Her Majesty the Queen - v. -, 2013 SKPC 183

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 183 Date: November 20, 2013 Information: 24433399 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kamilio F. Ladongi Appearing: Mr. Rob Parker For the Crown Mr. Brad Tilling For the Accused JUDGMENT D. KOVATCH , J [ 1 ] Mr. Ladongi is charged with driving while his blood alcohol level exceeded .08. What is unusual about this case is the evidence presented by the Crown and how it has attempted to prove the charge. [ 2 ] The Crown called three witnesses.

The first was Mr. Jacob Janzen. He testified that at approximately 3:00 a.m. on February 6, 2012, he was driving west of Moose Jaw on Highway #1. Highway #1 is a four lane divided highway. At the time of this driving, the witness was travelling at a speed of approximately 105 or 106 kilometres per hour. Mr. Janzen’s truck was passed by a black SUV also travelling west. He estimated the speed of the SUV at 115 to 120 kilometres per hour.

[ 3 ] Mr. Janzen testified that he was following another semi-trailer by a fair distance, perhaps one kilometre. The SUV passed Mr. Janzen’s truck and then approached and overtook the other semi-trailer. Mr. Janzen testified that the SUV moved from the right- hand driving lane to the left passing lane to pass the semi. However, it did not then straighten out, and continued to move left into the centre meridian ditch between the two driving portions of Highway #1. The SUV then struck an approach, catapulted over it and rolled. Mr.

Janzen testified that he saw no indication of any signalling or braking as the SUV moved to the left and entered the ditch. Mr. Janzen testified that he believed the driver of the SUV fell asleep at the wheel. On the basis of this evidence, and the pictures of the crash scene, I believe it is very fortunate that Mr. Ladongi was not injured much more seriously or killed. [ 4 ] Mr. Janzen further testified that he immediately stopped his vehicle, called 911 and approached the SUV. He saw Mr. Ladongi crawl out of the wreckage. He stayed with Mr.

Ladongi, and spoke with the 911 operator until the EMTs and ambulance arrived. Minutes after they arrived, Cst. Hill of the RCMP arrived. Mr. Janzen gave a full statement to Cst. Hill. [ 5 ] Cst. Hill testified that he was dispatched to the accident scene at 3:10 a.m. When he arrived, Mr. Ladongi was being dealt with by the EMTs. Cst. Hill testified that a firefighter, also at the scene, advised Cst. Hill that Mr. Ladongi smelled strongly of beverage alcohol. However, when Cst. Hill first saw Mr. Ladongi, the accused was already on the ambulance stretcher and receiving oxygen via an oxygen mask. As a result, Cst.

Hill was not able to smell any beverage alcohol. He was also not able to speak to or gain any information from Mr. Ladongi. Cst. Hill later attended at the Moose Jaw Union Hospital. He was hoping to obtain an authorization for release of medical information from Mr. Ladongi, but was not able to obtain such a document. [ 6 ] Cst. Hill investigated the accident scene and took a lot of pictures of quite a horrific accident. He noted that the road conditions were good and there was no evidence of any braking action by Mr. Ladongi. [ 7 ] Cst. Hill also searched the vehicle and area around the vehicle.

He noted there was no evidence of any alcohol being carried in or consumed in the vehicle. There were no bottles or cans and there was no smell of alcohol in the vehicle. [ 8 ] Under cross-examination, Cst. Hill advised that on February 14, 2012, he charged Mr. Ladongi with driving without due care and attention under the Saskatchewan Traffic Safety Act , and issued and served a summons upon him. Cst.

Hill did not say this but I would surmise that he may have been suspicious that the defendant was impaired by alcohol, but at that time simply didn’t have any evidence upon which he could lay a Criminal Code charge. [ 9 ] Cst. Hill further testified that on May 28, 2012, he received a telephone call from Tasha Patterson, employed at SGI. He then spoke with a Mr. Ken Lyons at SGI. Cst. Hill testified that he was advised that at the time of the accident, Mr. Ladongi had a blood alcohol level in excess of .08.

He was allowed to testify about this for the limited purpose of saying he had received this information and what steps he took thereafter. [ 10 ] Cst. Hill then obtained a production order which was served on Moose Jaw Union Hospital. The hospital supplied copies of its business records regarding the care of Mr. Ladongi. By consent, these records were entered as Exhibit P-2 at the trial. These records clearly indicate that there was an investigation of blood work at 4:30 a.m.

Further, that the ethanol content was 33.7 millimoles per litre. [ 11 ] The RCMP then submitted the hospital records and other information to Ms. G. Patricia Lehmann with the RCMP Forensic Science and Identification Services Laboratory in Winnipeg. She prepared a report and was qualified to give expert evidence in this matter. Her written report, Exhibit P-3, reads in part as follows: Hospital alcohol result in milligrams percent and estimate of the whole blood alcohol concentration: The report issued by the hospital laboratory does not specify the specimen analysed.

Hospital laboratories typically analyse blood plasma or blood serum for alcohol content, rather than whole blood. Whole blood is made up of blood cells which are suspended in the blood plasma (liquid component). When the cells and the clotting factors are removed from the blood plasma, the specimen is referred

to as blood serum. Alcohol distributes in the body in accordance with the water content of a tissue or fluid. As blood plasma and serum have higher water content than whole blood, they will have a higher alcohol concentration than the corresponding whole blood. An alcohol ratio range is used to estimate the whole blood alcohol concentration based on a blood plasma or serum alcohol level. The alcohol result of 33.7 mmol/L is the same as 155 mg percent.

The whole blood alcohol concentration at 0435 hours is estimated to be between 124 and 141 mg percent based on a blood plasma or serum alcohol concentration of 155 mg percent. This BAC will be used as the starting point for the estimate of the BAC at the time of the collision. [ 12 ] Ms. Lehmann then reported and testified that she assumed that Mr. Ladongi engaged in normal social drinking and that there was no bolus drinking for a period of up to about one-half hour immediately prior to the collision. Pursuant to these assumptions, she assumed that Mr.

Ladongi’s peak or highest blood alcohol content was at the time of the collision. Thereafter, until blood was taken and analysed, Mr. Ladongi’s blood alcohol content would gradually decrease as the alcohol in his system was metabolized. The report then states: BAC estimate: The BAC at 0307 hours is estimated to be between 139 and 107 milligrams percent considering: (

a) the peak BAC was attained prior to or at, 0307 hours, and (

b) the BAC at 0435 hours is between 124 and 141 milligrams percent. [ 13 ] Ms. Lehmann was also advised that Mr. Ladongi was a male weighing approximately 82 kilograms. She also estimated the amount of alcohol he would have to consume immediately prior to the collision, which would then be absorbed into his blood stream following the collision, in order for Mr. Ladongi’s BAC to be 80 milligrams percent at 3:07, being the time of collision.

Her report states as follows: Beverage alcohol equivalent estimate: In order for the BAC to be 80 milligrams percent at 307 hours (at time of collision) and 124 milligrams percent (lowest estimate BAC) at 0435 hours (time of blood sampling), a minimum of 3.5 ounces of hard liquor (40 percent ABV), or 2.4 bottles of beer (5 percent ABV, 341 ml), for an 82 kg male, would have to enter the blood stream after the time of the collision and prior to blood sampling. The widmark equation was used in providing this estimate. It is based on gender and weight.

In order to have this large amount of beverage alcohol (equivalent to a BAC of 59 milligrams percent) in the gastrointestinal tract at the time the collision occurred, alcohol consumption would have to have been of a bolus manner (all at once; a consumption of large amount of alcohol in a short period). Bolus consumption of alcohol just prior to, or while, driving, is an unusual and potentially dangerous practice. Consuming a large amount of alcohol just prior to driving with the intent of beating the effects to a destination is an ill-advised practice. [ 14 ] The defence called no evidence.

PROOF OF BAC BY MEDICAL RECORDS [ 15 ] I was aware that the Criminal Code provisions regarding proof of this charge with blood evidence require a lawful demand, detailed collection procedures and certificate evidence. I was somewhat concerned that all of this had been avoided by the seizure of the hospital records. However, Mr. Parker referred me to the case of R. v. Smith , 2011 ABCA 136 . The facts of that case are almost identical to the facts of this case. In fact, it is interesting to note that Ms. Lehmann was the expert testifying in that case, as well as this one.

This decision clearly establishes that these records are admissible under s. 30(1) of the Canada Evidence Act and provide reliable evidence that the Court can rely upon. THE DEFENCE ARGUMENT

[ 16 ] In a nutshell, Mr. Tilling argued that I could not rely upon the Crown’s evidence and conclude beyond a reasonable doubt that Mr. Ladongi was guilty of driving while over .08 percent. This argument, in turn, was made on two separate bases. Firstly, he focused upon Ms. Lehmann’s statements to the effect that the hospital usually analyses blood plasma or blood serum, as opposed to whole blood. He noted that Ms. Lehmann could not ascertain from the hospital records whether the analysis was of a blood plasma or a blood serum. He said this was fatal to Ms.

Lehmann’s further assumptions and analysis. [ 17 ] Secondly, he focused upon Ms. Lehmann’s assumption of no bolus drinking. He argued that the Crown had to prove there was no bolus drinking, and with the Crown not having proved this fact, I was unable to conclude that Mr. Ladongi was over .08 at the time of collision. ANALYSIS [ 18 ] With the greatest of respect to defence counsel, I disagree with his analysis of the evidence and conclude the Crown has proved the charge beyond a reasonable doubt. I entirely accept Ms. Lehmann’s testimony. There is absolutely no reason why I would not accept that evidence.

She testified she couldn’t be sure if the hospital analysed blood plasma or blood serum. However, this was of no consequence. Both show a higher blood alcohol content than whole blood. Both will show an alcohol content of about 1.25 times the whole blood reading. She used a scientifically accepted range regarding this ratio to calculate the whole blood reading. The result was a calculation or estimate of the blood alcohol level at less than the alcohol level shown in the hospital records.

If a similar but opposite kind of calculation were used to generate a calculation of the blood alcohol content that was higher than the scientific analysis at the hospital, I would find this problematic. However, that is not the case. All of her assumptions and calculations are favourable to the accused. She detailed all of the steps taken and the calculations made. There is no suggestion that she made any error at any step.

As a result, I am confident and accept that her calculations give an accurate reflection of the accused’s blood alcohol content at the time of collision. [ 19 ] With respect to the assumption of no bolus drinking, I refer to the decision of R. v. Paszczenko ; R. v. Lima , 2010 ONCA 615 . In that case, the Ontario Court of Appeal clearly stated that there is an evidentiary burden upon the accused to lead some evidence that at least points to the possibility the accused engaged in bolus drinking.

In the absence of the accused meeting that minimal evidentiary burden, the Court is entitled to conclude there was no bolus drinking. I do so conclude that in this case. As a result, the assumptions made by Ms. Lehmann are entirely in accord with the evidence and there is no basis upon which I would reject her evidence. CONCLUSION [ 20 ] On the basis of all of the above, I am satisfied that the Crown has proved the charge beyond a reasonable doubt and I find Mr.

Ladongi guilty of the charge of driving while his blood alcohol content exceeded .08 percent. [ 21 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 20 th day of November 2013. D. Kovatch, J