 5 ] Mr. Tilsley immediately stopped his bus and ran over to the truck along with the coaches, the training staff and some of the players from the hockey team.

When he got to the truck, someone had opened up one of the truck doors and he saw what he thought was a man laying across the steering wheel and the airbag. Since the trainers and some of the people on the hockey team had medical training, he left them to deal with this fellow. He returned to his bus and set up flares to warn others of the accident. [ 6 ] Mr. Tilsley thought that the accident happened around 11:00 p.m. or 11:30 p.m. because they were only a half hour southeast of North Battleford when he saw the accident occur.

However in his driver’s logbook he recorded that he had stopped for the accident around 10:30 p.m. [ 7 ] According to Mr. Tilsley, it was a bit foggy out at the time of the accident but you could still see. The highway was dry but had icy patches. As they got off the bus, someone called the RCMP and in his estimation, they arrived some ten to fifteen minutes after the accident. [ 8 ] At 11:05 p.m., Constable Neufeld, while still patrolling Highway 16 looking for the white GMC truck from the earlier complaint, received a dispatch of an accident on the highway, two kilometres east of Borden.

He responded and arrived at the scene at 11:18 p.m. He immediately noticed a semi trailer and a bus stopped on the side of the highway and a white truck in the ditch in a stand of shrubs. Upon exiting his police cruiser, he noted a number of members of the Humboldt Broncos hockey club around the truck in the ditch. [ 9 ] He spoke briefly with Mr. Tilsley before approaching the truck. He could not look in the driver’s window of the truck because of the way the truck was hung up in the shrubs but he could see a person in the driver’s seat and a hockey player in the back of the truck stabilizing his neck .

He could also smell an odour of alcohol around the truck. He asked if anyone knew the driver’s name and some of the players said “Clint”. He later came to know this person as the accused, Clinton Skorlatowski. The accused was pinned in the driver’s seat and told the officer that he was not doing so good. [ 10 ] This truck matched the description of the truck that was the subject of the earlier complaint. As a result, he asked the accused if he had been drinking that night. Initially the accused said “No”, but then he said “ Just a couple”.

Constable Neufeld walked to the back of the truck and recorded the plate number. The number was the same number as the licence plate of the white GMC truck he had been looking for except for one letter. When he ran the plate, the accused came back as the registered owner. [ 11 ] Constable Neufeld then returned to the accused’s truck and looked in the passenger side of the vehicle. He saw a number of beer cans, some of which were crushed. The smell of alcohol was very strong. At this time, First Responders, EMT personnel and other RCMP members had arrived.

The First Responders and the paramedics began dealing with the accused. He directed the other members to complete certain tasks while he took a statement from Dearle Tilsley. [ 12 ] After he was finished taking Mr. Tilsley’s statement, he noticed that the First Responders had cut the accused out of the

truck. The EMT personnel had placed the accused on a spine board and were transferring him to an ambulance. He was in a great deal of pain. Based on what he knew to this point, Constable Neufeld had a belief that the accused had been drinking and this may be an impaired driving situation. He thought that he may make a breath demand or a blood demand on the accused but did not feel that he had the evidence to arrest the accused for impaired driving at that time.

Instead, he decided to ride in the ambulance and keep the accused under observation. [ 13 ] The ambulance left the scene at 12:10 a.m. and drove to Royal University Hospital in Saskatoon. They arrived at the hospital at 12:52 a.m. He did not speak to the accused on the way to the hospital however he overheard the accused make some comments to the EMT personnel that he had had a couple of drinks that day, but no supper. When they arrived at the hospital, the accused was placed in a room and medical personnel began dealing with him immediately. He stood back and observed.

The only time he left the room was when x-rays were taken and when the phlebotomist attended. [ 14 ] At the hospital, Constable Neufeld observed the accused going in and out of consciousness. It quickly became obvious to the officer that the accused was not going to be able to accompany him to the detachment to provide a breath sample. As a result, he asked Dr. Cload, the emergency room physician dealing with the accused, if the accused would be able to understand a blood demand given the shape he was in. Dr. Cload told him that the accused would not be coherent enough to understand anything he said to him.

He advised Dr. Cload and a nurse on duty at the time, that he would return with a warrant for a sample of the blood that the hospital had drawn from the accused. Then he left the hospital. [ 15 ] Days later, Constable Neufeld was able to get a warrant authorizing seizure of the blood taken from the accused by the phlebotomist on December 22, 2011. On December 28, 2011, Constable Neufeld attended Royal University Hospital and, on the basis of the warrant, seized two vials of the accused’s blood.

He put the vials in separate exhibit bags and stored them in the refrigerator at the Warman RCMP detachment until he was able to get authorization to send the samples to the Forensic Laboratory in Winnipeg for testing. The Laboratory was prepared to analyze the blood but asked Constable Neufeld to obtain the accused’s hospital records for December 22, 2011.

On February 2, 2012, he obtained these records and sent the blood and the hospital records to the Laboratory for analysis. [ 16 ] Richelle Booker, an analyst with the National Forensic Laboratory analyzed the blood sample seized pursuant to the warrant and prepared a Certificate of Analyst dated March 13, 2012. According to the Certificate, upon testing the accused’s blood plasma taken at 1:05 a.m. on December 22, 2011, the accused’s blood alcohol level was 231 milligrams of alcohol in 100 millilitres of blood. [ 17 ] Dr.

Tracy Cherlet, an expert in forensic toxicology and pharmacology from the Forensic Laboratory, reviewed the medical records of the accused seized from the hospital. The records indicated that the hospital’s analysis of the accused’s blood plasma revealed a level of ethanol of 51 millimoles per litre of blood. Dr. Cherlet explained that ethanol and alcohol are synonymous. She performed some calculations and determined that the hospital’s result was equivalent to 235 milligrams of alcohol in 100 millilitres of blood. [ 18 ] For reasons which I will explain later in this judgment, Dr.

Cherlet converted both the results from the Forensic Laboratory and from the hospital records from a blood plasma concentration to a whole blood concentration. Then she provided an opinion as to the accused’s blood alcohol concentration assuming a time of driving of 10:30 p.m. on December 21, 2011. According to her, using the figure in the Certificate of Analyst prepared by the Laboratory, the accused’s estimated whole blood alcohol concentration at 10:30 p.m. would be between 211 milligrams percent and 262 milligrams percent.

Using the figure in the hospital records, the accused’s estimated whole blood alcohol concentration would be between 214 milligrams percent and 265 milligrams percent. She said that if the time of driving was 30 minutes earlier, the estimates would be 5 to 10 milligrams percent higher; if the time of driving was 30 minutes later, the estimates would be 5 to 10 milligrams percent lower. [ 19 ] On April 15, 2012, the accused was served with an Appearance Notice charging him with impaired driving contrary to section 253(1) (

a) of the Criminal Code and driving with a blood alcohol level exceeding .08 contrary to section 253(1) (

b) of the Criminal Code . He entered a not guilty plea to both of these charges and eventually came before me for trial. Prior to the trial, Defence Counsel filed a Notice of Charter Application alleging, among other things, a breach of the accused’s sections 10(

a) and 10(

b) Charter rights and asking for an exclusion of evidence pursuant to section 24(2) of the Charter if either or both of these breaches were established. The Crown acknowledged receiving proper notice of these Charter issues. The trial began and at the appropriate juncture the Court entered into a voir dire on these Charter issues. At the conclusion of the voir dire , both counsel reserved their arguments to the end of the trial. They then agreed to apply the evidence from the voir dire to the trial proper subject only to my rulings on the Charter issues.

Neither Crown nor Defence called any further evidence on the trial proper and both closed their respective cases. At the outset of closing argument on all issues in the case, Defence counsel advised that they would be abandoning all the alleged Charter issues set forth in their Notice except for the arguments on sections 10 and 24 of the Charter .

[20] Accordingly, the issues are as follows:

a) Was there a violation of the accused’s sections 10(

a) or 10(

b) Charter rights?

b) If there was a breach of the accused’s sections 10(

a) or 10(

b) Charter rights, should any evidence obtained as a result of, or afterthe said breaches be excluded pursuant to section 24(2) of the Charter?

c) Has the Crown proven beyond a reasonable doubt that the accused’s blood alcohol concentration exceeded .08 at the time ofdriving?

d) Has the Crown proven beyond a reasonable doubt that the accused was driving his vehicle while his ability to do so wasimpaired?

a) Was there a violation of the accused’s sections 10(

a) or 10(

b) Charter rights? [21]

Section 10 of the Charter speaks to an individual’s rights upon restraint of their liberty by the state. This

section states, inpart, as follows: 10. Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor;

b) To retain and instruct counsel without delay and to be informed of that right [22] These rights are simple and straightforward. A person is entitled to be informed of the reasons for their arrest or detention sothat they know why their liberty is being taken away. This is important because a person is not obliged to submit to an arrest if they donot know the reasons for it. Another purpose in communicating this information to a person is to allow them to immediately undertaketheir defense, including what response, if any, they should make to the accusation.

It goes hand in hand that a person can only exercisetheir right to counsel in a meaningful way if they know the extent of their jeopardy. See R. v. Evans, (SCC), [1991] 1S.C.R. 869 (S.C.C.) at paragraphs 2 and 31. [23] It is usually fairly easy to determine when the police arrest someone and thus when a person’s

section 10 Charter rights aretriggered. However if a person is not arrested, it can be a more challenging task to determine at what stage police interaction with themamounts to a detention sufficient to trigger the protections set forth in

section 10. As was pointed out by Chief Justice McLachlin andMadame Justice Charron in R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460 (S.C.C.), “. . . defining what constitutes adetention for Charter purposes requires courts to balance individual constitutional rights against the public interest in effective lawenforcement”. [24] Detention refers to a suspension of a person’s liberty interest by a significant physical or psychological restraint. Again, aphysical detention would seem obvious.

A psychological detention is established either where a person has a legal obligation to complywith a police request or demand or a reasonable person would conclude by reason of state conduct that he or she had no choice but tocomply. To determine whether a reasonable person would conclude that they had been deprived by the state of liberty of choice, a courtmay consider the circumstances giving rise to the encounter as they would reasonably be perceived by the person, the nature of thepolice conduct and the particular characteristics or circumstances of the person involved. See R. v.

Grant, 2009 SCC 32 ,[2009] 2 S.C.R. 353 (S.C.C.) at paragraphs 28 to 32 and 44; R. v. Suberu, supra, at paragraph 25.

[25] Once a person is detained,

section 10(

b) of the Charter guarantees the person the right to retain and instruct counsel withoutdelay and to be informed of that right. Concurrent with this informational duty, the police must provide a person with a reasonableopportunity to retain and instruct counsel and to refrain from eliciting incriminatory evidence from the person detained until he or she hashad a reasonable opportunity to reach a lawyer or has unequivocally waived the right to do so. Like most rules, there are exceptions. Inthe case of the immediacy of the

section 10 Charter obligation, the exceptions are concerns for officer and public safety or reasonablelimitations prescribed by law and justified under

section 1 of the Charter. See R. v. Suberu, supra, at paragraphs 2, 37 to 42. [26] However, the Supreme Court has made it clear that not every interaction with police will amount to a detention for thepurposes of the Charter even when a person is under investigation for criminal activity, is asked questions or is physically delayed bycontact with the police. The

section 10 obligations only arise on arrest or detention and in this way, strike a balance between individualrights as guaranteed by the Charter and the collective interest of society in the ability of police to act on their behalf to investigate andprevent crime. The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty ofchoice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal tothe application.

However the applicant’s contention must be supported by the evidence and a judge must look at the entire interaction asit developed. See R. v. Grant, supra at paragraphs 32 to 43; R. v. Suberu, supra at paragraphs 28 and 29; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.) at paragraph 19; R. v. Evans, supra at paragraph 72. [27] In the present case, the accused was never arrested by the police on December 21 or 22, 2011. Instead, a review of the courtrecord shows that the accused was served with an Appearance Notice advising him of the charges and the date of his first courtappearance.

The date of the Appearance Notice was April 15, 2012, well after the date the accident occurred. [28] The question in this case is whether the accused was detained by the police on December 21 or 22, 2011. If he was detained,there was an obligation on the police to advise the accused why he was being detained and to provide him with his right to counsel andthe opportunity to consult counsel. If he was not detained, no such police obligation existed. The Defence urges me to find that theaccused was detained; the Crown says that the accused was not. [29] The investigating officer in this case was Constable Neufeld.

He was the first police officer to attend the accident scene, heassumed control of the investigation, he directed other members to do things in furtherance of his investigation and according to theevidence, he appears to be the only officer that had any contact with the accused. [30] When Constable Neufeld arrived at the accident scene, he found a white GMC truck in the ditch on an embankment in a standof shrubs. The accused was pinned behind the steering wheel but was conscious. The truck matched the description of the truck he hadearlier been looking for that was purportedly driving erratically.

The licence plate on the accused’s truck was one letter out from thelicence plate of the truck in the earlier complaint. The officer smelled a strong odour of beverage alcohol outside the truck and on thepassenger side of the truck and noticed some beer cans in the truck, some of which were crushed. He could not however get closeenough to the accused to determine if he had an odour of alcohol on his breath or whether he was exhibiting any signs of impairment. Constable Neufeld asked the accused if he had been drinking that day and the accused advised that he had had “Just a couple”. Inspeaking to Mr.

Tilsley, the bus driver, the officer found out that the accident occurred because the accused ran into the back of a well litsemi tractor trailer unit. [31] This was the sum total of the information Constable Neufeld had when the accused was cut out of his truck and placed in theback of the ambulance. Based on this information, he believed the accused had been drinking.

As a result of this, he decided to ride inthe ambulance with the accused to the hospital to find out what the accused’s injuries were, whether he was going to be able to provide abreath sample or comply with a blood demand, to stay with him to ensure that he was not taking anything or was released and to avoidmissing an opportunity to gather any more evidence. [32] In cross examination, Constable Neufeld clarified his position on getting into the ambulance with the accused.

He said that hewas investigating a potential impaired driving situation but at that point he was not sure if the accused could provide a breath sample ornot. If he determined that the accused could not provide a breath sample, he was going to be looking at a blood demand. Later in crossexamination he stated that he was only contemplating a breath test or a blood demand but at that stage he did not have the grounds toarrest the accused for impaired operation.

[ 33 ] On the ride in to Saskatoon, Constable Neufeld did not glean any other information that would assist his impaired driving investigation or that he did not already know. The accused was in and out of consciousness on the drive to the hospital. The officer did not have any conversation with him in the ambulance. He just sat and observed.

At one point he overheard the accused tell one of the ambulance attendants that he had not had anything to drink that day and then that he had a couple drinks that day but had not had anything to eat since noon. [ 34 ] Once at the hospital, Constable Neufeld stayed in the examining room with the accused while the medical staff attended to him. Again, he did not speak to the accused. He stood in a corner away from the medical personnel and observed. The only time the officer left the accused was when the x-ray technician attended and took some x-rays and when the phlebotomist took blood from the accused.

At one point he asked Dr. Cload, the Emergency Room doctor, whether the accused would be able to comprehend a blood demand or Charter rights. The doctor told him that the accused would not be coherent enough to understand anything he read to him at that point in time. [ 35 ] Constable Neufeld never advised the accused that he was detained for any reason. He never gave him his Charter rights, a police warning or made a breath or blood demand. He never had any physical contact with the accused, never searched him or handcuffed him.

Short of a couple of questions at the accident scene, he had no other conversation with the accused. After determining that the accused was not in any shape to understand anything, he advised Dr. Cload and a nurse that he would be getting a warrant to seize the blood they had taken from the accused. Then he left. [ 36 ] Based on what he initially observed, the statement from Mr. Tilsley, the accused’s admission that he had had a couple and the substance of the earlier complaint, Constable Neufeld quite properly suspected that this may be a case of drinking and driving.

But he recognized that he did not yet have sufficient evidence to arrest the accused for impaired driving. He wanted to gather further evidence but after observing the accused in the ambulance and then in the hospital nothing further presented itself.

I got the impression that at some point he was going to demand either a breath sample or a blood sample from the accused and would be detaining him for that purpose, however without having reasonable grounds to arrest the accused for impaired driving, I am not sure on what basis he felt that he could make either of those demands. [ 37 ] In any event, this point is moot. After asking the accused if he had had anything to drink that night, Constable Neufeld had no further conversation , interaction or dealings with the accused except observing him.

The longer he observed the accused, the more apparent it became that the accused would not be able to comprehend a breath demand, a blood demand or his respective Charter rights nor was he in any shape to provide a sample of his breath or exercise his rights. As a result, the officer did not ask the accused for anything, make any demands on him or order him to do anything. He did not ask or order the EMT personnel or the hospital staff to do anything for him.

It is clear that Constable Neufeld decided that he was not going to be able to proceed any further in his investigation at that time and consequently, he left the hospital. [ 38 ] The accused did not testify on the voir dire so there is no evidence as to whether he felt that he could not leave or that he had to do something. There was evidence that he was injured in the accident and that he was in a lot of pain. There was also evidence that he was in and out of consciousness on the way to the hospital and at the hospital and that he did not have the ability to comprehend things put to him.

The accused was never handcuffed and when Constable Neufeld left the hospital, no officer stayed to maintain custody of the accused. [ 39 ] Looking at the evidence on the voir dire as a whole, I am satisfied that the accused was never arrested by Constable Neufeld nor was he ever detained either physically or psychologically by the officer. The officer was simply observing the accused to determine if he saw or heard anything that would be of significance in his drinking and driving investigation. He may have thought at one point that he was going to make a breath or blood demand on the accused but he never did.

It does not matter why he did not pursue such a demand only that he did not pursue it. By not pursuing it. He had no reason to detain the accused. As stated in Grant , supra , at paragraph 38 , the Charter does not require that police abstain from interacting with persons until they have specific grounds to connect a person to the commission of a crime. Police can continue to question someone, or in this case, observe someone, in pursuit of their investigation. All Constable Neufeld was doing in this case was pursuing his investigation.

By the time he left the hospital, he had determined that his only way of proceeding was to try to get a warrant for the blood the hospital had taken from the accused. He had no basis to arrest or detain the accused or charge him with anything. That being the case, there was no breach of the accused’s

section 10 Charter rights and I dismiss the accused’s application.

b) If there was a breach of the accused ’s sections 10(

a) or 10(

b) Charter rights, should any evidence obtained as a result of, or

after the said breaches be excluded pursuant to section 24(2) of the Charter? [ 40 ] Given that I have not found a breach of the accused’s

section 10 Charter rights, there is no need for me to consider whether any evidence should be excluded pursuant to section 24(2) of the Charter and I decline to do so. All evidence on the voir dire will become evidence on the trial proper, subject only to any further applications Defence may wish to make.

c) Has the Crown proven beyond a reasonable doubt that the accused ’s blood alcohol concentration exceeded .08 at the time of driving? [ 41 ] The Crown entered as exhibits in this case, among other things, a Notice of Intention to Produce Business Records containing two affidavits and the accused’s hospital laboratory records for December 22, 2011 attached, the Certificate of Analyst provided by Ms. Booker, another copy of the accused’s hospital laboratory records for December 22, 2011 seized by the police under The Health Information Protection Act and the report prepared by Dr. Cherlet.

All of these documents were entered with the consent of the Defence subject only to any arguments they wished to make at the close of trial. [ 42 ] Based on the evidence, the documents entered as exhibits and Dr. Cherlet’s expert testimony, the Crown argued that they can prove that the accused was driving while his blood alcohol concentration was over .08 in three ways:

a) by relying on the Certificate of Analyst prepared by Ms. Booker after she analyzed the accused’s blood seized under warrant from the hospital and Dr. Cherlet’s expert opinion reading back the accused’s blood alcohol concentration to the time of driving;

b) by relying on the accused’s hospital records for December 22, 2011, seized and entered under

section 30 of The Canada Evidence Act as a business record, Dr. Cherlet’s expert opinion translating the results to milligrams percent and reading back the accused’s blood alcohol concentration to the time of driving; and

c) by relying on the accused’s hospital records for December 22, 2011, seized pursuant to The Health Information Protection Act , Dr. Cherlet’s expert opinion translating the results to milligrams percent and reading back the accused’s blood alcohol concentration to the time of driving. [ 43 ] Crown counsel admitted in their closing argument that the hospital laboratory records seized under a Production Order and tendered in the trial as business records pursuant to

section 30 of The Canada Evidence Act and the records seized under The Health Information Protection Act were identical and that the only reason he had them both tendered as evidence was in case Defence successfully challenged the validity of the Production Order. Since Defence counsel took no issue with the Production Order, proving the accused’s blood alcohol was over .08 at the time of driving pursuant to these two sets of documents was the same according to the Crown. [ 44 ] One of the important elements of this case is the time at which the accused was driving. Mr.

Bhatti, the driver of the semi trailer estimated the time of the accident to be 10:00 p.m. or 10:30 p.m. on December 21, 2011. The bus driver, Mr. Tilsley, thought that the accident happened at 11:00 p.m. or 11:30 p.m., however in his driver’s log book, he had made a notation that he stopped for the accident between 10:30 p.m. and 11:30 p.m. The only other evidence that would assist the Court in determining the time of the accident came from Constable Neufeld. He testified that he received a dispatch about the accident at 11:05 p.m. and he arrived at the accident scene at 11:18 p.m. Mr.

Tilsley said that somebody called the RCMP as they were getting off the bus and that it took 10 to 15 minutes before the first officer arrived. [ 45 ] I do not put much weight to Mr. Bhatti’s or Mr. Tilsley’s recollections as to when the accident occurred. Both seemed to be guessing and unsure about what they recalled. In my view, Constable Neufeld’s testimony provides the most accurate information as to when the accident occurred as he made specific notes about when he was dispatched and when he arrived on scene. If the accident happened at 10:00 p.m. or 10:30 p.m. as Mr. Bhatti or Mr.

Tilsley possibly suggest, it does not ring true that the police were dispatched at 11:05 p.m. This was a serious accident on one of Saskatchewan’s major highways and people were stopping to lend assistance immediately after the accident occurred. Mr. Tilsley confirmed that the police were called right away. It is a reasonable inference that whoever received the call at the RCMP Communications Centre would then have dispatched Constable Neufeld and/or other officers minutes after that.

Since Constable Neufeld was dispatched to the accident at 11:05 p.m., I am satisfied that the accident must have occurred at 11:00 p.m. or just minutes before that. Mr. Tilsley’s comment that it only took officers 10 to 15 minutes to arrive once they were called, coupled with the fact that Constable Neufeld arrived at the scene at 11:18 p.m., further supports this conclusion.

[ 46 ] The blood sample was taken from the accused at the hospital at 1:05 a.m. on December 22, 2011. Since the sample was taken more than two hours after the time of driving, the Crown is not able to rely on the statutory presumption in

section 258 of the Criminal Code that the accused’s blood alcohol reading at the time of the analysis is proof of the accused’s blood alcohol reading at the time of the accident. Where the presumption is inapplicable, the Crown must call expert evidence to relate the accused’s blood alcohol concentration at the time of the analysis back to the time of driving. [ 47 ] In this case, the Crown tendered expert opinion evidence from Dr. Tracy Cherlet. Defence counsel agreed that Dr.

Cherlet was a forensic toxicologist and pharmacological expert qualified to give opinion evidence regarding the analysis of blood for the presence of alcohol and other similar volatile substances, retrograde and anterograde estimates of blood alcohol concentrations, physiology of alcohol regarding the absorption, distribution and elimination of alcohol and the effects of alcohol on the human body and the ability to operate a motor vehicle. [ 48 ] Dr.

Cherlet was provided with the December 22, 2011 laboratory records from Royal University Hospital for the accused and the Certificate of Analyst prepared by Richelle Booker, the technician who analyzed the sample of the accused’s blood that had been seized from the hospital under warrant. Dr. Cherlet explained that when a hospital takes blood from a person, they are taking a whole blood sample. However, when determining an ethanol level, a hospital laboratory typically analyzes blood serum or blood plasma, rather than whole blood. Blood plasma is the liquid component of blood in which blood cells are suspended.

If you take the blood plasma and remove the clotting factors you are left with blood serum. Both blood plasma and blood serum contain more water than whole blood. Since alcohol distributes in proportion to the water content in a tissue or fluid, the alcohol concentration in blood plasma or blood serum will be higher than that of whole blood. [ 49 ] In this case, Dr. Cherlet assumed that the blood alcohol result obtained by the hospital laboratory was based on their analysis of the accused’s blood plasma or blood serum. This assumption has support in the Certificate of Analyst as Ms.

Booker notes that the sample seized from the hospital and analyzed by her was blood plasma. According to Dr. Cherlet, the reference in

section 253 of the Criminal Code to “80 milligrams of alcohol in 100 millilitres of blood” is a reference to whole blood, not separated blood. Thus, for the purposes of this case, she converted the blood plasma or blood serum alcohol concentration to a whole blood alcohol concentration. [ 50 ] Before doing this conversion, Dr. Cherlet pointed out that while the results of Ms. Booker’s analysis were in milligrams of alcohol in millilitres of blood, the hospital’s analysis was in millimoles of ethanol per litre of blood.

The terms ethanol and alcohol are interchangeable however she calculated that the hospital’s result of 51 millimoles of ethanol per litre of blood was equivalent to 235 milligrams of alcohol in 100 millilitres of blood. This compared favourably to the result of 231 milligrams of alcohol in 100 millilitres of blood obtained by Ms. Booker in her analysis of the accused’s blood sample. Dr. Cherlet attributed the slight difference in the two figures to the different techniques used at the hospital and at the Forensic Laboratory to analyze the blood samples. [ 51 ] Dr.

Cherlet took this hospital result (225 mg of alcohol/100 ml of blood) and the Forensic Laboratory result (231 mg of alcohol/100 ml of blood) and converted them to a whole blood alcohol concentration using an alcohol ratio range.

After performing these calculations, it was her opinion that the accused’s whole blood alcohol concentration at 1:05 a.m. on December 22, 2011 was between 188 milligrams percent and 214 milligrams percent using the hospital result and between 185 milligrams percent and 210 milligrams percent using the Certificate of Analyst. [ 52 ] Using these two sets of ranges for the accused’s blood alcohol concentration at 1:05 a.m., Dr. Cherlet then did a read back from each range to determine the accused’s blood alcohol concentration at the time of the accident.

For the purposes of this read back, she assumed that the accident occurred at 10:30 p.m. She also made the following further assumptions:

a) the highest or peak blood alcohol concentration that the accused would have achieved would have been reached by the time the collision occurred, that is, no bolus drinking;

b) no alcohol was consumed by the accused after the time of the collision and prior to the time of the blood sample being taken; and

c) the accused eliminated alcohol from his body at a rate of 10 to 20 milligrams percent per hour.

[ 53 ] Doing a read back from 1:05 a.m. using the range established by the hospital result, Dr. Cherlet estimated that at 10:30 p.m. the previous day, the accused’s blood alcohol concentration would be between 214 milligrams percent and 265 milligrams percent; using the range established by Ms. Booker’s analysis, she estimated that at 10:30 p.m. the accused’s blood alcohol concentration would be between 211 milligrams percent and 262 milligrams percent. [ 54 ] Dr.

Cherlet explained that her read back calculations were not dependent on age, weight, gender or height, but if the collision occurred at 10:45 p.m. rather than 10:30 p.m., her estimates would be three to five milligrams percent lower and if the collision occurred at 11:00 p.m. her estimates would be five to ten milligrams percent lower. According to her, variations in time of a few minutes one way or the other would not appreciably affect her estimates. [ 55 ] Finally, Dr.

Cherlet was asked to estimate how much alcohol would have to be unabsorbed after the accident in order for a person to have a blood alcohol concentration of 80 milligrams percent at the time of the accident and a corresponding blood alcohol concentration of either 188 milligrams percent or 185 milligrams percent at 1:05 a.m. the next morning. She explained this by saying that if the peak blood alcohol concentration had not been achieved at the time of the accident, how much alcohol does a person have to consume to have a reading of .08 at the time of the accident and a reading of either .188 or .185 at 1:05 a.m.

According to her, this calculation was dependent on gender and weight of the person and she required this information for her estimate to be accurate. [ 56 ] Dr. Cherlet provided beverage alcohol equivalent estimates for an adult male at a number of different weights based on a blood alcohol reading of 80 milligrams percent at 10:30 p.m. and a corresponding reading of 188 milligrams percent and 185 milligrams percent at 1:05 a.m. These estimates are as follows:

a) a 220 lb male would have to consume a minimum of either 9.8 oz of hard liquor (40 % alcohol by volume) or 6.3 cans of beer (5% alcohol by volume, 355 ml cans) to have a blood alcohol concentration (BAC) of 80 milligrams percent at 10:30 p.m. and a BAC of 188 milligrams percent at 1:05 a.m. or 9.6 oz of hard liquor or 6.1 cans of beer to have a BAC of 185 milligrams percent at 1:05 a.m.;

b) a 200 lb male would have to consume a minimum of 8.9 oz of hard liquor or 5.7 cans of beer to have a BAC of 80 milligrams percent at 10:30 p.m. and a BAC of 188 milligrams percent at 1:05 a.m. or 8.7 oz of hard liquor or 5.6 cans of beer to have a BAC of 185 milligrams percent at 1:05 a.m.;

c) a 180 lb male would have to consume a minimum of 8.0 oz of hard liquor or 5.1 cans of beer to have a BAC of 80 milligrams percent at 10:30 p.m. and a BAC of 188 milligrams percent at 1:05 a.m. or 7.8 oz of hard liquor or 5 cans of beer to have a BAC of 185 milligrams percent at 1:05 a.m.;

d) a 160 lb male would have to consume a minimum of 7.1 oz of hard liquor or 4.6 cans of beer to have a BAC of 80 milligrams percent at 10:30 p.m. and a BAC of 188 milligrams percent at 1:05 a.m. or 7 oz of hard liquor or 4.5 cans of beer to have a BAC of 185 milligrams percent at 1:05 a.m.;

e) a 140 lb male would have to consume a minimum of 6.2 oz of hard liquor or 4 cans of beer to have a BAC of 80 milligrams percent at 10:30 p.m. and a BAC of 188 milligrams percent at 1:05 a.m. or 6.1 oz of hard liquor or 3.9 cans of beer to have a BAC of 185 milligrams percent at 1:05 a.m.;

f) a 240 lb male would have to consume a minimum of 10.7 oz of hard liquor or 6.9 cans of beer to have a BAC of 80 milligrams percent at 10:30 p.m. and a BAC of 188 milligrams percent at 1:05 a.m. or 10.5 oz of hard liquor or 6.7 cans of beer to have a BAC of 185 milligrams percent at 1:05 a.m. [ 57 ] In all of these cases, Dr. Cherlet said that the alcohol would have to be consumed either in a bolus fashion within five minutes prior to the accident or after the time of the collision. [ 58 ] Defence counsel took issue with the Crown’s evidence in four respects:

a) the Crown has not proven continuity of the blood samples purportedly taken from the accused at Royal University Hospital;

b) there is no evidence before the Court as to how the hospital tested the accused’s blood therefore the Court cannot be satisfied as to theaccuracy of the blood ethanol result contained in the hospital laboratory records;

c) the Certificate of Analyst does not conform to the requirements in

section 258 of the Criminal Code; and

d) the Crown has not proven beyond a reasonable doubt that no large quantity of alcohol was consumed immediately prior to the accident(that is, no bolus drinking) or that no alcohol consumption took place after the accident. Continuity of the blood samples [59] It was the Defence position that there was no evidence tendered by the Crown that the phlebotomist took any blood from theaccused or if he did, what was done with that blood. Without any evidence on this point, the Defence argues that I cannot be satisfiedthat the hospital or Ms.

Booker analyzed the accused’s blood and their respective results are meaningless. [60] The evidence confirms that Constable Neufeld remained with the accused in the hospital examining room except when x-rayswere taken and the phlebotomist attended to take blood from the accused. In those instances, Constable Neufeld stepped out of the roomand waited outside. As a result, he did not see the actual x-rays being taken or blood being drawn from the accused. [61] According to Dr.

Cload the accused arrived just before 1:00 a.m. and presented with some rather serious injuries including afractured pelvis, a dislocated hip, a fractured ankle and a minor head injury. Dr. Cload did not recall being present when blood was beingtaken from the accused but was confident that a laboratory technician, known as a phlebotomist, took blood from the accused as that wasprotocol in the Emergency Department if a patient had a significant trauma like the accused had. In order to treat that person properly,Dr. Cload said you must know what is in their blood.

After the phlebotomist takes blood from someone the standard procedure is thatthe phlebotomist takes the samples to the hospital laboratory for testing. [62] This is all that I heard on blood being taken from the accused and what happened to it. Neither the phlebotomist whoattended on the accused nor anyone from the hospital laboratory was called to testify as to whether blood was taken from the accusedand if so, what happened to it. [63] In R. v. Adam, [2006] B.C.J.

No. 2170 (B.C.S.C.), Romilly, J. said: [15] Undoubtedly then, continuity of possession of the substance from the accused to the law enforcement officer to the analyst iscrucial. However, Canadian case law makes it clear that proof of continuity is not a legal requirement and that gaps in continuity are notfatal to the Crown’s case unless they raise a reasonable doubt about the exhibits’ integrity. See R. v. Oracheski, supra; R. v. Dawdy,supra; R. v. DeGraaf (1981), (BC CA), 60 C.C.C. (2d) 315 (B.C.C.A.); and R. v.

Taylor (1988), (NB KB), 93 N.B.R. (2d) 246 (N.B.Q.B.) These cases establish that it is not incumbent on the Crown to show detailed continuity of thelocation and handling of the exhibits from the time of their seizure by law enforcement officers to their deposit with analysts. . . . . . . . [18] Where the evidence respecting continuity prior to analysis is not continuous, and on the whole of the evidence there is a reasonableapprehension that the exhibit is not in the same condition as it was at the time of seizure, the courts have generally resolved any doubt onthe issue in the favour of the accused. See R. v.

Laborgne, (MB KB), [1924] 2 W.W.R. 610 (Man.Co.Ct.); Rapchalk v.Atlas Assurance Co. Ltd. (1967), (SK KB), 63 D.L.R. (2d) 612 (Sask. Q.B.) (“Rapchalk”). Nonetheless, such doubtsmust be based on reasonable grounds arising from the evidence: R. v. Kolkiczka, (MB KB), [1933] 1 W.W.R. 299(Man.Co.Ct.); R. v. Castell (1973), 34 C.R.N.S. 199 (Ont. C.A.); R. v. Oracheski, supra; R. v. DeGraaf, supra. . . .

[19] In short, there is no specific requirement as to what evidence must be led to establish continuity, or by whom it must be led. Thereis also no specific requirement that every person who may have possession during the chain of transfer should himself or herself giveevidence. If there is a gap in continuity and if the trier of fact is not satisfied beyond a reasonable doubt that substances taken from theaccused were the substances analyzed as being prohibited, then the evidence may still be admissible but this would affect the weightgiven to the exhibit and the evidence: R. v.

Andrade (1985), (ON CA), 6 O.A.C. 345, 18 C.C.C. (3d) 41 (Ont. C.A.) . .. . [64] While it would have been helpful to the Court to hear from the phlebotomist or from someone in the hospital laboratory, it isnot fatal in this instance to the Crown’s case. Tendered as business records under

section 30 of the Canada Evidence Act was anAffidavit from Diane Haugrud, the manager of the laboratory at Royal University Hospital with four pages of hospital records appendedto her Affidavit. Not only does she state that these laboratory records are maintained in the usual and ordinary course of hospitalbusiness and that they are accurate, but she also says that page 4 of the records pertain to the testing performed by the hospital forethanol on the blood collected from the accused and that the dates and times the blood was collected and received by the hospitallaboratory are set forth therein.

This was not challenged by the Defence as being inaccurate. Upon review of these records it is clearthat they are records for the accused, Clinton Skorlatowski, that Dr. Cload is the attending physician and the person who requested thetests and that the blood collected from the accused for all testing, including testing for ethanol, was collected on “22/12/11 at 01:05” andreceived by the lab at “22/12/11 at 01:19”. [65] Considering all of this evidence, I am satisfied beyond a reasonable doubt that on December 22, 2011, a phlebotomist attendedthe accused’s hospital room at the request of Dr.

Cload and took blood from the accused. When the phlebotomist came in to take theblood work, both Constable Neufeld and Dr. Cload left the examining room. I accept that the blood was taken from the accused at 1:05a.m. shortly after he arrived at Royal University Hospital by ambulance. Given that the medical professionals would need to know whatis in the accused’s blood so that they can plot his course of treatment, it makes eminent sense that this occurred as soon as possible afterthe accused arrived at the hospital.

I infer that the phlebotomist delivered the accused’s blood samples to the laboratory at the hospitalas per protocol and that the laboratory received the samples at 1:19 a.m. that same date and performed a number of tests on this bloodthereafter, including testing it for ethanol. There is nothing in the evidence that leaves me with a doubt that blood was taken from theaccused, that the blood the hospital tested was the accused’s blood and that the blood sample that Constable Neufeld seized and sent tothe Forensic Laboratory for testing was the accused’s blood.

Continuity has been satisfactorily established and, as a result, I dismiss theDefence argument on this point. Accuracy of blood ethanol result in laboratory report [66] The Defence argued that the Crown called no evidence to establish that the machines used by the hospital laboratory to testfor ethanol in blood were capable of performing that function and if operated properly would provide an accurate and reliable result. Inhis view, in the absence of such evidence , the results of the hospital analysis lacked any evidentiary value. He relied on the case of R. v.Bird, [1989] S.J.

No. 327 (Sask.C.A.) as support for his position. [67] Had the Crown just tried to rely on the accused’s hospital records seized by the police without anything more to prove thealcohol content in the accused’s blood at 1:05 a.m., December 22, 2011, I would have agreed with the Defence and found this evidencenot to be admissible.

Numerous cases have held that in order for expert evidence derived from scientific instruments to be admissible,the evidence must establish that the machine was capable of making the required measurements or producing the required data, that themachine was in good working order at the relevant time and that it was properly used. See R. v. Bird, supra, at page 8; R. v. Redmond, (ON CA), [1990] O.J. No. 143 (Ont. C.A.) at page 7; R.v. Gibson, (SK KB), [1998] S.J. No. 677(Sask.Q.B.) at paragraph 9; R. v. Delorey, 2004 NSCA 95 , [2004] N.S.J. No. 297 (N.S.C.A.) at paragraphs 17 to 24; R. v.McCarthy, [2013] O.J.

No. 467 (Ont.S.C.J.) at paragraph 22. In the present case, the Crown did not call anyone from the hospitallaboratory or present any other evidence to establish what machine was used to test the accused’s blood at the hospital and whether itwas capable of analyzing for the existence of ethanol, whether it was being operated properly and whether it was working properly at thetime the accused’s blood was being tested.

Machines are machines and sometimes they do not work the way they are supposed to work.People are not infallible either and sometimes they do not operate machines according to how they must be operated. Thesepreconditions are safeguards to give the trier of fact a level of comfort that the results provided by the machine are accurate and reliable.

Since there was a complete absence of this evidence in this case, the results of the hospital records seized by the police, without more,lack any evidentiary value. [68] However, this was not the only way the Crown attempted to have the accused’s hospital records placed before the Court. Anticipating the possibility of a problem, the Crown also sought to tender these same hospital records as business records pursuant tosection 30 of the Canada Evidence Act. The Crown has the option of entering evidence in a trial under

section 30 even though there may

be other methods of having that same evidence admitted. As long as the prerequisites for admissibility created by

section 30 are met attrial, business records can be admitted as prima facie evidence of the truth of what is asserted in the records to meet the requirement ofproof beyond a reasonable doubt in a criminal trial. The fact that it is prima facie does not however mean that it is conclusive. A trialjudge may conclude that he or she has a reasonable doubt that the records do not prove the fact they are tendered to prove based on otherevidence in the trial, cross examination or permitted inferences drawn from the evidence.

Section 30 does not shift the evidentiaryburden to the defence. Instead, it simply requires the defence to adduce evidence raising a reasonable doubt if there is nothing whichdoes so in the evidence adduced by the Crown. See R. v. Smith, [2011] A.J. No. 520 (Alta.C.A.) at paragraphs 13 to 36. [69] The prerequisites to admissibility under

section 30 are that the documents must fall within the definition of “business” and“record” found in section 30(12) and must have been made in the usual and ordinary course of business where oral evidence in respect ofthat matter would be admissible in a legal proceeding. Short of these conditions there is nothing in

section 30 that requires viva voce orother evidence to bolster the admissibility of a business record. This is so because reliability is found in the business reliance on thedocuments. See the Hon. S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds., McWilliams’ Canadian Criminal Evidence, 4thed. looseleaf (Toronto: Thomson Reuters Canada Limited, 2014) vol. 1 at paragraph 7:130:20:30; R. v. Smith, supra, at paragraphs 16 to24.

In this way, the concerns expressed by the majority in Bird, supra, are alleviated. [70] In this particular case, the Crown sought to have admitted into evidence a copy of the results of the testing done by thelaboratory at Royal University Hospital on the accused’s blood taken from him on December 22, 2011 at 1:05 a.m.

Section 30(1)contemplates the original record being tendered however section 30(3) allows a copy of the record to be admissible in evidence provided there is both an Affidavit stating why it is not possible or reasonably practicable to produce the original record and an Affidavit that setsout the source from which the copy was made.

The accused’s hospital records were attached to two Affidavits, both sworn by DianeHaugrud, the Laboratory Manager at Royal University Hospital, wherein she attests that it is not reasonably practicable to produce theoriginals of the accused’s blood results for this date because they are stored on an electronic data base and that retention of the originalrecords are required for any future care of the accused.

She verifies as well that she printed copies of these records from the hospitallaboratory’s electronic data base and that they are true and accurate copies of the accused’s blood work results for December 22, 2011. [71] The prerequisites in section 30(1) can be proven by viva voce evidence or an affidavit from a person who is in a position totestify to the necessary requirements of the section. In this case, Ms.

Haugrud, in her Affidavits, also attests that these records aremaintained by the hospital in the usual and ordinary course of their business of treating patients, that the records were created by aperson who at the time of the making of the record had knowledge of the circumstances or events set out in the record and was under aduty to accurately record the circumstances or events at or near the times they occurred and she believes these records to be accurate. [72] There is evidence that the ambulance transporting the accused arrived at Royal University Hospital at 12:52 a.m. December22, 2011. Dr.

Cload testified that he was the attending emergency room doctor at that time and that he began treating the accused shortlybefore 1:00 a.m. Given the injuries he noted, Dr. Cload ordered blood work because he needed to know what was in the accused’s bloodin order to treat him properly. Dr.

Cload did not recall the specific time that the phlebotomist took blood from the accused pursuant tohis request but the hospital records indicate that the blood tested was taken from the accused at 1:05 a.m., received by the laboratory at1:19 a.m., that the patient’s name was Clinton Skorlatowski and that the attending physician was Dr. Cload. [73] Looking at the whole of the evidence, I am satisfied that the accused’s hospital records meet the definition set forth in section30(12) for business and record.

They are documents in which information is recorded and stored by a business carried on in Canada forprofit or otherwise. Other cases have found hospital records to meet the definition of business records as well. See R. v. Malko (1994), (MB CA), 92 Man. R. (2d) 194 (Man,C.A.); R. v. L.(C.) (1999) (ON CA), 138 C.C.C. (3d) 356(Ont.C.A.); R. v. Smith, supra. The information in these hospital records was used by the hospital in the treatment and care of theaccused. Ms. Haugrud’s affidavit and Dr.

Cload’s testimony confirms that these records are made in the usual and ordinary course ofbusiness at the hospital for that very reason. The laboratory technician who tested the blood could have been called to give oral evidenceabout what he or she did when they received the accused’s blood in the early morning hours of December 22, 2011 and the results thatthey obtained and that evidence would have been admissible. [74] The Defence called no evidence in this case, did not ask for leave to cross examine Ms.

Haugrud and there is nothing in theCrown evidence or in Defence cross examination of the Crown witnesses that leaves me with a reasonable doubt as to the accuracy orreliability of these hospital records. As such, I am satisfied beyond a reasonable doubt that the hospital records of the accused satisfythe criteria for admissibility under

section 30 of the Canada Evidence Act and that the information contained therein, specifically that thelevel of ethanol in the accused’s blood taken at 1:05 a.m. on December 22, 2011 was 51 millimoles per litre of blood, is prima facieproof of that fact despite the absence of any evidence as to how the hospital laboratory tested the accused’s blood.

Section 258 and the Admissibility of the Certificate of Analyst [75] Defence argued that the Certificate of Analyst prepared by Richelle Booker of the Forensic Laboratory is not admissible inthis case because the conditions set forth in section 258(1)(

d) of the Criminal Code necessary for the admissibility of the Certificate havenot been established. The Crown’s response was that the accused’s blood samples were seized under warrant and not a demand madeunder section 254(3) of the Criminal Code and in any event, they were not relying on the presumption in

section 258 so the section258(1)(

d) prerequisites to the admissibility of the Certificate do not apply. [76] In R. v. Egger, (SCC), [1993] 2 S.C.R. 451 (S.C.C.), Mr. Justice Sopinka addressed the issue of the properinterpretation of section 258(1)(d)(

i) of the Criminal Code. In the course of discussing that issue, he clarified the relationship betweenthe availability of the presumption and the admissibility of the Certificate of Analyst and the Certificate of Qualified Technician. Atparagraph 14, he said: [14] As I observed when setting out the relevant statutory provisions above, the availability of the presumption and the admissibility ofthe CA and CQT as evidence are two separate questions. The admissibility of the CA and CQT does not depend on meeting theconditions for the presumption.

Unfortunately, there appears to be some confusion of the two issues, and this is particularly apparentin the decisions below in the present case . . . .

Admissibility of the certificates of analysis and qualified technician, on the contrary, isgoverned by section 258(7), which says that they are admissible if reasonable notice of the intent to produce them and copies of them aregiven to the accused, and section 258(1)(h)(iii)(CQT) and 258(1)(i)(CA) which say that the certificates are evidence of the factualallegations therein without formal proof of the authenticity of the documents. (Highlights are mine.) [77] While the facts in Egger involved a blood sample taken from the accused pursuant to a section 254(3) demand and theresulting certificates prepared under sections 258(1)(h)(iii) and section 258(1)(i), Mr.

Justice Sopinka’s comments are analogous to thepresent case. The Crown does not have to comply with the conditions set out in section 258(1)(

d) in order for the Certificate of Analystprepared by Ms. Booker to be admissible. In order for the Certificate of Analyst to be admissible in this case the Crown need onlyestablish that they complied with section 258(7), that is, that they gave Defence reasonable notice of their intention to produce theCertificate at trial and that they provided a copy of the Certificate to the Defence. When the Crown sought to have the Certificate ofAnalyst entered as an exhibit in this case, I asked Defence counsel if they had any objection and they advised that they did not.

Inclosing argument, Defence counsel did not suggest that he did not receive notice of the Crown’s intention to produce the Certificate attrial or a copy of the Certificate. While there was no direct evidence before me that the Crown provided notice of their intention toproduce the Certificate to the Defence and gave Defence a copy of it, I infer that both of those things occurred. I dismiss this Defenceargument and find that the Certificate of Analyst of Richelle Booker is admissible in this case. Drinking before and after the accident [78] Both Dr.

Cherlet’s read back estimates and her opinion on how much the accused would have to drink to have a blood alcohollevel of .08 at the time of the accused’s driving and readings equivalent to the hospital analysis and Ms. Booker’s analysis at 1:05 a.m.are dependent on a number of assumptions. It was the Defence position that the Crown has not proven some of these underlyingassumptions and as such, Dr. Cherlet’s opinions in these areas should have no probative value. [79] In putting the accused over .08 at the time of driving, Dr.

Cherlet’s read back estimates using both the hospital results and theForensic Laboratory results were based on the following assumptions:

a) the accident occurred at 10:30 p.m. December 21, 2011;

b) at 1:05 a.m. December 22, 2011, the accused’s blood alcohol level was either between .188 and .214 (hospital result) or between.185 and .210 (forensic laboratory result);

c) the peak blood alcohol concentration that the accused would have achieved would have been reached by the time the collisionoccurred, that is, no bolus drinking;

d) no alcohol was consumed by the accused after the time of the collision and prior to the time of the blood sample being taken; and

e) the accused eliminated alcohol from his body at a rate of 10 to 20 milligrams percent per hour. [ 80 ] Dr. Cherlet said that if the accident occurred at 10:45 p.m. instead of 10:30 p.m., her estimates would be three to five milligrams percent lower and if the accident happened at 11:00 p.m., they would be five to ten milligrams lower. [ 81 ] Defence counsel thoroughly cross examined Dr. Cherlet on her read back opinions as well as the other opinions she presented in her report.

In closing argument, it was his position that before her read back estimates were admissible, the Court had to be satisfied that the assumptions upon which her read back estimates were based were proven by the Crown beyond a reasonable doubt. In his view, the evidence did not establish either her assumption of no bolus drinking or no drinking after the time of the collision. [ 82 ] It goes without saying that a judge can only make a decision in a case based on the evidence adduced in Court at the trial.

A judge can draw reasonable inferences from the evidence in the trial he or she accepts but a judge cannot make assumptions or rely on conjecture to fill in areas that the evidence neglects to address. In this case, of all the witnesses that testified, only Dearle Tilsley and Constable Neufeld had any contact with the accused at the roadside. Mr. Tilsley was driving the bus that was taking the Humboldt Broncos hockey club back to Humboldt after a game in North Battleford. The accused’s truck passed him properly and was not driving erratically.

The accused’s truck was approximately a quarter to a half mile ahead of him when he observed the truck’s brake lights come on and the truck hit the back of a semi trailer. The truck went into the ditch and got hung up in a clump of bushes by a set of railway tracks that ran parallel to the highway. Mr. Tilsley stopped the bus and he and a number of the players and team personnel ran over to the truck. When he got to the truck, he saw a man laying across the steering wheel and the airbag.

Some of the players and the training staff had medical training so he left them to deal with the accused and he returned to his bus to set up flares. He did not notice any signs of impairment nor smell any alcohol but he admitted that he has no sense of smell or taste. I got the impression that Mr. Tilsley did not observe the accused for any length of time and was happy to let others deal with the situation. [ 83 ] The evidence establishes that the accident occurred at or just before 11:00 p.m. on December 21, 2011.

Constable Neufeld was dispatched to the accident at 11:05 p.m. and he arrived on scene at 11:18 p.m. He was the first police officer to get there and he arrived there before the emergency medical personnel or any other first responders. Immediately upon arriving, he spoke to Mr. Tilsley and then he went to the accused’s truck. As he got close to the truck he could smell an odour of beverage alcohol. He noticed a number of hockey players around the truck and one player in the back of the truck stabilizing the driver’s neck in some fashion.

He asked the players if they knew the name of the driver and someone said “Clint”. He was not able to go to the driver’s side of the truck because of the way it was hung up on the embankment. However, he observed the accused pinned in the truck. He asked the accused how he was doing and the accused answered “Not good”. Then he asked the accused if he had had anything to drink that night. At first the accused said “No” but then he said “Just a couple”.

The officer could still smell alcohol around the truck but he could not get close enough to the accused to determine if it was coming from his breath. [ 84 ] Some time prior to attending this accident, Constable Neufeld had received a dispatch about a truck being driven erratically and he had been out patrolling and looking for that truck. The accused’s truck matched the description of the truck that was the subject of this earlier dispatch and when he checked the licence plate of the accused’s truck he noticed that it matched the plate number from the earlier dispatch except for one letter.

After checking the plate and finding out that the truck was registered to the accused, the officer went to the passenger side of the truck. He noticed a very strong odour of alcohol on the passenger’s side as well as some beer cans. Some were crushed. He was there for less than a minute when other police officers and emergency personnel started showing up. As a result he turned his attention to them and directing the investigation. [ 85 ] He took a statement from Mr. Tilsley while the ambulance personnel dealt with the accused.

Once they had removed the accused from the truck they placed him on a spine board and loaded him into the ambulance. Constable Neufeld got into the back of the ambulance and rode with the accused to Royal University Hospital. Over this forty two minute trip, the officer observed the accused but noted no signs of impairment. He did however overhear the accused advise the EMT personnel that he had had a couple of drinks that day but no supper. [ 86 ] At the hospital, Constable Neufeld stood back and observed the accused while the doctor and nurses dealt with him.

He became aware that blood was taken from the accused by a phlebotomist. He did not note any signs of impairment while observing the accused at the hospital. After speaking to the Emergency Room doctor he determined that it would not be possible to make either a blood demand or a breath demand on the accused and as a result, he left.

[87] The only other witness that had any interaction with the accused, albeit not at the roadside, was the Emergency Room doctorat Royal University Hospital, Dr. Cload. Dr. Cload did not appear to have a very good recollection of the accused and perhapsunderstandably so given that some three years had passed from the date he treated the accused until he gave his testimony in this trial. However, he had reviewed the charts and notes he made and was able to give a detailed explanation of the accused’s injuries.

Whenasked if he observed any indicia of alcohol consumption on the accused, he responded that his chart did not reflect any indicia ofimpairment and he had no documentation or recollection of any. [88] In R. v. Abbey, (SCC), [1982] 2 S.C.R. 24 (S.C.C.), the Supreme Court stated that before any weight can begiven to an expert’s opinion, the facts upon which the opinion is based must be found to exist. See also R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852 (S.C.C.) at paragraph 66; R. v. Ginther (1986), (SK CA), 54 Sask. R. 303 (Sask.C.A.); R.v. Clark, [1995] S.J. No. 566 (Sask.Q.B.) at paragraph 46.

It is the responsibility of the party calling the expert to prove the factsunderlying their expert’s opinion including the assumptions upon which the expert relies beyond a reasonable doubt. Failure to do so isfatal to the admissibility of the expert’s opinion. [89] The Crown agreed that they bear the onus of proving no bolus drinking or no drinking after the collision but argued that therehas to be some air of reality to the defence contention that the accused was drinking in his vehicle immediately before or after theaccident. I do not agree. In R. v. Stump, [2011] B.C.J.

No. 929 (B.C.S.C.), Madame Justice Humphries, in discussing the issues of proofin a case in which the Crown assumed no bolus drinking said: [84] Therefore it is not a case of the defence having to raise an air of reality with respect to the defence of “bolus drinking” but of theCrown having to prove that the accused did not drink after 3:00 a.m., the time Mr. Image relied on in order to reach his opinion as to theblood alcohol level at 3:30 a.m., the assumed time of the driving. [90] In R. v.

Paszczenko 2010 ONCA 615, the Ontario Court of Appeal heard appeals in two cases each concerned with the mannerin which the Crown must prove the facts underlying the assumptions upon which expert toxicology reports filed in drinking and drivingcases are based.

In discussing the “no bolus drinking” assumption, the Court concluded that there is “a practical evidentiary burden onthe accused, not to persuade or convince the trier of fact that there was bolus drinking involved, but to point to something in the evidence(either in the Crown’s case or in evidence lead by the Defence) that at least puts the possibility that the accused had engaged in bolusdrinking in play”.

While this seems to me to be just another way of saying that the Defence must raise an air of reality to their contentionthat there was bolus drinking before the Crown has to prove that there was not, perhaps a better way to interpret this comment is that it iscommonsense that people drink at a normal pace and in order for a judge to find otherwise there would have to be some evidence topoint to bolus drinking. [91] However one looks at it, in the present case, there was no evidence that the accused was driving improperly. The evidence isthat Mr.

Tilsley observed the accused pass him in a proper fashion and he was not driving erratically. After passing the bus, the accusedapproached a semi trailer and for some reason braked. He struck the rear end of the semi and was propelled into the ditch. There was noapparent reason for the accident according to Mr. Tilsley however he admitted that he was about a quarter to a half mile behind theaccused when he saw the accident.

There was some evidence that the RCMP had earlier received a complaint of a vehicle that was thesame make and color as the accused’s with a licence plate that was one letter out from the licence plate of the accused’s being drivenerratically. However putting aside whether I am satisfied that the accused’s truck was the truck that was the subject matter of the earliercomplaint, there is no evidence as to when this complaint came in or that the accused was even the driver at the time the truck was beingdriven erratically. [92] Mr. Tilsley immediately stopped his bus to offer assistance.

A number of hockey players, the coaching staff and the trainingstaff went with Mr. Tilsley to offer whatever assistance they could to the occupants of the truck. Mr. Tilsley observed a number ofhockey players around the truck and left them there because they had medical training. He returned to his bus. Constable Neufeldarrived at the accident scene at least 20 minutes after the accident occurred, if not more. When he got there, he noted a number ofhockey players still around the truck and one player in the back of the truck stabilizing the accused’s neck.

The Crown did not call anyof the hockey players to testify in this case as to what occurred at the accused’s truck from the time of the accident until ConstableNeufeld showed up. There is absolutely no evidence as to what occurred over this twenty to thirty minute period. [93] Constable Neufeld noted a strong odour of alcohol coming from the cab of the truck as he approached the passenger side doorand he saw a number of beer cans, some intact, some crushed on the passenger side of the truck.

He did not count them nor did he eversearch the truck to determine if there was any more beverage alcohol in the truck and he did not testify as to where in the passenger side

of the truck he saw the beer cans. [ 94 ] Neither Mr. Tilsley, Constable Neufeld or Dr. Cload were able to observe any signs or indicia of impairment on the accused.

While there was evidence from Constable Neufeld that there was a strong smell of alcohol around the accused’s truck and in the cab of the truck, there was no evidence of any smell of alcohol on the accused’s breath, no red bloodshot or glassy eyes, no flushed face, no slurred speech and no other indication of any signs of impairment normally seen in intoxicated individuals. [ 95 ] Considering all this evidence, or lack thereof, I cannot conclude that the accused was not bolus drinking or was not drinking immediately after the accident.

As a matter of fact, taking into account that the accused was not driving erratically and that he was not exhibiting any signs of intoxication when driving or after the accident, provides some evidence of bolus drinking or drinking after the accident.

The effect of bolus drinking or drinking after the accident is as stated in Paszczenko , supra , at paragraph 39 , that is, to create a situation where the accused driver’s BAC may have been at or below 80 milligrams of alcohol in 100 millilitres of blood at the time of the incident yet still register over .08 at a later point in time because it was still rising at the time of the incident. If the accused’s blood alcohol was .08 or lower at the time of the accident, I would not expect to see many signs of impairment, if any at all. However, if the accused’s blood alcohol was more than twice the legal limit as Dr.

Cherlet estimated it would be if there was no bolus drinking or drinking after the accident, then I would expect to see some rather obvious indicia of impairment. But here there were none. [ 96 ] Dr. Cherlet was also asked to estimate how much alcohol a person would have to consume to have a reading of .08 at the time of the accident and a reading of either .188 or .185 at 1:05 a.m. For the purposes of this calculation, she assumed that the accident occurred at 10:30 p.m.

She also indicated that her calculations would be dependent on the gender and weight of the person and she required this information for her estimates to be accurate. She assumed a male person and then proceeded to give estimates for weights beginning at 140 pounds and increasing in twenty pound increments up to and including 240 pounds.

Without repeating all of her estimates, she established a range of 6.1 to 6.2 ounces of hard liquor (40% alcohol by volume) or 3.9 to 4.0 cans of beer in a 140 pound male right up to 10.5 to 10.7 ounces of hard liquor or 6.7 to 6.9 cans of beer in a 240 pound male. [ 97 ] Unfortunately, much like Dr. Cherlet’s read back estimates, some of the assumptions these calculations are based on have not been proven beyond a reasonable doubt either. Firstly, all of these estimates are based on the accident occurring at 10:30 p.m.

I have already concluded that the evidence shows that the accident occurred at or just before 11:00 p.m. Dr. Cherlet did not do these calculations assuming the accident occurred at 11:00 p.m. or just before 11:00 p.m. nor did she advise as to how that half an hour time difference would effect the calculations that she did do. [ 98 ] Secondly, there is no evidence before me as to what the accused weighed on December 21, 2011. In Dr. Cherlet’s report, there is an indication on the first page that the subject in this case is a 220 pound male however she did not testify as to where this information came from.

None of the other witnesses testified as to the accused’s weight either. As a result, to select one weight and its corresponding range over another would be to speculate and that is incorrect for me to do. [ 99 ] In deciding whether the Crown has proven that there was no bolus drinking or that there was no drinking after the accident, I must consider all of the evidence. Here there was beer in the accused’s truck. I do not know how much beer there was but there was a strong odour of alcohol in and around the truck.

Despite this, the accused was showing no observable signs of impairment immediately after the accident. Not one. There was no evidence as to where the accused was before the accident or what he was doing. There was no evidence what the accused did in the twenty to thirty minutes from the time of the accident to the time that Constable Neufeld showed up.

There was no evidence as to how much the accused weighed at the time of the accident and in any event, there was no evidence how much he would have had to drink five minutes before 11:00 p.m. or after 11:00 p.m. to have a blood alcohol concentration of .08 at the time of the accident and the reading that he did have at 1:05 a.m. For me to conclude that the accused was not bolus drinking just before the accident or not drinking after the accident on the evidence would involve speculation and conjecture and that is not appropriate.

Accordingly, the Crown has not proven the assumption of no bolus drinking nor the assumption of no drinking after the accident upon which their expert’s read back estimates are based nor have they established how much alcohol the accused would have had to consume just before the accident or after the accident to have a blood alcohol concentration of .08 at the time of the accident and a reading of either .185 or .188 at 1:05 a.m. As such, Dr. Cherlet’s opinion on these matters has no probative value.

Her opinion not being admissible, there is no evidence that the accused’s blood alcohol concentration exceeded .08 at the time of driving on any of the three scenarios argued by the Crown.

d) Has the Crown proven beyond a reasonable doubt that the accused was driving his vehicle while his ability to do so was impaired?

[100] The test to convict an accused of impaired driving was set out in R. v. Stellato, (ON CA), [1993] O.J. No. 18(Ont.C.A.) aff’d (SCC), [1994] S.C.J. No. 51 (S.C.C.). A trial judge must be satisfied beyond a reasonable doubt that anaccused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence establishes any degree of impairmentfrom slight to great, the offence is made out. [101] In this case, Constable Neufeld smelled a strong odour of alcohol around the truck and in the passenger side of the truck and hefound a number of beer cans on the passenger side of the truck.

However, he was never able to confirm any odour of alcohol on theaccused’s breath nor did he observe any signs of impairment in the accused either at the accident scene, travelling in the ambulance or atthe hospital. None of the other witnesses noticed any indicia of impairment in the accused either.

Nobody saw the accused drivingerratically. [102] The accused told Constable Neufeld that he had had just a couple but the officer did not ask the accused any questions aboutwhen he had been drinking or what he had been drinking and the accused did not offer this information up. [103] Constable Neufeld had received an earlier dispatch about a vehicle

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