R. v. Macias, 2011 ONCJ 269

Citation: R. v. Macias , 2011 ONCJ 269 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN Ñ AND Ñ ERIKA MACIAS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) M. Newhouse For the Crown M. Rother For the Defendant Heard: November 26, 201 and March 11 and April 1, 2011 REASONS for JUDGEMENT Melvyn Green, J.: A. INTRODUCTION [ 1 ] The defendant, Erika Macias, is charged with driving while impaired and with a legally excessive blood alcohol concentration (BAC). The defendant resists convictions on the latter charge by invoking ss. 8 and 10(

b) of the Charter and the exclusionary remedy afforded by s. 24(2). In addition, the defendant argues that the Crown has here failed to satisfactorily prove that certain statements she made to police officers were, in law, voluntary, thus undermining the reliability of a toxicologistÕs report in circumstances where Òbolus drinkingÓ may be a viable explanation for her elevated BAC.

The defence to the impaired driving charge is that the totality of circumstances fails to establish beyond reasonable doubt that the offence is made out. [ 2 ] The Crown elected to proceed summarily and the evidence was led by way of a blended hearing. Ms. Macias was the only witness for the defence and, by agreement of counsel, only testified with respect to those issues that were, in effect, the subject of an admissibility voir dire (that is, the Charter and voluntariness concerns).

Given my disposition of the charges before me, I intend to review only that evidence bearing on the issues by which I have determined the validity of the charges. B. EVIDENCE (

a) Introduction [ 3 ] The defendant was driving a car in a central west area of Toronto close to 10pm on January 29, 2010. She failed to properly navigate a sharp curve in the road and ended up colliding with a pole. She was first attended by another driver and then by members of Emergency Medical Services (EMS). The police briefly spoke to her when they arrived and before she was transferred to a hospital.

They interviewed her at greater length at the hospital and conducted breathalyzer tests. The defendantÕs blood alcohol concentration (BAC) was found to be in excess of the legal limit. Expert evidence calculated that the defendantÕs BAC levels at the time of the driving accident were also legally elevated. (

b) The Non-Police WitnessesÕ Accounts [ 4 ] Sandra Robledo , a supply teacher, witnessed the accident. She had to swerve to avoid an oncoming car. In her rearview mirror she saw the car fail to follow a curve in the road, mount a curb and hit a pole. She parked, exited her car and approached the driver Ð the defendant Ð who was still seated in the driverÕs seat. The defendant looked disoriented and confused and appeared to have trouble breathing. Her nose was bleeding and she was hyperventilating. Robledo and a cabbie helped the defendant to the side of the road where she sat down.

At some point she appeared to realize that the police might arrive. The defendant then reached into her jacket, pulled out a bottle filled with a brown liquid and threw it in the bushes behind her. She turned to Robledo and said, ÒDonÕt say anything. Please donÕt say anythingÓ. She also asked Robledo for gum. Paramedics arrived and helped the defendant into an ambulance. The police arrived a little later. Robledo reported her observations and conversation with the defendant to the police and helped them locate the bottle the defendant had thrown into the bushes.

The 500ml. bottle was two-thirds full and contained beer with an alcohol concentration of 8.0%, as evidenced by a certificate of analysis admitted on consent of the parties. [ 5 ] Chris Dias , an EMS paramedic, arrived at the scene of the accident at 9:59pm. Answering his questions, the defendant affirmed that she was the driver of the vehicle and that she had consumed Òa littleÓ alcohol. The defendant had some abrasions, was visibly upset and required a cervical collar as she complained of pain to the right side of her neck and jaw. However, she appeared alert, oriented and responsive.

The ambulance left for Toronto Western Hospital at 10:16pm with a police officer (PC Chris Ethier) on board. On the way, the officer advised the defendant that he suspected she was impaired, that she could contact counsel, and that she would have to provide a breath sample. Other than to assist in determining whether there were reasonable grounds to make a breathalyzer demand, the Crown does not rely on any statements made by the defendant at the scene of the accident. (

c) T he Police WitnessesÕ Accounts [ 6 ] PC Chris Ethier received a Òhot shotÓ call about the accident at 9:54pm and arrived about six minutes later. He entered the ambulance five minutes later. In answer to his questions, the defendant said she had drunk that night and she had been the sole occupant of the vehicle. He could smell an odour of alcohol emanating from the defendantÕs breath. Her speech was slurred, her eyes were bloodshot and she appeared confused at first. Based on these observations and her driving behaviour, he arrested the defendant for impaired driving and driving with an excessive BAC.

He then read the defendant her rights to counsel from his memo book, including access to duty counsel. The defendant declined to speak to duty counsel. She wanted to speak to her brother-in-law, Eddie Perez, and provided a phone number. Dias used his cell phone to call the number. There was no voice contact. At 10:30pm, as they pulled into the hospital, Ethier made a breathalyzer demand. The defendant, who Ethier described as Òpretty coherentÓ, polite and respectful, said she understood. [ 7 ] The defendant was fast-tracked to a priority triage room once they entered the hospital.

Bedside her bed, Ethier again inquired what she had drunk that evening. The defendant advised that she had had Òtwo shots of somethingÓ at her home. She again requested to speak to Perez. A nurse reported that she had tried to reach him and had left a voice-mail message. The defendant was taken away for X-rays at 11:27pm and returned a few minutes later. Three additional officers, including PC Beverly Dunn, a qualified breath technician, were by then in the room. Ethier briefed Dunn and she performed breathalyzer tests on the defendant.

She was released to Perez in the hospital waiting room at 1:10am. [ 8 ] Ethier had no recall of providing the defendant with the primary and secondary cautions. When he does, he agreed that he ordinarily records doing so in his notes. He had no such notation on this occasion. [ 9 ] The qualified breath technician, PC Beverly Dunn , arrived at the hospital at 11:27pm and was briefed by Ethier. She described the defendant as upset and having a flushed face, glossy and bloodshot eyes, heavy eyelids and a stunned look. Her breath disclosed a strong odour of alcohol.

The defendant seemed ÒobliviousÓ to the slight swelling and a cut to her upper lip; she also had blood around the nails of her left hand. She told Dunn that she was the only one in the car and didnÕt know the source of the blood. Dunn then interviewed the defendant, reminding her of her right to counsel and that she, Dunn, understood that the defendant only wanted to speak to her brother-in-law. Dunn then requested samples of her blood, to which request the defendant consented. Dunn checked her equipment and conducted the requisite breath tests at 12:01 and 12:21am.

The defendant registered BACs of 169 and 170 on the respective tests. [ 10 ] Asked how much she had drunk, the defendant replied, Òtwo little bottles of beerÓ. Asked where, she replied, Òat my houseÓ. Asked why she drove after drinking, she replied that, Òshe had to pick up my momÓ. Dunn agreed that she did not caution the defendant before she interviewed her. She had assumed, if only vaguely, that the cautions had been part of the defendantÕs arrest process. [ 11 ] The first breath test was taken more than two hours after the driving at issue.

Accordingly, the Crown was unable to rely on the presumption of identity afforded by s. 258(1)(

c) of the Code. Assuming that the defendantÕs driving occurred between 9:24 and 10:24pm and that her BAC readings were 169 and 170 at 12:01 and 12:21am, respectively, the report of a CFS toxicologist, Beverly Chow , opined that the defendantÕs BAC at the time of the incident was between 160 and 210. ChowÕs Òreading backÓ of the defendantÕs BAC was founded on a number of general ÒfactorsÓ or assumptions. The third of these was that there was Òno consumption [by the defendant] of large quantities of alcoholic beverages shortly before the incidentÓ.

In an appendix to her report, Chow explained that while Òlarge quantities of alcoholic beveragesÓ cannot be defined precisely, for Òa smaller-sized female weighing up to 135 lbs., a Ôlarge quantityÕ may be defined as one standard drink, or anything upwardsÓ. A Òstandard drinkÓ was, in turn, defined as including Òone bottle of beer (5% alcohol)Ó. Crown and defence counsel agree with my observation that the defendant weighs less than 135 pounds. (

d) The DefendantÕs Account

[12] The defendant is 27. She immigrated to Canada with her family from Ecuador when she was 14. At the time of the accidentshe was working in Brampton. She has no criminal record, had never previously been arrested and testified she did not then know thatshe did not have to answer questions posed by the police. No one told her she did not have to answer police questions on the night of theaccident and she felt she did not have any choice in this regard.

She did not know any lawyers and wanted to speak to her brother-in-lawwho, she believed, would help her find a lawyer. [13] In cross-examination, the defendant said she recalled very little of what occurred before the breathalyzer tests. She testified thatshe did not understand what PC Ethier told her Òfrom a law point of viewÓ. Further, she was surprised hearing Dunn recount parts ofher hospital interview as there were portions she could not recall. C. ANALYSIS (

a) Introduction [14] The defendant advances several Charter-based challenges to the admissibility of her BAC readings and, thus, the charge ofdriving with a legally excessive BAC.

Apart from the Charter, she claims that the Crown has failed to prove the voluntariness of herhospital statements (the only statements of the defendant tendered by the Crown for substantive use at the trial proper) and that, as aresult, there is an inadequate foundation for the BAC readings projected by the Crown expert and upon which the Crown, in the absenceof the presumption of identity, relies to establish the defendantÕs BAC at the time of her driving.

As regards the charge of impaireddriving, the defendantÕs position is that the evidence simply fails to prove her impairment on application of the requisite standard. [15] I first address the charge of driving with an excessive BAC. The related analysis that follows is restricted to the voluntariness ofthe defendantÕs hospital statements and the evidence of bolus drinking as my determination of these issues are dispositive of thatprosecution. I then address the second charge, that of impaired driving. (

b) Driving with an Excessive BAC [16] None of the police who had dealings with the defendant cautioned her respecting her right to silence prior to her hospitalstatement. That caution, as included in the back of all Toronto police-issued notebooks, includes the words: ÒYou are not obliged to sayanything unless you wish to do so, but whatever you say may be given in evidence against youÓ. [17] Relatively recently, in R. v.

Brown (2010) 2010 ONCA 622 , 268 O.A.C. 168, the Court of Appeal had occasion toaddress the impact of the police failure to provide a right-to-silence caution on the voluntariness of a defendantÕs statement. The Court,at para. 10, held that Òthe presence or absence of a caution is a factor, and in many cases an important factor, in answering the ultimatequestion of voluntarinessÓ. Here, the defendant was a young woman without criminal record who, on her testimony and as evidenced byher exchanges with the officers, had no prior experience with the criminal justice system.

Further, her formative legal culture (that ofEcuador) was not Canadian nor one associated with Anglo-American legal traditions. There is no reason to be skeptical about thedefendant assertion that she did not know that she could decline to answer police questions or that she had any choice but to respond tothem. In any event, she bears no burden on a voluntariness voir dire.

Given the defendantÕs age and antecedents, recent accident andinability to make contact with a trusted source so as to obtain the co-ordinates of a lawyer in whom she could have confidence, I amsimply not satisfied beyond reasonable doubt that her hospital statements were voluntary in the absence of being advised of her rightsagainst self-incrimination.

Read in context, the complete absence of a caution as to defendantÕs right to silence is fatal to the CrownÕsefforts to secure the admission of her hospital statements. [18] The effect of my ruling is that the defendantÕs hospital bed assertions as to having drunk alcohol, the amount she drank, thelocation of the drinking (her house) and that she drove the car sometime after drinking form no part of the case before me.

This, in turn,impacts on the incriminatory value of the Crown expertÕs report in so far as one of the assumptions critical to the conclusion it reachesas to the defendantÕs legally elevated BAC while operating a motor vehicle is, as earlier noted, that the defendant did not consume theequivalent of a 5% beer, or more, within 15 minutes prior to the estimated time of her driving. Is there, however, any real-world basisfor concern about the defendant having consumed a toxicologically significant amount of alcohol within the quarter-hour before theaccident?

Put more correctly, has the Crown adequately proven the impugned assumption Ð that of an absence of bolus drinking thatmay otherwise account for the defendantÕs elevated BAC readings? [19] ÒBolus drinkingÓ is generally defined as Òthe consumption of large quantities of alcohol immediately or shortly beforedrivingÓ: R. v. Paszczenko (2010), 2010 ONCA 615 , 103 O.R. (3d) 424 (C.A.), at para. 27. ÒNo bolus drinkingÓ is typicallyone of the four assumptions that ground the expert report in excessive BAC prosecutions where, as here, the Crown is unable to rely onthe statutory presumption of identity.

As explained in Paszczenko, supra, at para. 39, The effect of bolus drinking is to create a situation where the accused driverÕs BAC may have been below 80 milligrams of alcohol in100 millilitres of blood at the time of the incident, yet still register Òover 80Ó in a read-back calculation done later because it was stillrising at the time of the incident. [20] The other three assumptions in the expertÕs report are concerned with the rate of elimination of alcohol from blood, anallowance for a BAC plateau and, finally, the absence of alcohol consumption between the time of driving and the breath testing.

Ourlaw treats the first two of these as matters of scientific fact or experience, absolving the Crown of having to lead any further evidence intheir support. However, the assumptions of Òno bolus drinkingÓ and Òno drinking after the incidentÓ are considered ÒÔfoundationfactsÕ that must be proven in evidenceÓ that is case-specific: Paszczenko, esp. at para. 23.

That proof, says Blair J.A. for the Court ofAppeal in Paszczenko, at paras. 29, 32 and 34, is not onerous; rather, it is a matter of common sense inference-drawing from theevidentiary matrix: The toxicologistÕs report is premised Ð amongst other things Ð on there being no bolus drinking. In the absence of something on therecord to suggest the contrary, on what basis could a trier of fact conclude there was bolus drinking? This Court has answered the

question posed by concluding that triers of fact may resort to a common sense-inference in such circumstances, namely, that people donot normally ingest large amounts of alcohol just prior to, or while, driving É ÒNo bolus drinkingÓ is therefore largely a matter ofcommon knowledge and common sense about how people behave.

É I would frame the rationale for this approach as the imposition of a practical evidentiary burden on the accused, not to persuade orconvince the trier of fact that there was bolus drinking involved, but to point to something in the evidence (either in the CrownÕs case, orin evidence led by the defence) that at least puts the possibility that the accused had engaged in bolus drinking in play.

The imposition ofa practical evidentiary burden to come forward with evidence is simply another way of explaining the invitation to draw a common senseinference which puts the accused in essentially the same spot if he or she cannot point to some evidence to overcome either hurdle.

É É the effect of the evidentiary shift is not to require the accused to convince the trier of fact of anything, but simply to be able to point tosome evidence on the basis of which it can be said the issue of bolus drinking is alive on the record. [Emphasis in original; citationsomitted.] [21] Applying this standard, I have no difficulty concluding that there is Òsome evidence on the basis of which it can be said theissue of bolus drinking is aliveÓ in this case. The defendant showed signs of impairment at the time she was first approached by thepolice and had an odour of alcohol on her breath.

Most importantly, she had an open, plastic 500ml. bottle of beer in her jacket that sheendeavoured to discard within minutes of the accident. That bottle, when soon recovered by the police, was a third (166 millilitres)empty. The remaining contents were found to contain a strong beer of 8% alcohol content. In these circumstances, I am not satisfiedthat the Crown has discharged its onus to prove the assumption of Òno bolus drinkingÓ essential to the expert toxicologistÕs projectionsas to the defendantÕs BAC at the time of her driving.

Given her immediate access to an open and partly consumed bottle of strong beer,I am left with a doubt as to whether the defendantÕs BAC while operating her motor vehicle was in excess of the legal BAC limit. In theresult, she is acquitted of this charge. (

c) Driving While Impaired [22] My conclusions regarding the impaired driving charge are not as favourable to the defendant. The evidence of police and otherwitnesses describe a number of factors consistent with the defendantÕs impairment by alcohol at the time of her driving. Among theseare the circumstances of the accident, including the defendant nearly hitting an oncoming car, missing a curve and driving over a curband into a pole. She appeared disoriented and confused on first being approached. The odour of alcohol emanating from her breath wasobvious to the first attending police.

Additionally, her speech was slurred and her eyes were bloodshot. Approximately an hour and ahalf later, the defendantÕs breath still exuded a strong odour of alcohol, her face was flushed and her eyes were heavy, bloodshot andglossy. [23] The Criminal Code does not provide a definition of impairment. It is a factual question that must be decided on the evidence ineach case. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said bythe Court of Appeal in R. v.

Stellato (1993), (ON CA), 78 C.C.C. (3d) 380; affd. (SCC), 90 C.C.C.(3d) 160 (S.C.C.), adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell (1991), (PESCAD), 87 Nfld. & P.E.I. R. 269, at 320: It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether hisability to drive is greatly or only slightly impaired.

É If there is sufficient evidence before the Court to prove that the accused's ability todrive was even slightly impaired by alcohol, the Judge must find him guilty. [Emphasis added.] [24] I appreciate that some facets of the defendantÕs demeanour (in particular, her confusion and disorientation), as described byvarious witnesses at the scene, may well be attributable to the impact of the accident she had just endured.

I am aware, as well, that theobservations of the defendantÕs appearance and speech are here made by strangers who cannot say whether she looked or talked anydifferently than she did on other occasions. I am not, however, to look at each of the various purported indicators of impairment inisolation. Viewing the indicia of impairment in their totality, and having particular regard to the evidence of the defendantÕs drivingbehaviour, her demeanour, and her verbal facility, I am persuaded to the requisite standard that the defendant was impaired by alcohol atthe time she was operating her vehicle.

As said in Stellato, supra, Ò[i]f the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made outÓ. It does here. Accordingly, I find the defendant guilty of this offence. D. CONCLUSION [25] In accordance with these reasons, the defendant is found guilty of the offence of impaired driving and not guilty of the offenceof driving with an excessive blood alcohol concentration. Released on May 19, 2011

__________________________ Justice Melvyn Green