Her Majesty the Queen - v. -, 2013 SKPC 138

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 138 Date: August 09, 2013 Information: 24299458 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Donald Wyman Appearing: Ms. L. Chambers For the Crown Mr. M. Owens For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused was charged February 19, 2011 at or near Kindersley with impaired driving and drive while over .08. [ 2 ] The trial of the matter was held February 28, 2012 in Kindersley and thereafter adjourned to May 10, 2013 for continuation

to permit the Crown to call expert rebuttal evidence. Due to the inordinate delay to the next date, a transcript of the trial proceedings was ordered. [ 3 ] The matter was then concluded and argument heard May 10, 2013. At the conclusion of the submissions, the Court raised with counsel the potential issue concerning a gap in the trial transcript for a portion of the Crown’s sole witness, Constable Bowey.

Written submissions were invited and all matters then adjourned for decision. [ 4 ] Apart from the missing portion of the transcript for which the Defence seeks a mistrial, the remaining argument involved evidence to the contrary pursuant to s. 258(1)(d.1). The charge of impaired driving was stayed by the Crown at the conclusion of oral argument. [ 5 ] The Crown called the investigating officer, Constable Bowey, of the Kindersley Detachment. The Defence called the accused, Donald Wyman, as well as Dr.

Stephen Richardson to provide expert evidence concerning expected blood alcohol content (BAC) calculations for the purpose of establishing a defence pursuant to s. 258(1) (d.1) of the Criminal Code . The Crown was then granted permission to call Dr. Tracy Cherlet to provide expert evidence in rebuttal to the Defence case. II ISSUES

a) Whether a mistrial should be granted as a result of the initial portion of the trial proceedings not being recorded;

b) Whether evidence to the contrary has been established sufficient to meet the two statutory criteria as required in s. 258(1) (d.1) of the Criminal Code thereby raising a reasonable doubt concerning the presumption of identity. III DETERMINATION

a) Whether a mistrial should be granted as a result of the initial portion of the trial proceedings not being recorded. [ 6 ] At the outset, the Court would like to thank and acknowledge counsel for their written submissions as well as Christina Abbott, articling student for the Court, for her very thorough research. [ 7 ] The transcript of the trial proceedings commences with the following: NOTE FROM TRANSCRIBER: THERE IS NO AUDIO RECORDING OF THE TRIAL PROCEEDINGS UNTIL 12:03 P.M.

IN THE MIDDLE OF THE TESTIMONY OF CROWN WITNESS. [ 8 ] The Crown witness was Constable Bowey whose evidence in the transcript commences as follows: WITNESS: . . . back to my vehicle and departed for the Detachment. [ 9 ] The Court was concerned as to the possible ramifications of this missing portion of the proceedings in regard to statutory

compliance to record as well as any possible impact on the parties’ rights, particularly concerning appellate review. [ 10 ] Predictably, counsel took opposing views - the Defence suggesting it was an automatic mistrial and the Crown rejoinding, principally, that this particular portion regarding the initial stop has no significant bearing on the trial determination or possible right of appeal since absolutely no issues were raised in connection with this evidence. [ 11 ] Recording of a criminal proceeding is statutorily mandated [1] which is now accomplished through recording device [2] such that the once ubiquitous court reporter is now a rarity, if not extinct.

Judges as well are expected to take “unofficial” notes either in long hand or more increasingly as the judicial demographic evolves, by software text input. [ 12 ] Due to the foibles of human nature or an occasional mechanical/electronic malfunction, such incidents of failing to record, although not common, are certainly not unheard of. [3] The issue, once realized, is what impact it has on the proceedings.

In the instant case, the matter is somewhat unique in that the recording gap was discovered prior to the trial concluding rather than the more usual circumstance on appeal when transcripts are ordered. [ 13 ] In Children ’ s Aid Society of Toronto v. Ch. B. and Co. D. [4] , roughly twenty pages of cross-examination of Ms. Ch. B were discovered missing during the hearing. The matter proceeded however through cooperation of the parties, including release of the judge’s notes as it was determined this course was in the best interests of the child. [ 14 ] R. v.

Byers [5] involved a dangerous offender application where an hour and forty-five minutes of a defence forensic psychologist was discerned missing prior to concluding. Notwithstanding, the hearing proceeded following an interim judicial decision based upon the following:

a) the RCMP attempted to recover the audio recording;

b) the psychologist was unavailable to re-testify;

c) the missing evidence represented only a small portion of the doctor’s overall evidence;

d) the erasure was accidental;

e) notes from various parties were compared and considered;

f) lack of materiality to the final outcome; and

g) lack of prejudice. [ 15 ] The leading authority on appellate review to determine whether a mistrial is warranted for missing testimony is R. v. Hayes [6] which stated “ . . . a new trial need not be ordered for every gap in a transcript.

As a general rule, there must be a serious possibility that there was an error in the missing portion of the transcript, or that the omission deprived the appellant of a ground of appeal.” The overall concern being the impact on the administration of justice, the Court did not feel the criteria had been met and dismissed the appeal. [ 16 ] In the present case, the missing evidence involved the testimony of Constable Bowey in chief concerning his initial observation of the accused’s vehicle and subsequent roadside engagement.

An approved screening device (ASD) was utilised following noted signs of alcohol consumption together with certain admissions made by the accused. Thereafter, the accused was detained following a “fail” result and was taken to the Detachment which is the point where the evidence recording commences (para. 8, supra ). [ 17 ] In all of the circumstances, the Court declines to exercise its discretion to order a mistrial for this non-recorded evidence, based upon the following:

a) the missing portion is brief and well covered in cross-examination;

b) no issue was raised by Defence concerning the roadside stop or grounds to implement the ASD by Constable Bowey [7] ;

c) there was no driving evidence witnessed by Constable Bowey and in any event, the Crown has stayed the impaired driving charge;

d) the Court’s notes of the unrecorded portion are available and will be preserved for any potential appellate review. Although certainly not a verbatim transcription, the essence of the testimony is captured. It is also important to note that the fact of the missing portion of transcript was not raised or relied upon in argument prior to the Court raising the issue.

b) Whether evidence to the contrary has been established sufficient to meet the two statutory criteria as required in s. 258(1) (d.1) of the Criminal Code thereby raising a reasonable doubt concerning the presumption of identity. [ 18 ] Section 258(1) (d.1) of the Criminal Code reads: 258(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or section 254(5) or in any proceedings under any of subsections 255(2) to (3.2), . . . (d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (

c) or (

d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 ml of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 ml of blood, in the absence of evidence tending to show that the accused ’s consumption of alcohol was consistent with both (

i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed, and (ii) the concentration of alcohol in the accused’s blood as determined under paragraph (

c) or (d), as the case may be, at the time when the sample or samples were taken; (Emphasis added) . . . [ 19 ] The essence of a defence utilising this

section is to accept the presumption of accuracy of the Certificate of Analyses at time of testing, but to challenge the presumption of identity regarding the driver’s BAC at the time of driving based upon bolus (unabsorbed quantity prior to driving) or intervening (subsequent to driving) consumption of alcohol. In R. v.

St.-Onge Lamoureux [8] (which also upheld the constitutionality of s. 258(1)(d.1)) Madam Justice Deschamps described at para. 84 what was now required to achieve this according to the section: [84] As a result of the statutory amendments, evidence to the contrary adduced by the accused must tend to show two facts: (1) the consumption of alcohol of the accused was consistent with a blood alcohol level that did not exceed .08 at the time when the offence was alleged to have been committed; and (2) the consumption of alcohol of the accused was consistent with the test results.

[ 20 ] The second requirement articulated by Madam Justice Deschamps relating to the consumption of alcohol being consistent with the test results was one of the statutory amendments to this

section that she referred to. This was in direct response to a defence spawned by the decision of R. v. Carter [9] which held that “evidence to the contrary” could be provided by an accused’s testimony regarding alcohol consumption properly interpreted by an expert to raise a doubt concerning the blood alcohol test results. This defence, commonly referred to as Carter evidence, was very successful notwithstanding that breathalyzer readings were considered to be scientifically reliable. [ 21 ] In the case at bar, the Certificate of Analyses indicated the accused’s BAC at 0140 hours to be 110 mgs.

At trial, the accused testified as to his drinking pattern and consumption which now must be examined in the context of s. 258(1) (d.1). Evidence of the Accused [ 22 ] The accused testified that he spent the day at his job delivering oil in the rural area north-west of Kindersley. He started at 6:30 a.m. and worked late, returning to Kindersley after 9:00 p.m.

After cleaning up, depositing a cheque at a local bank through the ATM and talking to a friend, he went to the Red Lion Inn, a few blocks away. [ 23 ] He stated that he arrived at the Red Lion Inn at 11:15 p.m. which he knew because he looked at the clock in the bar when he arrived. [ 24 ] Thereafter, he sat with friends and ordered and paid for his own drinks, the total of which were as follows:

a) between 11:20 p.m. and 11:30 p.m. one ounce of vodka with water and coke;

b) between 11:35 p.m. and 11:50 p.m. two ounces of vodka with water and coke;

c) between 12:05 a.m. and 12:10 a.m. two ounces of vodka with water and coke. [ 25 ] He then left the bar upon finishing his last drink. Shortly after leaving, he was stopped by Constable Bowey at approximately 12:15 a.m. [ 26 ] When pressed in cross-examination to expand more precisely on his timelines prior to going to the bar, he stated:

a) in from work around 9:00 p.m. and thereafter cleaned up and punched out at 9:45 p.m.;

b) between 9:45 p.m. and 10:00 p.m. attended to depositing his cheque at the ATM. When asked why this took 15 minutes he explained that he had to do it twice because he made a mistake;

c) between 10:00 p.m. and 10:30 p.m. chatted with a friend outside the ATM notwithstanding it was minus 35 degrees and the accused admitted he was very cold standing out there talking;

d) arrived at the bar at 11:15 p.m. which he acknowledged was only three to four blocks away. [ 27 ] As far as the timelines for his drinking pattern, he admitted that he didn’t usually watch the clock in the bar but did so on this

occasion because he knew he couldn’t stay long and had to get home. Expert Evidence [ 28 ] Dr. Richardson gave expert opinion evidence that this accused, being a 200 lb. male would have a maximum BAC from five ounces of alcohol of 75 mgs. or .075. This calculation was arrived at by allowing 15 mgs. (14.9 rounded) of alcohol for each of the five ounces consumed, based upon total absorption of the alcohol into the bloodstream. [ 29 ] Dr.

Richardson also testified that alcohol does not begin to be absorbed until 30 minutes after ingestion, so in effect, the accused’s BAC would be even lower than .075 at the time of driving at 12:15 a.m., because only a portion of the alcohol would have been absorbed by this time. [ 30 ] Dr. Cherlet in her evidence took adamant exception to Dr. Richardson’s absorption theory stating that it was well-established that alcohol begins to be absorbed into the bloodstream almost immediately upon consumption [10] .

In any event, if the accused consumed only five ounces of alcohol, as he stated, whether it was partially or totally absorbed at the time of driving is of no consequence since total absorption would achieve only 75 mgs. (.075), a figure concurred upon by Dr. Cherlet. [ 31 ] Both experts were asked to make retrograde calculations from the 1:40 a.m. Certificate reading of 110 mgs. back to the time of driving at 12:15 a.m. Dr. Richardson and Dr. Cherlet each calculated this to be between 124 mgs. and 138 mgs. based upon a rate of elimination of alcohol of 10 mgs. per hour and 20 mgs. per hour, respectively.

In other words, in order to achieve a reading of 110 mgs. at 1:40 a.m., some one and one-half hours after alcohol consumption ceased, the expected BAC’s would be in this range at 12:15 a.m. IV RESULT [ 32 ] Having carefully reviewed the evidence and relevant law, the Court concludes that the accused has failed to meet the two statutory requirements of s. 258(1) (d.1) necessary to establish evidence to the contrary, pursuant to this section. [ 33 ] The Court reaches this determination for the following reasons:

a) to satisfy the first requirement, the accused must present credible evidence that his alcohol consumption would have placed him under 80 mgs. at the time of driving. In this respect, while both experts agreed that consuming only five ounces of alcohol would indeed peak at a maximum BAC of 75 mgs. (.075), this is predicated upon the reliability of the accused’s evidence which certainly had its weaknesses overall.

His explanations of taking 15 minutes to deposit the cheque at an ATM, standing outside in minus 35 degree weather for 30 minutes to talk to a friend, and most significantly, taking 45 minutes to travel only a few blocks to the bar, defy common sense. Paradoxically, he could recall with military precision the timing and quantum of his drinks in the bar notwithstanding that he would have had no reason at the time to be so careful and precise. In these circumstances, the accused’s evidence lacks the necessary reliability to challenge the accuracy of the test results;

b) in any event, even if accepted by the Court, the consumption evidence of the accused is not consistent with the test results as required by the second leg of s. 258(1) (d.1). As noted, both Drs. Richardson and Cherlet agreed that five ounces of alcohol consumption would produce a maximum BAC of 75 mgs. (.075) in this accused.

This however cannot be reconciled with the Certificate of Analyses value of 110 mgs. at 1:40 a.m., roughly one and one-half hours after he stopped drinking. [ 34 ] The obvious inference on all the evidence is that the accused spent longer at the bar and drank more than he testified to which the retrograde calculations of both experts appears to support. Nonetheless, as stated, the accused has failed to meet the evidentiary burden placed upon him by s. 258(1) (d.1).

[35] In the result, the accused is found guilty of Count #2 of the Information of driving while over .08. ________________________ R.D. Jackson, J [1] Section 801(3) “ . . . the

summary conviction Court shall proceed with the trial, and shall take the evidence of the witnesses for theprosecutor and the defendant in accordance with the provisions of

Part XVIII relating to preliminary inquiries.

Section 540 (Part XVIII)(1) where an accused is before a justice holding a preliminary inquiry, the justice shall: (

b) cause a record of the evidence of each witness to be taken (ii) in a province where a sound recording apparatus is authorized by or under provincial legislation for the use in civil casesby the type of apparatus so authorized and in accordance with the requirements of the provincial legislation. [2] The Evidence Act of Saskatchewan, RSS s. 29(1) Notwithstanding anything in any other act:

a) the evidence in any proceeding, or any portion of that evidence may be recorded by a sound recording device; and

b) a Court may order that the evidence in the proceeding or any portion of that evidence, shall be recorded by sound recording device. [3] See R. v. Lichty [1971]ONSC, (ON SC), 2 O.R. 193, 2 C.C.C. (2d) 581; R. v. Horvat [1977] BCCA, (BC CA), 34 C.C.C. (2d) 73; R. v. S(S.E.) [1992] SKCA, 16 W.C.B. (2d) 125; R. v. Doucette [1993] NBCA (NB CA), 135, NBR (2d) 151, 344 APR 151, R. v. Noble [1996] BCCA, (BC CA), 47 C.R. (4th) 258, 106 C.C.C. (3d) 161;R. v. Gagnon [2000] ONCA, (ON CA), 147 C.C.C. (3d) 193, 137 OAC 116, R. v.

Voit, 2001 ABQB 1119, 27 MVR (4th) 264, to name a few. [4] 2007 ONCJ 329 [5] [2010] ONSC, 2010 CarswellOnt 9712 [6] (SCC), [1989] 1 S.C.R. 44, 68 C.R. (3d) 245 at para. 10 [7] See R. v. Kaysaywaysemat [1992] SKCA, (SK CA), 10 C.R. (4th) 317, 97 Sask. R. 66 where the unrecordedevidence of the first two police officers was insufficient to order a new trial as their evidence did not touch on the principal issue ofidentity. See also R. v.

Speir, 2007 SKQB 280, where the Court in an alcohol-related driving offence trial found “ . . . no relevant orsignificant gaps in the transcript, nor any reasonable possibility that the gaps would give rise to an appeal ground not already asserted orotherwise ascertained from the balance of the transcript.” [8] 2012 SCC 57 , [2012] S.C.J. No. 57, [2012] 3 S.C.R. 187, 351 D.L.R. (4th) 381 [9] (1985), (ON CA), 19 C.C.C. (3d) 174 (Ont.

C.A.) [10] This appears to be supported by the Supreme Court’s comments in St.-Onge Lamoureux (supra) at para. 173 “As the report ofJacques Tremblay, filed in this case, stipulates an individual’s BAC rises steadily as one consumes alcohol . . . stabilizing itself rapidlyafter the last consumption.”