R. v. Ellis, 2017 ONCJ 391

CITATION: R. v. Ellis , 2017 ONCJ 391 DATE: May 15, 2017 Information No. 2811 998 15 34842 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JILLIAN ELLIS P R O C E E D I N G S A T R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE MR. JUSTICE M.S. FELIX on Monday, May 15, 2017 at OSHAWA, Ontario APPEARANCES : M. Newell Counsel for the Crown P. Dotsikas Counsel for J. Ellis MONDAY, MAY 15, 2017 R E A S O N S F O R J U D G M E N T

FELIX, J : (Orally) I. Introduction Jillian Ashton Ellis was charged that on the 11th of September 2015 had had care or control of a motor vehicle while impaired by alcohol. The second count is having care or control of a motor vehicle while "Over 80" arising out of an investigation that occurred on September 11, 2015. The trial proceeded before me on March 8th, 2017 and March 10th, 2017. Sentencing was delayed by written submissions and personal circumstances associated to the Defendant.

On September 11, 2015 Police Constable Harding of the Durham Regional Police Service was dispatched to attend Regional Road 57 near Blackstock, Ontario. He was advised via dispatch that there was a stopped motor vehicle at the location, the driver of this vehicle was hysterical, and had been consuming alcohol. He was also advised that there was a concern about the driver running out into traffic. The officer arrived to find three motor vehicles lined up on the side of the road. The Defendant was in the passenger seat of the third vehicle in- line.

She was curled up into a ball on the passenger seat of the vehicle, highly emotional and upset. The Defendant's mother, step-father, and brother were also at the scene. The officer was able to piece together the events that led up to all three vehicles being at the side of the road based on a conversation with the Defendant's step-father and her mother. Of note, only the Defendant's step-father testified at trial. The step-father advised the officer that he had been contacted by his wife to attend the location at the side of the road as there was some sort of trouble between his son and his daughter.

The step-father advised that the Defendant had suffered a serious and unfortunate traumatic past and was struggling with that issue and the abuse of alcohol. He was also concerned about his son as he was a special needs adult with intellectual deficits. The step-father explained that approximately 15 minutes later his spouse arrived. She parked behind the Defendant's vehicle. During the ensuing interaction between the Defendant, her step-father, and her mother, the Defendant became very irate according to her step- father so he called 9-1-1- for fear that she might run out into busy traffic in the area.

The officer in this case of note spoke with the Defendant in a very compassionate and sympathetic manner. As noted earlier she was no longer in care or control of her vehicle. She was balled up in the passenger seat of her mother's vehicle, crying uncontrollably, and was in a hyperventilated state. In a skilled manner the officer in this case deescalated the circumstances such that the Defendant could regain her breath and calm down to a degree. At the time the officer interacted with her there was a strong odour of alcohol emanating from her breath.

The officer asked her if she had been drinking and the Defendant said that she had. He explained that he was going to have to arrest her and take her for a test and the Defendant advised that there was no point as she would blow over. The officer believed that she had been in care or control of her vehicle between 5:20 p.m. and 5:30 p.m. based on the information he received from the step-father. The officer determined that he had much more than a reasonable suspicion and arrested her for impaired care or control.

II. Issues There are two issues to address in this trial. The first issue involves a Charter application alleging that the officer did not have reasonable grounds to arrest the Defendantfor care or control of her motor vehicle while impaired or "over 80". On March 10, 2017 I dismissed the Charter application withreasons to follow. I will provide those reasons now. The second issue involves a consideration of a "bolus drink" defence. The Defendant testified that after leaving hervehicle and before the arrival of the police, she drank a "mikey" of vodka at the side of the road.

For reasons that follow, the Defendant is found not guilty. III. Charter There was a warrantless seizure of breath samples in this case. The Crown has the burden of proving that reasonable grounds exist for the breath sample demand: R. v. Haas, (2005) (ON CA), 76 O.R. (3d) 737 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 423; R. v. Bush 2010 ONCA 554at para. 13. The Defendant bears the onus on the related

Section 9 Charter complaint. The officer formed his grounds based on the information he received via dispatch, the information received from the step-fatherat the scene (and inferentially the Defendant's mother), his own observations of the Defendant, and the Defendant's admission ofhaving consumed alcohol. Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires theofficer to have an honest belief that the suspect committed the offence: R. v. Bernshaw, (SCC), [1995] 1 S.C.R.254 at para. 51. There is no quarrel from the Defendant on this point.

The officer clearly had subjective grounds to believe that the Defendantwas in care or control while impaired by the consumption of alcohol. The officer's belief must be supported by objective facts: R. v. Berlinski, (ON CA), [2001] O.J. No. 377(C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to concludethat there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241at para. 250. I find that the officer had resort to the following factors:

a. He had received information via dispatch that there were concerns that the Defendant was drivinghaving consumed alcohol; b. He received information via dispatch sourced from the step-father's 9-1-1 call. In particular, thestep-father noted his subjective belief that the Defendant was impaired by the consumption of alcoholalbeit he sourced this belief in information provided by his spouse who was not with the Defendant. c.

The officer was advised by the Defendant's step-father and mother that at the scene there had beenan unfortunate traumatic incident in the past that had lead the Defendant to abuse alcohol; d. The step-father had taken the keys out of the ignition. e. The step-father noted the Defendant was in a highly emotional state, was crying, had red eyes, an there was anodour of an alcoholic beverage emanating from her breath. f. The officer subjectively observed physical indicators consistent with alcohol consumption includingblood shot eyes, red eyes, and a very strong odour of alcohol. g.

The Defendant admitted consumption of alcohol. h. He knew based on information from the Defendant's step-father that the Defendant was in care orcontrol of her vehicle between approximately 5:20 and 5:30 p.m. I find that the officer had reasonable grounds to believe that the Defendant was in care or control of her motor vehiclewhile impaired to the Stellato standard: See Bush, at paras. 28, 45-48; R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd (SCC), [1994] 2 S.C.R. 478. IV. Bolus Drinking This case turns on the analysis of the Defendant's evidence.

The evidence overall and the onus with respect to bolusdrinking. In the context of analyzing the constitutionality of Section 258(1)(d.1) the Supreme Court of Canada in St-Onge Lamoureux 2012 SCC para. 90 said this in part: 90.

"...Whereas requiring the accused to show a connection between a malfunction of the instrument and thedetermination that his or her blood alcohol level exceeded .08 imposes an undue burden on the accused, the same is not true of requiring the accused to show that his or her consumption of alcohol shortly before or after the alleged offence was consistent with a blood alcohol level that did not exceed .08 at thetime of the alleged offence. In such situations, the accused does not challenge the test results, butinvokes his or her own unusual behaviour.

It is the accused -- and not the prosecution -- who knows when heor she drank, and how much. What is more, it is also the accused -- and not the prosecution -- who would decide to analyze his or her capacity to absorb and eliminate alcohol, and to adduce evidence in this regard.

I do not therefore consider it unduly onerous to require the person who has this informationand is in a position to tender relevant evidence to show not only that he or she has a "last drink", or drank after being pulled over, but also that the difference resulting from that consumption isrelevant to the determination of his or her guilt or innocence. I should also note that the cases in whichsuch a defence is raised should be rare, and that such a case would denote either significantirresponsibility with regard to public safety or a pathological reaction by the accused. As pointedout in St.

Pierre (para. 106) by L'Heureux-Dube J.

In most cases, moreover, there is good reason to suspect that post-driving drinking (or just the claimthereof) is

an act of mischief intended to thwart police investigators. All such cases, at the very least, involvea significant degree of irresponsibility and a cavalier disregard for the safety of others and the integrity ofthe judicial system. This Court should not encourage or, at the very least, lend legitimacy, to suchbehaviour." The Supreme Court of Canada went on to cite another case called R. v. Darrach for the proposition that\ placing an evidentiary burden on the Defendant is appropriate: 93.

"The protection against self-incrimination does not apply in every case in which the accused risks beingfound guilty if he or she does not present a defence. In R. v. Darrach, 2000 SCC 45, [2000] 2 S.C.R.443, this Court noted "There is an important difference between a burden of proof with regard to anoffence or an evidentiary burden, and the ... need to respond when the Crown establishes a prima facie case, in order to raise a reasonable doubt about it" (para.50).

The need for the accused to testify to raise a doubt after the prosecution has produced evidence -- where, for example, he or she wishes to relyon alibi evidence -- results from a decision over which the Crown has no control. The prosecution isresponsible neither for the choice of the accused nor for the consequences of that choice. The decision to testify in such circumstances is not incompatible with the protection against self- incrimination." 94. "Section 258(1)(d.1) places an evidentiary burden on the accused.

Since the effect of the presumption isthat the prosecution need not prove that the consumption pattern of the accused is irrelevant to the reliability ofthe test results, the onus is on the accused to prove its relevance in order to ensure that those results do not stand as proof of his or her blood alcohol level at the time of the offence. Since the burden results from a statutory presumption and is not based on proven facts, it might at first glance be inferred from Darrach that the evidentiary burden is incompatible with the protection against self-crimination. But this inference does not withstand scrutiny.

The presumption is based onthe usual behaviour of drivers, who do not generally drink a sufficient quantity of alcohol to alter the resultseither just before or just after being pulled over by the police. It is in fact the exceptional behaviour of the accused, not the statutory presumption in the prosecution's favour under Section 258(1)(d.1), thatmakes it necessary for the accused to testify." Finally, the Supreme Court of Canada cited with approval the approach to inference-drawing outlined by the Ontario Court ofAppeal in R. v. Paszczenko and R. v. Lima 2010 ONCA 615 para. 174.

I quote in part: 174 ". . .I note that the Ontario Court of Appeal has ruled in several cases that triers of fact are entitled to draw an inference that"normal people do not consume large quantities of alcohol shortly before, or while, driving". In the absence of evidence putting indoubt the soundness of drawing this inference in a particular case: R. v. Bulman, 2007 ONCA 169, 221 O.A.C.210, at para. 13. See also R. v. Grosse (1996), (ON CA), 29 O.R. (3d) 785; R. v. Hall, 2007 ONCA 8, 83 O.R. (3d)641; R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424.

I would apply the same principle to drinking after drivingbut before the breathalyzer test is administered. Even if it might be said that a reasonable doubtcould exist about drinking between the time of driving and testing, placing an evidentiaryburden on the accused to simply point to evidence capable of raising a doubt on this issue wouldreadily pass the justification requirement under

Section 1 of the Charter.

The fact of post-driving drinking is peculiarly in the knowledge of the accused and it would be unduly onerous to require the prosecution to negate this rather unusual possibility in every case even when it no foundation in theevidence." Again the Supreme Court of Canada cited the approach outlined by the Ontario Court of Appeal with approvaland para. 32 in Paszczenko/Lima captures the analysis: I would frame the rationale for this approach as the imposition of a practical evidentiary burden on theaccused, not to persuade or convince the trier of fact that there was bolus drinking involved, but topoint to something in the evidence (either in the Crown's case or in evidence led by the defence) that at least puts

the possibility that the accused had engaged in bolus drinking in play. The imposition of a practicalevidentiary burden to come forward with evidence is simply another way of explaining the invitation todraw a common sense inference which puts the accused in essentially the same spot if he or she cannot point to some evidence to overcome either hurdle. In my respectful view, this case turns sharply on the application of the "practical evidentiary burden". The Defendant need not persuade me or convince me that there was bolus drinking involved.

She need only point to someevidence within the record that at least puts the possibility that she engaged in bolus drinking in play. Finally I have considered the wise counsel of Chief Justice Dickson in R. v. Morgentaler, (SCC), [1988] 1S.C.R. 30 at page 70: One of the basic tenets of our system of criminal justice is that when Parliament creates a defenceto a criminal charge the defence should not be illusory or so difficult to attain as to be practically illusory.

Having regard to the "practical evidentiary burden" placed upon the Defendant and the consideration of the principles outlinedby the Supreme Court of Canada in W.D., I find that on the evidentiary record in this case she has met the "practical evidentiaryburden". VII. Analysis There are eight relevant factors that I have considered that are relevant to the successful defence in this case: a. The general circumstances and background of the Defendant. b. The general demeanour of the Defendant at the roadside as described by her step-father and the officer. c. The Defendant's statements at the roadside. d.

The Defendant's statements to the police in the breath room. e. The evidence of the Defendant's step-father. f. The absence of evidence from the Defendant's mother. g. The car "clean up" issue. h. The toxicology evidence is corroborative of the Defendant's recount.

A. General Circumstances The evidentiary record supports a general finding that the complainant had experienced traumatic circumstances in the past and one feature of her response was the abuse of alcohol and perhaps even binging with alcohol. One the day of this event her step- father, grandfather, (and inferentially her mother) were concerned about a pattern of behaviour that included the potential abuse of alcohol. This evidence provided some foundation for her bolus consumption. B.

General Demeanour at the Roadside The Defendant was in a highly emotional state at the roadside when her step-father arrived and indeed when the officer arrived. She was balled up on the passenger seat of her mother's vehicle (not the vehicle she had been operating) when the officer first interacted with her. The officer in this case wisely approached the Defendant with tact and care given that he had been advised about the traumatic background circumstances. The officer observed her to be in an extremely emotional state such that it had an impact on her breathing. C.

Roadside Statements The roadside statements concerning alcohol consumption are not admissible to prove the Defendant's guilt. In any event the roadside admission to the officer that she would "blow over" is not inconsistent with the bolus consumption of alcohol particularly when the officer did not specifically question her concerning the timing and consumption of alcohol. D.

Breath Room Statements Notwithstanding the fact that I have listened to the breath room video twice since the trial I have to conclude that the audio is difficult to hear at times because the workings of the instrument and the level of volume associated with statements made by the Defendant. In the end this evidence did not definitively provide me with a foundation to disbelieve the Defendant. The Defendant was cooperative with police and with the officer in the breath room. In Court the Defendant professed little recall of the events within the breath room due to her level of intoxication.

She nonetheless reasonably adopted what she could hear on the video statement. She also reasonably declined to adopt the suggestions from Crown counsel with respect to portions of the video that were unclear to her. Given the quality of this record the apparent inconsistencies were mitigated by the fact that I was unable to review the entire record to my satisfaction. E. The Step-Father's Observations When the Defendant's step-father arrived at the scene he testified that he was occupied with her brother, the attendance at the scene of his spouse, and the phone call to the police.

For the duration of the 9-1-1 call he was positioned at the front of his vehicle. The first vehicle in a line of three. The Defendant testified that she was positioned on the ground behind a vehicle smoking a cigarette and consuming the vodka she obtained from her trunk.

The Defendant's step-father testified that his spouse was focused on the Defendant and dealing with her emotional upset. He was largely focused on his intellectually delayed son who was also having a significant emotional response. The Defendant was found by the officer in the passenger seat of her mother's vehicle. The Defendant's brother was found in the step-father's vehicle. This corroborates the recall of the Defendant's step-father to a degree. The step-father was on the 9-1-1- call for several minutes according to the exhibit that I have listened to again.

He was so focused on his son that he did not even see the police arrest his daughter. In these circumstances it is not inconceivable or impossible that the step-father failed to observe her consumption of alcohol given the dynamic circumstances, the emotional circumstances at the side of the road. F. The Absence of Evidence from the Defendant's Mother The Crown Attorney and defence counsel were given an opportunity to address this issue in writing.

The Court was concerned about the fact that the Defendant's mother was not called as a witness even though one could speculate that she was dealing with the Defendant directly and could have been in a position to observe the consumption of alcohol. The net result of the excellent submissions from both counsel on this issue is that I will decline to draw any particular inference concerning the absence of evidence from the Defendant's mother. I must confess that I was particularly concerned about how this failure could impact the Defendant's burden with respect to bolus drinking.

But in the end, having carefully reviewed the Defendant's testimony and the evidence overall, I conclude that the Defendant did not testify such that I might draw the conclusion that her mother was a witness to her consumption. The effect of this finding is that I will analyze the Defendant's burden without this evidence. G. Clean Up of the Car There is a major inconsistency between the Defendant and her grandfather concerning the timing and circumstances of cleaning the car at the pound.

The important point being that an empty bottle L.C.B.O. bag and receipt were left in the rear of the car that the Defendant was operating. The car was owned by her grandfather. Both parties attended the pound within a week to address the vehicle, claiming the vehicle and retrieval of the vehicle. That the evidence cannot be reconciled does not irrefutably mean that either or both witnesses are lying. The Defendant's grandfather testified that he was in close proximity to the Defendant before she set off that day on her journey to pick up her brother and take him fishing.

It is important to recognize that the Defendant was using his car. The Defendant's grandfather was well aware of her struggles and the abuse of alcohol. This is precisely why he made it his business to interact with her before she left that morning. I do not think the Defendant's grandfather colluded with his granddaughter to lie to this Court. If that was their purpose it would have been relatively easy to ensure that their stories were straight about what went on at the pound. Instead, on a relatively simple point their evidence was in conflict.

Furthermore I accept that the complainant's insight into the relevance of the L.C.B.O. bottle and receipt in the car was gained months later during a meeting with counsel. In the intervening period was consumed by her dedication to getting treatment and counseling. Finally, I find it important that the Defendant's grandfather did not volunteer evidence during direct examination corroborative of the Defendant's bolus drink defence.

But when questioned on this during cross-examination by the Crown Attorney he did corroborate the Defendant's purchase of alcohol and the presence of the empty bottle and L.C.B.O. bag and receipt in the back of his car. Sometimes an inconsistency is relevant, important, and probative of credibility. Sometimes it is not. H. The Toxicology Evidence The expert opinion toxicology report establishes the guilt of the Defendant on the "over 80" but for the application of the bolus drink defence.

There is no controversy in this trial that the toxicologist may rely upon her expertise with respect to conclusions associated to the rate of elimination and allowances for a plateau of up to two hours. What is at issue are the "foundation facts" that there was no consumption of large quantities of alcoholic beverages within 15 minutes of driving and there was no consumption of alcoholic beverages after the incident and before the breath tests: See Paszczenko ; Lima , paras. 21-23 . The toxicologist's evidence in this case was exhaustively examined by both counsel over many hours of testimony.

The better part of a day. There were a multitude of drinking scenario hypotheticals presented. Frankly a dizzying number. The proffered evidence of hyperventilation was not helpful to my determination of the issues and the expert, properly in my view, declined to opine on this issue except in the most general and broad terms. When I go through that large volume of evidence the central important conclusion, (recognized by both counsel during submissions) is that the opinion evidence potentially supports the bolus drinking pattern described by the Defendant at the side of the road.

That is the core conclusion from that evidence. It seems unlikely to me that this particular Defendant, with great respect with her particular make-up, calculated her consumption scenario to line up neatly with expert opinion evidence of the Crown's toxicologist in advance. VIII. Conclusion The application of the law, common sense, and human experience by Judges limits the broad availability of the bolus drink defence. There might be very few situations where this defence will carry the day.

This particular case had some very unique circumstances that did provide a foundation for the defence. In the end I could not say that I categorically disbelieved the Defendant. I believed her grandfather and the toxicology evidence supports her drinking scenario. For the reasons in this judgment, the Defendant is found not guilty of both counts as the consumption of alcohol occurred after she relinquished care or control of the vehicle. She is found not guilty. * * * * * * * * * *