HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 15

ONTARIO COURT OF JUSTICE CITATION : R. v. Sharma , 2019 ONCJ 15 DATE : January 14, 2019 Scarborough - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — SHIVANI SHARMA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown B. Moreira For the Defendant R. Barrs Heard: November 26, 2018 REASONS for JUDGMENT RUSSELL SILVERSTEIN, J.: A. INTRODUCTION [ 1 ] Shivani Sharma is charged with impaired driving and operation of a motor vehicle with a blood alcohol concentration over 80 milligrams in 100 milliliters of her blood. [ 2 ] At 1:35 am on August 26, 2017 police observed Ms.

Sharma driving her car in what they believed was an erratic manner. When they pulled her over she exhibited further signs of impairment. They arrested her for impaired driving and made a breath demand pursuant to s. 254 (3) of the Criminal Code . [ 3 ] Samples of her breath were not taken until 3:41 and 4:07 am, more than two hours after Ms. Sharma’s driving. Her readings were 204 and 194 mg/100 ml of blood. Expert testimony was given to the effect that unless Ms.

Sharma had drunk a copious amount of alcohol within fifteen minutes prior to driving, or after her apprehension, her blood alcohol level (BAC) at the time of her driving would have been between 195 – 240 mg/100 ml of blood. [ 4 ] Ms. Sharma testified that she had indeed drunk a considerable amount of alcohol (approximately eight ounces of gin) within 15 minutes prior to being apprehended that morning. Her counsel, Mr. Barrs, argues that as a result of that “bolus drinking”, as it has

come to be known, the Crown has not proven beyond a reasonable doubt that her BAC exceeded the lawful limit at the time of her driving. Ms. Sharma also testified that at the time of her driving, her ability to drive her car was not yet impaired by her recent consumption of alcohol. [ 5 ] The issues to be decided are: (1) has the Crown proven beyond a reasonable doubt that Ms. Sharma’s BAC exceeded 80 mg/100 ml of blood at the time of her driving, and (2) has the Crown proven beyond a reasonable doubt that Ms. Sharma’s ability to operate her motor vehicle was impaired by alcohol at the time of her driving.

No issues are raised concerning the admissibility of any of the evidence proffered by the Crown. B. EVIDENCE (

a) Introduction [ 6 ] Four witnesses testified for the Crown;

(1) P.C. Gillegean, the arresting officer

(2) P.C. Reeve, P.C. Gillegean’s escort that night

(3) P.C. Jamie Prevost, the breath technician, and

(4) Betty Chow, a toxicologist from the Ontario Centre of Forensic Sciences. [ 7 ] The accused testified in her own defence and called no other evidence. (

b) The circumstances of Ms. Sharma’s driving [ 8 ] On August 26, 2017, shortly before 1:35 am, Officers Gillegean and Reeve were in their police car heading northbound on McCowan Road, just south of Sheppard Avenue in Toronto. They saw the accused in a black Honda stopped at a red light heading north. She caught their attention because her car was at an odd angle and was about a car-length short of the stop line. After the traffic light turned green they followed her for about a minute or two and observed her drifting back and forth as she drove forward.

The accused again stopped a car-length short of the stop line at the next red light. The accused was also having trouble staying in her lane as she drove. On three occasions the accused almost collided with the centre median, and only avoided it by swerving hard back to the right. [ 9 ] The officers pulled the accused over. Officer Gillegean approached the driver’s side window. The accused’s eyes appeared wide and glazed. She had difficulty focusing on him. She had difficulty removing her license from her wallet. He noticed an open beer can on the floor in the back of her car.

He detected the faint odour of alcohol on her breath. Reeve noticed an LCBO bag on the floor in the back of her car. [ 10 ] When Ms. Sharma exited her car she was unsteady on her feet and could not walk in a straight line. [ 11 ] Officer Gillegean made a breath demand and arrested her for impaired driving. He read the accused her rights to counsel and she said she wanted to speak to her counsel, Mr. Barrs. (

c) The evidence of what occurred at the police station [ 12 ] According to Gillegean and Reeve the accused fell asleep in the police car on the way to the station, and again at the station while waiting to be processed. She also cried and threw up at some point before providing a breath sample. [ 13 ] A video of her breath tests demonstrates that she was quite intoxicated at that time. [ 14 ] There is no complaint as concerns Ms. Sharma’s access to counsel. It is worth noting, however, that she did speak to Duty Counsel in private before providing samples of her breath. [ 15 ] According to P.C.

Prevost, who conducted the breath tests, samples of the accused’s breath were not taken until 3:41 and 4:07 am, more than two hours after Ms. Sharma’s driving. Her readings were 204 and 194 mg/100 ml of blood. Mr. Barrs raised no issues as concerns the testing or the results. (

d) The cross-examination of the officers [ 16 ] The observations testified to by the officers were not challenged on cross-examination. The officers did concede, however, that their observations were “brief” but that is in no way inconsistent with the one or two minutes they testified to in chief. Both officers conceded that they had never met the accused before and thus couldn’t say how nervous or agitated she was that morning. (

e) The expert testimony of the toxicologist [ 17 ] Betty Chow, with the consent of the defence, was qualified as an expert in toxicology. She testified and a copy of her report was filed as an exhibit. [ 18 ] In her opinion, given the breath test readings, the accused’s BAC at the time of driving, i.e. 1:35 am, was between 195 and 204 mg/100 ml of blood, assuming the accused did not drink any alcohol within 15 minutes prior to 1:35 am, or at any time between her apprehension by police and the provision of her breath samples. [ 19 ] Ms.

Chow was asked her opinion about the hypothetical case of a woman weighing 155-160 pounds who had consumed eight ounces of gin within 15 minutes prior to 1:35 am and registered the readings obtained by P.C. Prevost at 3:41 and 4:07 am. In order to extrapolate this hypothetical woman’s BAC at the time of driving from the breath readings, Ms. Chow testified that she would first subtract the eight ounces of gin since none of it might yet have been absorbed by 1:35 am.

Then, based on this hypothetical woman’s weight, she estimated that this hypothetical woman’s BAC would have been between 10 and 50 mg/100ml of blood at 1:35 am. This 10 - 50 mg/100 ml of blood would have come from alcohol other than the eight ounces of gin hypothetically consumed.

[ 20 ] One beer consumed prior to the 15 minute window would have given rise to a BAC of approximately 30 mg/100 ml of blood. [ 21 ] In Ms. Chow’s further opinion, once any human being’s BAC rises to the level of 50 mg/100 ml of blood, that human being’s ability to perform the tasks critical to driving a car is impaired by the consumption of alcohol. (

f) The evidence of Ms. Sharma [ 22 ] Ms. Sharma is a 28 year-old single woman who lives with her parents. She works full-time as a team leader. At the time of the incident in question she weighed 145 pounds. [ 23 ] On the night in question Ms. Sharma attended a get-together at her friend’s home with a view to watching a baseball game on television. She brought with her to the party a can of beer and a small bottle of gin, or a “mickey”, as she described it.

Although she had brought this alcohol with her, because she was interacting with her friend’s children she did not consume any alcohol until approximately 11:30 pm - 12:00 am when she drank the beer. She began drinking it in the house and then retreated to her car to finish it along with a cigarette. [ 24 ] She then returned to the house. According to her testimony, her friend’s brother’s former girlfriend or spouse arrived and started an altercation of some sort. During this altercation Ms. Sharma was accused of something she had not done and she got very upset.

She grabbed what was left of the mickey of gin (it was by then approximately 2/3 full), went to her car and drank it all within 5 – 7 minutes. She threw the empty bottle out the window and drove off intending to drive to her home, which was a thirty-minute drive away. She was apprehended by the police 8 – 10 minutes later. [ 25 ] Ms. Sharma believes that there were approximately 8 ounces of gin left in the bottle when she began to drink it.

She bases this approximation on her belief that the full mickey contained 14 – 15 ounces (which she says she had read somewhere) and that it was approximately 2/3 full when she took it to her car. None of the amounts referred to in her testimony was measured then, or since. [ 26 ] Ms. Sharma described herself as an experienced drinker of gin. She conceded that she knows better than to drink a large amount of alcohol, then drive. She said she doesn’t know what she was thinking that night.

She was very upset and made a bad judgment call. [ 27 ] As for her driving that night, she testified that she only began to feel the effects of alcohol consumption as she began to speak to the police. She did not deny that she was weaving on the road. According to her, she drives a particularly sensitive car and there are many potholes on the road near where she was apprehended. These potholes made it necessary to weave as she drove so as to avoid them. She admitted to twice stopping a car-length in front of the stop line. She testified that she always drives that way.

As for the observations by the police that she almost struck the median more than once, she said she didn’t remember that. C. ANALYSIS [ 28 ] Ms. Sharma is presumed innocent. The principle issue I must address is whether the Crown has proved the allegations against her beyond a reasonable doubt. [ 29 ] As concerns the impaired driving charge, Ms. Sharma testified that she only had one beer before the 15 minute window prior to her apprehension and that the rest of her consumption took place during the 15 minute window. The undisputed expert testimony of Ms.

Chow was to the effect that a person who drinks only one beer shortly before the 15-minute window leading up to driving will have a BAC of approximately 30 mg/100 ml of blood when driving, a BAC below the 50 mg/100 ml threshold of impairment. Thus, i f I accept Ms. Sharma’s evidence on this point I must find her not guilty of the impaired charge. [ 30 ] Even if I do not accept Ms. Sharma’s evidence, if it nonetheless raises a reasonable doubt when considered in the context of all the evidence, I must find her not guilty. Even if I were to reject Ms.

Sharma’s evidence in its entirety, I must nonetheless examine the remainder of the evidence and ask myself whether it proves the allegation of impaired driving against her beyond a reasonable doubt. [ 31 ] The same analysis applies to the over 80 charge. If I accept that she only drank one beer prior to the 15-minute window, and the rest of her alcohol (regardless of how much) during the 15-minute window prior to her driving, according to the expert testimony she must be acquitted.

I f I do not accept her evidence, yet it nonetheless raises a reasonable doubt on the over 80 when considered in the context of all the evidence, I must find her not guilty. Even if I were to reject Ms. Sharma’s evidence in its entirety, I must nonetheless examine the remainder of the evidence and ask myself whether it proves the over 80 allegation against her beyond a reasonable doubt. [ 32 ] As concerns the impaired driving charge, I do not accept Ms. Sharma’s evidence that she was not experiencing the effects of alcohol consumption before speaking to P.C. Gillegean that night.

Nor do I find that her testimony raises a reasonable doubt on this charge. [ 33 ] The police evidence as to the way she drove her car, along with their observations of her eyes, her unsteadiness and her lack of co-ordination was largely unchallenged, and I accept it. In particular, the evidence of her nearly colliding with the median on more than one occasion was met only with a failure to remember on her part. Her explanation for her manner of driving (avoiding potholes) does not account for the observations of the two officers. [ 34 ] On her own evidence, Ms.

Sharma drank a considerable amount before driving away from her friend’s home. Mr. Barrs essentially argues that her evidence as to the details and the timing of that drinking creates at least a reasonable doubt that an amount of alcohol sufficient to impair her ability to drive had entered her bloodstream at the time of her driving. [ 35 ] The observations of the police, which I accept, contradict her testimony.

Moreover, her level of intoxication later that evening renders her purported recollection of the details of her drinking unreliable, and renders her inability to recall almost striking the median of next to no moment.

[ 36 ] While I consider it reasonably possible that Ms. Sharma consumed a large amount of gin sometime before leaving her friend’s house, I reject her evidence as concerns the timing of this consumption. The other evidence which I accept is inconsistent with that testimony. [ 37 ] I am convinced beyond a reasonable doubt that Ms. Sharma’s ability to drive her car was impaired by the consumption of alcohol when she was observed driving at around 01:35 am that morning. [ 38 ] As for the over 80 charge, the Crown must prove that Ms. Sharma’s BAC was over 80 mg/100ml of blood at the time of driving.

The Crown does not enjoy the benefit of the presumptions under s. 258(1) that arise where the breath samples are taken within two hours of the driving. [ 39 ] As I stated above, I consider it reasonably possible that Ms. Sharma consumed a large amount of gin sometime before leaving her friend’s house. I accept that some of that consumption might have occurred during the 15 minutes prior to her apprehension. I thus cannot rely on Ms. Chow’s extrapolation. [ 40 ] The uncontested expert testimony as to impairment setting in at 50 mg/100 ml of blood, which I accept, along with my finding that indeed Ms.

Sharma’s ability to drive was impaired by the consumption of alcohol at the time of her driving amount to my being convinced beyond a reasonable doubt that Ms. Sharma’s BAC at the time of her driving was at least 50 mg/100 ml of blood. I am not, however, convinced beyond a reasonable doubt that her BAC was over 80 mg/100 ml of blood at the time of driving. D. CONCLUSION [ 41 ] I find Ms. Sharma guilty of impaired operation. The over 80 charge is dismissed. Released on January 14, 2019 __________________________ Justice Russell Silverstein