Her Majesty the Queen - v. -, 2011 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 046 Date: March 21, 2011 Information: 24335361 Location: Moose Jaw, SK _____________________________________________________________________________ Between: Her Majesty the Queen - and - Hal M. McEwen Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. David Kreklewich For the Accused JUDGMENT D.J. KOVATCH , J Background [ 1 ] The accused is charged with impaired driving and driving while his blood alcohol content exceeded .08 percent. In argument, Mr. Hendrickson conceded that there was insufficient evidence for a conviction of impaired driving. Accordingly, that charge was dismissed.

[ 2 ] Following the arrest of Mr. McEwen, he was taken to the RCMP Assiniboia Detachment, where he provided two breath samples in the intoxilyzer. However, these samples were obtained more than two hours after the accused was driving. The Crown conceded that it cannot rely upon the presumption contained in s. 258 of the Criminal Code . The Crown led expert evidence as to the accused’s blood alcohol level at the time of the driving. The issue is whether the Crown has proved its case beyond a reasonable doubt. The Evidence [ 3 ] Cst.

Hutchinson testified that he has been with the RCMP for approximately thirteen and a half years, and is currently stationed at Bengough, Saskatchewan. At approximately 11:15 p.m. on September 1, 2009, he was on routine patrol near Bengough, Saskatchewan. At that time, he noticed a green truck being operated without its lights on. He pulled over the truck. The accused, Hal McEwen, was the lone occupant and operator of the truck. [ 4 ] The officer conceded that there was nothing unusual about the accused’s driving, except for the fact that the lights were not on.

As soon as he began his conversation with the accused, he noted that the accused had glassy eyes, and detected a slight odour of alcohol. The officer asked Mr. McEwen if he had had anything to drink. The accused said he had two beer at the Big Muddy. He stated that his first drink was around 10:00 p.m., and his last drink concluded about fifteen minutes ago. With this information, the officer concluded he had a reasonable suspicion that the accused had alcohol in his body.

The officer made the ASD demand, and asked that the accused accompany him to the police vehicle. [ 5 ] Once inside the police vehicle, the ASD test was administered and a fail result was achieved. The officer immediately placed the accused under arrest, advised him of his rights, made the standard intoxilyzer demand, and gave the police warning. [ 6 ] The officer testified that the accused’s truck was not parked at a good spot on the road. He asked the accused for permission to move the truck onto a nearby approach where it would be well off the roadway. The accused gave his permission to do this.

The officer then moved the truck to the approach and searched the vehicle. He located an unopened but cold bottle of beer. The officer estimated it took fifteen to twenty minutes for him to move the accused’s vehicle and complete the search of the vehicle. [ 7 ] Cst. Hutchinson radioed the RCMP Detachment at Assiniboia to confirm that a technician would be available to conduct the intoxilyzer test on arrival. He then drove the accused to the Assiniboia Detachment. [ 8 ] When Cst. Hutchinson advised the accused of his Charter rights, Mr. McEwen indicated he would like to speak to a lawyer. Cst.

Hutchinson advised he would be allowed to do that as soon as they arrived back at the Assiniboia Detachment. Once back at the detachment, he immediately took the accused to a phone room, to allow this consultation. The constable dialled the phone and then handed the phone over to the accused. First they attempted to contact a Regina lawyer named Sterling McLean. Mr. McLean did not answer so the accused left a message on Mr. McLean’s answering machine. He then attempted to contact an Assiniboia lawyer, Mr. Tom Mountain. Mr. Mountain did not answer the phone and so the accused left a message on Mr.

Mountain’s answering machine. The officer then suggested that they try Legal Aid. They were able to reach a lawyer, Mr. Steve Osborne, through the Legal Aid duty counsel system. The accused got some advice in private from Mr. Osborne. [ 9 ] Meanwhile, while the accused was speaking to Mr. Osborne, the Regina lawyer, Sterling McLean, called back. Cst. Hutchinson advised Mr. McEwen of this. Another call was placed to Mr. McLean and at this time, the accused was able to receive legal advice from Mr.

McLean. [ 10 ] I have gone through this in some detail to make two points: number one, the officer did everything right in allowing the accused to make the phone calls and receive appropriate legal advice; and number two, it took approximately one half hour from the time the two men arrived at the Assiniboia RCMP Detachment until the phone calls were concluded. This, in part, contributed to the length of time between the driving and the administration of the breath tests. [ 11 ] At 1:26 a.m., on the morning of September 2, 2009, the accused provided his first sample of breath.

It registered 110 mg of alcohol per 100 ml of blood. At 1:49 a.m., a second sample was provided. It also registered 110 mg of alcohol per 100 ml of blood.

[ 12 ] At the detachment, when the tests were being taken, Cst. Hutchinson completed an intake form regarding the drinking. He was examined and cross-examined regarding the completion of this form. He referred to the form and advised of the questions he asked and the responses that he obtained from the accused. He was advised that the accused was not diabetic or on any medication. Further, that the accused had his last meal at approximately 7:30 p.m. He was advised that the accused started his last drink at approximately 10:45 p.m. and completed that drink at 11:00 p.m.

He was advised that the accused consumed six bottles of Coors Light, evenly spaced, between approximately 10:00 and 11:00 p.m. Further, that the accused had a weight of 185 lbs or 84 kgs. [ 13 ] Ms. Richelle Booker gave expert evidence for the Crown. She has a Master of Science degree and is employed with the RCMP Toxicology Services Section. She regularly provides expert evidence on the operation of breath testing equipment and estimates the concentration of alcohol in the blood of an individual. [ 14 ] She was given the following hypothetical facts: we have an adult male weighing 84 kgs.

According to him, he consumed six Coors Light, evenly spaced, starting at approximately 10:00 p.m., with his last drink being consumed between 10:45 and 11:00 p.m. He was driving his vehicle at 11:16 p.m., at which time he was stopped. He failed the ASD test at 11:25 p.m. He provided breath samples in the intoxilyzer at 1:25 a.m. and 1:49 a.m., both registering 110 mg of alcohol per 100 ml of blood. She was asked to estimate the accused’s blood alcohol level at 11:16 p.m., being the time of driving. [ 15 ] She testified that there are forward and backward methods of doing these calculations.

The forward method involves taking an individual’s evidence of his drinking pattern, and then calculating the blood alcohol level shortly after the conclusion of drinking. The backward method involves taking known blood alcohol levels at a particular time and working backward to the time of driving. She testified that she much prefers the backward approach as evidence of an individual’s drinking pattern is often unreliable. If you have this unreliable starting point, all of the following analysis and calculations may be wrong.

By contrast, the backward approach uses the known intoxilyzer readings as the starting point. This is good scientific evidence and provides a good and accurate starting point. [ 16 ] In this case she assumed there was no bolus consumption, as the evidence was that the drinks were evenly spaced. She assumed that the alcohol would be almost fully absorbed into the blood stream by 11:16 p.m., the time of failure of the ASD test. This was based upon the view that alcohol is generally absorbed within the blood stream within about thirty minutes of consumption.

She used the standard elimination rate of 10 to 20 mgs of alcohol per hour. This is the standard rate of elimination, as established in many studies and applicable to the vast majority of the population. Based upon these assumptions, she estimated that the accused had a blood alcohol level of 122 to 144 mg of alcohol per 100 ml of blood at 11:16 p.m., the time of driving. [ 17 ] She also testified that the ASD machine is calculated to register a fail when the blood alcohol level is at 100 mg of alcohol per 100 ml of blood, or greater.

The ASD fail registered by the accused at 11:25 p.m. was consistent with her estimates of blood alcohol levels at the time of driving. [ 18 ] Under cross-examination by Mr. Kreklewich, she agreed that she only did the backward method of calculation. He asked her to do the forward method of calculation, based upon the accused having consumed six Coors Light between 10:00 p.m. and 11:00 p.m. She did the forward calculation and confirmed that based upon this drinking pattern, Mr. McEwen’s blood alcohol level should have been under .08 at the time of driving, being 11:16 p.m. She agreed with Mr.

Kreklewich that the rate of absorption of alcohol into the blood stream can vary significantly from individual to individual. She agreed that there is no way to measure an individual’s rate of absorption. Mr. Kreklewich and the witness disagreed and argued as to whether the alcohol consumed by Mr. McEwen would have been almost fully absorbed by the time of driving. [ 19 ] The accused did not testify. The Defence did call Dr. Rockerbie to give expert evidence. He is a doctor of pharmacology and a retired physician. He has very frequently given expert evidence estimating the blood alcohol levels of individuals.

He did a forward estimate based upon the accused having consumed six bottles of Coors Light between 10:00 p.m. and 11:00 p.m. According to his calculations, the accused had a blood alcohol level of 36 to 49 mgs of alcohol per 100 ml of blood at 11:16 p.m. In this respect, his evidence is very similar to Ms. Booker’s. They differ however as to whether the backward or forward calculations are preferable. Dr. Rockerbie stated that backward calculations have been shown to be unreliable and often result in an overestimate of the blood alcohol level.

He said backward calculations are based upon several assumptions including a valid and accurate reading as a starting point, and complete absorption of the alcohol into the blood stream at the time of driving. In my view he was very argumentative with counsel.

The Arguments [20] The Crown agreed it could not rely upon the presumption contained in s. 258 of the Criminal Code. It argued that theevidence of Cst. Hutchinson and Richelle Booker, taken together, established beyond a reasonable doubt that the accused’s blood alcohollevel exceeded .08 at the time of driving. The Defence argued that there must be a reasonable doubt as to whether the accused’s bloodalcohol level exceeded .08 at the time of driving. Analysis [21] The Crown’s evidence puts forward a strong prima facie case. There is nothing to indicate any inaccuracy in the intoxilyzerreadings that were taken.

The evidence of Richelle Booker is in a form and standard that has been admitted and relied upon in manyother cases. She assumed that “almost all” of the alcohol had been absorbed into the blood stream because alcohol is quickly absorbed,generally within thirty to forty-five minutes. Mr. Kreklewich argued with this and said she needed to test for and estimate the level ofabsorption. I don’t agree. In my quick review of some of the cases, seldom is there expert evidence on the actual rate of absorption. R.v. Fox, 2003 SKCA 79 is an example where an expert estimated the rate of absorption. In R. v.

Doell, 2007 SKCA 264; R. v. Lindholm,2006 SKPC 70; R. v. Bray, 2006 SKPC 83, and R. v. Fafard (2 April 2008), Moose Jaw Information # 24312222 (Sask. Prov. Ct.), therewas no estimate of the actual rate of absorption. In a number of cases, as here, the expert assumes there is almost full absorption. As Iunderstand matters the reason for this assumption is that there is a general agreement in the scientific community that alcohol is quitequickly absorbed into the blood stream. As a result, unless there is evidence of bolus drinking, this assumption in applicable andaccurate. [22] Ms.

Booker also relied upon the assumption of an elimination rate between 10 and 20 mg of alcohol per 100 ml of blood perhour. This is the range of elimination rates generally accepted by the scientific community. R. v. Pasczenko, 2010 ONCA 615 states: The second group of authorities holds that the assumptions about elimination rates and the plateau differ from the assumptions regardingdrinking before and after the incident in terms of the proof required, and that the elimination rate and plateau assumptions are matters ofscientific knowledge on which the expert is entitled to rely without further proof by the Crown.

Further: The latter line of jurisprudence represents the proper approach. [23] In addition, at 11:25 p.m., just nine minutes after the time of driving, the accused registered a fail on the ASD machine. Inmy view, the cases of R. v. Fox, [2003] 1 78 C.C.C. (3d) 223 (Sask C.A.) and R. v. Beston, 2006 SKCA 131 , [2006] 289 SaskR. 165 (C.A.) allow me to consider the evidence of the ASD failure and consider it as providing some corroboration to the evidence ofRichelle Booker.

On the basis of my review of the evidence and judicial decisions there is no reason to doubt the evidence of Ms.Booker, and no reason why I would not rely upon it to determine the accused’s blood alcohol level at the time of driving. Simply stated,the Crown has set forth a strong prima facie case. [24] Does the evidence of Dr. Rockerbie then raise a reasonable doubt? Mr. Kreklewich points out that when Richelle Booker didthe forward estimate, based on the accused having consumed six Coors Light, she also estimated the blood alcohol level at being belowthe .08 level.

The problem with this estimate is that it is not based upon any credible evidence that I can accept regarding the accused’sdrinking. The accused did not take the stand. He did not testify that he drank six Coors Light between 10:00 p.m. and 11:00 p.m. In myview, counsel attempted to get this evidence in “through the back door” by cross-examining Cst. Hutchinson. Cst. Hutchinson testifiedthat when they completed the intake form, the accused advised he had six beer evenly spaced between 10:00 and 11:00 p.m.

I am notprepared to accept this evidence as being valid, and I am not prepared to utilize expert opinions based upon this flimsy evidence. Estimates given by accused persons to police, as to the amount they had to drink, tend, in my view, to very self-serving and light. Iwould point out that when the accused was first stopped, he told Cst. Hutchinson that he had two beer at the Big Muddy. This wasclearly inaccurate.

I am not prepared to conclude that the subsequent statement, that he had six beer, was any more accurate. [25] To be clear about this, I am not for a moment suggesting that counsel did anything wrong or unethical by not putting his clientin the witness box. Also, I am not suggesting the accused was obligated to take the stand and give evidence. To the contrary, theaccused had every right to not testify, and counsel had every right to put forward the case the way that he did.

However, with theevidence presented, there is no credible evidence that I can accept as to the amount the accused had to drink and no credible basis to

present a hypothetical to Dr. Rockerbie. In this respect, this case is identical to R. v. Boucher, 2005 SCC 72 , [2005] 3 S.C.R.499. [26] I would also observe that this case is illustrative of Ms. Booker’s rationale for preferring the backward method of estimatingblood alcohol levels. She said the forward method is based upon evidence of a drinking pattern, and such evidence is very unreliable. Unreliable evidence of a drinking pattern provides an unreliable starting point which is then followed by a flawed analysis and inaccurateresults.

I have no doubt that the accused had more than six Coors Light prior to driving his vehicle that evening, and based upon theevidence of Richelle Booker, have no doubt that his blood alcohol level exceeded .08 percent at the time of driving. The accused isconvicted of the charge under s. 253(1)(

b) of the Criminal Code. Dated at Moose Jaw, Saskatchewan, this 21st day of March, 2011. ____________________________________________ D.J. Kovatch, J