R. v. Andric, 2013 ONCJ 483

COURT FILE No.: Halton 11-1910 DATE: 2013-09-04 Citation: R. v. Andric , 2013 ONCJ 483 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ZDRAVKO ANDRIC Before Justice F.L. Forsyth Heard on February 25, 2013, April 8, 2013, June 18, 2013 and August 12, 2013 Reasons for Judgment released on September 4, 2013 Emily Roda and Maureen McGuigan............................................................................ for the Crown Bruce Daley ..................................................................................... for the accused Zdravko Andric FORSYTH J.:

Summary of the Evidence [ 1 ] Mr. Andric was charged with a single count contrary to s. 253(1) (

b) of the Criminal Code arising out of an incident on June 19, 2011. Specifically, he was charged with operating his motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. [ 2 ] Mr. Andric retained counsel, Bruce Daley, Esq., and the Crown elected to proceed summarily. The accused entered a plea of not guilty and the Court entertained a s. 11(

b) application that had been filed by Mr. Daley to be argued on February 25, 2013. I received submissions from both counsel, as well as Mr. Andric’s affidavit in support of his application. I reserved my decision until the scheduled date for trial of this case in the event that I happened to dismiss the 11(

b) application. That date was April 8, 2013. [ 3 ] On April 8, 2013 I dismissed the 11(

b) application and filed my written reasons with the court file. Mr. Andric’s trial then began the merits. He was assisted throughout by an accredited Croatian court interpreter. [ 4 ] Mr. Daley had also filed a s. 8 Charter application on behalf of Mr. Andric and it was agreed by Crown counsel on April 8, 2013, now Ms. Maureen McGuigan, and Mr. Daley that the Charter application and the trial should proceed in a blended fashion. Eventually, Mr. Daley abandoned the Charter application. Therefore, in this

summary of evidence, I will intentionally confine myself as much as possible to a

summary of the evidence that is relevant to the only outstanding issue in this trial at this time. That issue is one of “bolus drinking” and whether or not the totality of the evidence should permit the Crown to rely upon the opinion of the CFS toxicologist about the accused’s BAC at the time when he was stopped by the police while he was operating his motor vehicle.

In this case the first breath test was outside of the 2 hours since that point and the Crown thus cannot rely upon the s. 258 [1] [c] presumption to prove the accused’s BAC at the last point of his driving before he was stopped by the police. [ 5 ] The first witness called by the Crown was P.C. Mark Urie who testified in Chief that he is a Constable with the Halton Regional Police Service with 10 years’ experience. On June 19, 2011 he was operating in a uniform capacity on what he described as proactive patrol during his night shift in a fully marked police cruiser.

In the scope of that duty he set up near a licensed established in Burlington known as Solid Gold at the intersection of Plains Road and Cook Boulevard. He was parked on the south side of Plains Road in a parking lot observing traffic that was leaving Solid Gold immediately across the road on the north side of Plains Road. [ 6 ] At 10:00 p.m. he observed a white cargo van leaving the rear parking lot of Solid Gold and travelling southbound on Cook Boulevard. It is undisputed that the accused, Mr. Andric, was driving this van. P.C.

Urie said that as it travelled south it swerved slightly towards a stop sign at the intersection and then corrected, coming to a full stop and signalled to turn left which it then did. The officer followed behind the vehicle just simply to make additional observations and, after he observed some minimal weaving within the vehicle’s own lane, he pulled it over by executing a traffic stop at Shadeland Avenue using his emergency police lights.

[ 7 ] He approached Mr. Andric, who was seated behind the wheel of his vehicle, and after asking some questions of him, the officer formed a reasonable suspicion that Mr. Andric was operating his motor vehicle with alcohol in his body, and at 10:14 p.m. he read the approved screening device (“ASD”) demand to him. Originally, Mr. Daley had brought the s. 8 Charter application in connection with the ASD and the manner of its use by P.C. Urie, but since he eventually abandoned that motion, I will simply now just say that Mr.

Andric provided a proper sample into the unit and registered a fail at 10:19 p.m. [ 8 ] He then arrested him on this charge and provided his rights to counsel and a caution, none of which is in dispute according to Mr. Daley. He read the formal breath demand to Mr. Andric at 10:23 p.m. Although Mr. Andric requires a Croatian interpreter for court purposes, he apparently could express himself well enough in English to be able to understand the demand. At least Mr. Daley has not raised that issue on this trial. [ 9 ] P.C. Urie then, after doing a pat-down search of Mr.

Andric at the scene during which he found no alcoholic beverage containers on his person, transported him to the Burlington detachment leaving the scene at 10:28 a.m. and arriving at 10:35 p.m. He also testified that he had looked inside the vehicle of Mr. Andric and did not locate any alcoholic beverages in the vehicle. [ 10 ] In cross-examination by Mr. Daley, P.C. Urie said that on occasion he had worked inside the Solid Gold establishment while on plainclothes duty.

He agreed that alcoholic beverages are aggressively sold in the establishment to the extent that it “becomes a very big issue very quickly if you’re there and you don’t have a drink in front of you”. [ 11 ] He also said that he had asked Mr. Andric when he had consumed his last drink and he agreed that he had noted in his notebook that the accused’s response in English was, “About 15 minutes ago”. He said that there was an indication that the accused had told him 15 minutes ago, but he was not sure whether that was an approximation or not. [ 12 ] Mr.

Daley then asked him if he had had any input with respect to the CFS toxicologist report upon which there is no issue that the Crown will be relying in this case because the breath tests were outside of the two-hour period. P.C. Urie said that he did actually prepare a letter of request for an opinion from the CFS in this case. Mr. Daley asked if in that letter he had included any questions and answers that took place between the Intoxilyzer technician and Mr. Andric with respect to Mr. Andric’s “consumption pattern”. P.C. Urie agreed that he had included the Alcohol Influence Report of P.C.

Martin who was the qualified Intoxilyzer technician on duty who dealt with Mr. Andric and that that was forwarded to the CFS. [ 13 ] At this point, Ms. McGuigan objected to Mr. Daley attempting to elicit what she described as self-serving evidence and hearsay evidence about what the accused may have said about his drinking pattern from P.C. Urie. Mr. Daley gave a preview then of what his position was going to be with respect to this evidence when eventually he had the opportunity to cross-examine the CFS witness who was going to be called subsequently on the trial.

He stated that it would be his submission that this sort of evidence would be an exception to the general rule with respect to the exclusion of self-serving hearsay evidence because he anticipated that the forensic toxicologist witness would testify that her opinion rested partially upon an assumption that there had been no recent drinking by Mr. Andric before the time that he was stopped by P.C. Urie and that she would have examined, as Mr. Daley put it, “X amount of data in coming to her conclusion”. The matter was left at that stage after Mr. Daley obtained the agreement by P.C.

Urie that the Alcohol Influence Report, which was included with his letter of request to the CFS, would have included questions and answers between P.C. Martin and Mr. Andric. [ 14 ] The next witness called by the Crown was P.C. Jessie Martin who testified in Chief that he has been a qualified Intoxilyzer 8000C technician employed with the Halton Regional Police since January 2008. He was the Intoxilyzer technician on duty who dealt with Mr. Andric. At this point Mr.

Daley informed the Court and the Crown that he would accept for the purposes of the trial that the breath tests were accurate, that they were properly taken, and that they can be relied upon by the forensic toxicologist in attempting to do her “read back”. Therefore, the Crown, on consent, introduced the Certificate of Analysis with readings of 143 milligrams of alcohol in 100 millilitres of blood at 12:19 a.m. and 137 milligrams of alcohol in 100 millilitres of blood at 12:41 a.m. June 20 th . Also on consent the Crown filed as Exhibit Number 2 the Intoxilyzer test records. [ 15 ] P.C.

Martin testified that he took custody of the accused at 12:11 a.m. and re-confirmed his rights to counsel and again read the breath demand to him. He said that he did not recall having any difficulty communicating with the accused despite his obvious accent and understanding that his mother tongue was Croatian. In fact, when the Crown asked him if he had watched the video that had been played in court of his interaction with the accused in the breath room, P.C. Martin said that he felt that the video demonstrated that Mr.

Andric was able to understand what he was being asked and that he spoke proper English in response. The officer was allowed to refresh his memory of his observations of the accused from his Alcohol Influence Report which he had prepared and, after doing so, he said that he had reached the conclusion, in his opinion, that Mr. Andric’s ability to operate a motor vehicle was impaired by alcohol at the time when he observed him. However, there was no s. 253(1) (

a) charge laid. [ 16 ] In cross-examination by Mr. Daley, P.C. Martin agreed with his suggestion that, generally speaking, the stronger the odour of alcohol from an individual’s breath the more likely recent consumption would be indicated. [ 17 ] The officer also agreed that he realized when he was dealing with Mr. Andric that the two hours available for the breath tests to be taken in order for the Crown to benefit from the s. 258(1)(

c) presumption had expired. He agreed that when he asked the questions of Mr. Andric that are contained in the Alcohol Influence Report he had that in mind. He agreed that he had asked him when he started drinking and that Mr. Andric had given him an answer. Mr. Daley suggested to him that he had no reason to doubt that answer, but P.C. Martin said, “I don’t know that for sure”. He also agreed that he had asked the accused when he had stopped drinking and that he had given him an answer and that he had recorded both of those answers on his Alcohol Influence Report. [ 18 ] Mr.

Daley then asked the officer if he had discussed those questions and answers with the Crown, the arresting officer or the qualified technician or with anyone else, and P.C. Martin said that he had not done so. Mr. Daley asked him if those answers given by Mr. Andric had caused him any concern with respect to the breath tests to be taken and the officer agreed that they had caused him concern. When asked by Mr. Daley why he had been concerned he said, “I found if someone had consumed one beer, in my experience, they wouldn’t be providing a sample almost two times over legal limit” [sic]. He agreed with Mr.

Daley’s suggestion that he had

concluded that Mr. Andric’s answer of having had one beer was not accurate, to say the least. [19] Mr. Daley asked him if he had been concerned about the timing of Mr. Andric’s drinking, especially with the last drinktime, and he agreed that those answers did give him some concern. However, he said that he had not discussed this concern withanyone. [20] Mr. Daley and Ms. McGuigan then engaged in a discussion with the Court about whether or not Mr.

Daley would beallowed to resort to the questions and answers from the Alcohol Influence Report when he eventually would be cross-examining theCrown expert toxicologist witness who was expected to testify because of the tests being taken outside of the two hours. [21] Mr. Daley also submitted that he should be permitted to play the breath room video for the Crown toxicologist and thenask her if, after she heard the answers about the timing of the drinking of Mr. Andric, she was comfortable or not with her assumptions inher toxicological report.

As he put it at page 53 of the April 8, 2013 transcript, “I don’t know of any principle of law that would stop mefrom putting that hypothetical to the expert, without whom [sic] [whose] opinion the Crown can’t succeed”. [22] Ms. McGuigan responded by stating the concern of the Crown that these utterances by the accused are self-serving andthat they should not be admitted into the body of evidence on the trial for the truth of their contents. As she put it, “Any hypothetical canbe put to an expert, but that doesn’t make [the] underlying facts admissible”. Mr.

Daley countered by saying that it was his respectfulview that the video is real evidence in which his client makes those utterances. He conceded that it does not mean that those utterancesof his client were necessarily true, but he disagreed with Ms. McGuigan that it would be a hypothetical type of question. [23] Both counsel agreed that this issue would have to be argued at a later point in the trial and Mr. Daley indicated that hehad completed his cross-examination of P.C. Martin. Ms.

McGuigan had no re-examination for the Crown. [24] The Court then broke for lunch in order to allow the Crown time to set up the breath room video for viewing. WhenCourt resumed after lunch, Ms. McGuigan informed the Court that she had located a precedent which she felt was on point with respectto the issue of the potential use of the statements of the accused to the breath technician contained in the Alcohol Influence Report andalso on the video. Ms. McGuigan supplied copies of the Ontario Court of Appeal decision of R. v. Edgar, 2010 ONCA 529 ,[2010] O.J. No. 3152 to both the Court and also to Mr.

Daley. [25] Ms. McGuigan then argued that the burden should be on Mr. Daley to establish that to admit these statements for anypurpose but, more specifically, for the truth of their contents, to bring the argument within an exception to the general rule that self-serving statements of an accused out of court cannot be introduced at the behest of the defence. She submits that Edgar was a case ofspontaneous reaction statements immediately at the time of arrest that were ruled to be admissible as essentially res gestae.

She alsoargued that Edgar established that such statements, even if admissible, can only be used once the accused has testified and that theycannot be admitted during the case for the Crown. [26] Mr. Daley argued that to prove beyond a reasonable doubt the assumptions that are employed by the toxicologist, one ofwhich was that there was no recent drinking by the accused, the Crown should have to put to the expert any facts that would cast doubtupon those assumptions. He conceded that even though the statements of Mr.

Andric would be considered to be self-serving and,therefore, could not be introduced for the truth of the contents, nevertheless they have to be put to the expert. He disagreed that by sodoing the questions would be put to the expert in the hypothetical sense because the questions would simply be referring the expert toexactly what Mr. Andric had said to P.C. Martin as seen on the video about his drinking pattern.

He again emphasized that they wouldnot be admitted for the truth of their contents. [27] However, he submits that once those questions are put to the toxicologist and the answers are obvious to the toxicologist,then the Crown could not prove beyond a reasonable doubt that there was no recent drinking, as he put it. When the Court inquired ofMr. Daley as to whether he was submitting that the Crown would then have to disprove what Mr. Andric had stated, Mr. Daley said yes,or to lead his client’s statement and invite the Court to find that it was not truthful. At the conclusion of this discussion, Mr.

Daleyagreed that perhaps this argument was somewhat premature before the evidence of the toxicologist was known and before his cross-examination of that witness. With that in mind, the Crown called the CFS toxicologist. [28] Rachelle Wallage testified. Ms. McGuigan acknowledged that the Crown had given notice to Mr. Daley pursuant to s.657(3) of the Criminal Code of the Crown’s intention to rely upon Ms. Wallage’s statement of qualifications and her affidavit with heropinion and conclusions. She, however, said that she realized that Mr.

Daley wished to cross-examine the witness and, therefore, theCrown would put the witness in the stand and ask a few basic questions before turning the witness over to Mr. Daley for cross-examination. [29] Through Ms. Wallage, then, as Exhibit Number 3, on consent, the Crown entered the affidavit of Ms. Wallage and itsappendices. Mr. Daley agreed that Ms. Wallage could be qualified as an expert toxicologist qualified to give evidence of absorption,distribution and elimination of alcohol from the human body.

In addition, he conceded that she would be able to give expert evidencewith respect to the operation of the Intoxilyzer 8000C. [30] In Chief Ms. Wallage said that when she does her “read back” she uses the lower of the two truncated readings. Therefore, in this case, she was using the reading produced by the breath tests of Mr.

Andric of 130 milligrams of alcohol in 100millilitres of blood. [31] She then discussed the relatively established convention amongst toxicologists that they should be certain that there wasno alcohol consumed by the individual who will be the subject of the report within 15 minutes before the time when the blood alcoholconcentration should be calculated. She explained that she deducts the consumption that occurred within 15 minutes prior to the“incident” when calculating the subject’s BAC at that time.

She agreed that the concept of 15 minutes is an approximation and that it isa convention which has been accepted by most toxicologists known to her. She also conceded that there would be some variationamongst toxicologists as to whether or not that period would be an absolute or would have some variability attached to it. She thenadded the following: “And for me, I personally will say approximately 15 minutes, but if we’re talking about a situation of not one or

two beers, or one or two drinks, but a larger consumption pattern than that, then it’s possible it could go to 30 minutes”. [ 32 ] For greater clarity, Ms. Wallage said, and I quote: If it’s anything within 15 minutes, then I will consider it a bolus pattern of drinking and I will take off the drinks associated with it... ... Yes, I can do it one of two ways.

So, what I’ve done here is I’ve done a calculation to say how much a person would have to consume to be 80 at the time of the incident and have a breath test. [ 33 ] She also testified that she could do an alternative calculation where, if she was presented with a bolus drinking pattern which would be quantified, then she could deduct those drinks and provide a new calculation. [ 34 ] The affidavit and toxicological opinion report of Ms. Wallage was introduced as exhibit #3. [ 35 ] In cross-examination by Mr. Daley, Ms.

Wallage agreed with his suggestion that with respect to her third assumption the wording could now be amended to “no consumption of large quantities of alcoholic beverages within approximately 30 minutes”. [ 36 ] Mr. Daley then proposed to show Ms. Wallage his copy of P.C. Martin’s Alcohol Influence Report. At this point, Ms. McGuigan again objected and reminded the Court that the Crown was opposed to a ruling that would allow those utterances of Mr. Andric to P.C. Martin contained in the Alcohol Influence Report to be admitted in the body of evidence in this trial for the truth of the contents.

That being understood, Mr. Daley was permitted to continue to use the A.I.R. in his cross-examination of Ms. Wallage with the legal argument and ruling to be forthcoming at a later time. [ 37 ] First of all, Ms. Wallage agreed with Mr. Daley’s suggestion that self-reporting is generally not thought to be the most reliable way to obtain data. However, she agreed that she sometimes does not have any choice. She then agreed with Mr.

Daley’s suggestion that she would want to look at the information that the subject gave to the police about his drinking pattern before the relevant time when his BAC was to be calculated. [ 38 ] After referring Ms. Wallage to the questions and answers on the A.I.R. that dealt with the time when Mr. Andric reported he began to drink alcoholic beverages and the time when he reported that he had completed drinking those beverages, he suggested to Ms. Wallage that Mr. Andric had reported to P.C. Martin that he had consumed all of his alcohol beverages within a 15-minute period and she agreed with that suggestion.

She also agreed that even if all of Mr. Andric’s reported consumption had been within a 30-minute period, she would not have been able to do an effective “read back”, in her opinion. She said that she could conclude that some of the alcohol would have been absorbed into Mr. Andric’s system, but she would have no idea how much of it would have been absorbed by the relevant time. [ 39 ] Mr. Daley then attempted to have Ms. Wallage agree with him that no credible forensic toxicologist would even attempt to do a “read back” because of the amount of alcohol consumed in that short period of time, but Ms.

Wallage simply said that she would not attempt to do it and she did not know if anybody else would. [ 40 ] Mr. Daley then drew Ms. Wallage’s attention to the answer recorded on the A.I.R. by Mr. Andric to the question of how much he had had to drink where he had stated, “One or two beers”. She then agreed with Mr. Daley’s suggestion that Mr. Andric’s self- reported one or two beers, when compared to the reading obtained by the Intoxilyzer would have to have been understated by about three and a half standard drinks, whether they be beer or other alcohol-related drinks. Ms.

Wallage also said that she thought that the understatement would be even greater than that, but at least by that much. [ 41 ] Mr. Daley then proposed to play the video of Mr. Andric’s breath room interview with P.C. Martin and told Ms. Wallage that he would be asking her to confirm, after she watched the video, that she would not be able to stand by her assumption that she had implemented in her third assumption of her report. For greater clarity, of course, Mr. Daley was referring to the assumption of no bolus drinking. [ 42 ] After the playing of the video, Mr. Daley referred Ms.

Wallage to the evidence from the video that P.C. Urie’s traffic stop of Mr. Andric was 10:11 p.m. He then asked her to agree that if Mr. Andric had consumed all of his drinks within 30 minutes of being stopped by the officer at 10:11 p.m. it would be impossible for her to do a “read back” and she agreed. [ 43 ] Ms. Wallage also testified that, as an instructing toxicologist to police officers, she advises them that it is their responsibility to ascertain whether the subject has consumed alcohol within the previous 15 minutes before administering an ASD demand to them. [ 44 ] Mr.

Daley then asked her what her opinion would be about the evidence given by P.C. Urie that Mr. Andric had told him that his last drink was “about 15 minutes ago”. Ms. Wallage said that it would be very difficult for her to give an opinion on whether or not P.C. Urie should have been satisfied with that answer as far as clearing the 15-minute period is concerned because she was not certain how he would have interpreted the response of “about 15 minutes ago”. [ 45 ] In re-examination Ms.

Wallage testified that if somebody had consumed alcohol “about 15 minutes ago”, to her that was not really a concern for the mouth alcohol effect 15 minutes later. She said that it would all depend on what the term “about” actually means, but she would say that it is certainly not a major consideration in her mind. [ 46 ] On consent, the breath room video DVD was entered as Exhibit Number 4, but, of course, subject to the Court’s prospective ruling on the extent to which Mr. Andric’s utterances to P.C. Martin could be admitted into evidence and for what purpose on this trial. Ms.

McGuigan then closed the case for the Crown.

[ 47 ] Mr. Daley indicated to the Court that he would elect to call a defence on behalf of Mr. Andric and that he proposed to call Mr. Andric to the witness stand right away. He then proposed that he could argue the Charter application and the issue of the use to which Mr. Andric’s statements in the breath room could be made by the Court in terms of the admissibility of that evidence. [ 48 ] At the request of Mr. Daley, Ms. McGuigan agreed, although with some circumspection, to have Mr.

Andric testify in Chief and to have the Crown cross-examine him on his utterances in the breath room even without knowing the eventual ruling by the Court with respect to the admissibility of them. Both counsel tended to agree that this procedure would be akin to the procedure that is often adopted by the Court when conducting voir dires in a judge alone trial. By employing this particular method, the trial would tend to proceed more expeditiously. [ 49 ] After the lunch recess and before Mr. Andric took the stand, Mr.

Daley informed the Court that he was abandoning his s. 8 Charter argument which had centred around the issue of the mouth alcohol evidence about which he had questioned Ms. Wallage. [ 50 ] He also clarified that it was his intention to argue that the utterances of Mr. Andric in the breath room ought to be considered by the Court as the evidence which the defence was presenting pursuant to the evidence to the contrary provisions of s. 258(1)(

c) as they were now constituted in the wake of the Supreme Court of Canada decision of R. v. St-Onge Lamoureux, [2012] 3 S.C.R. No. 187. He further stated that because this case dealt with breath tests that were taken outside of the two-hour period which would otherwise provide the Crown with the prospect of benefitting from the s. 258(1)(

c) presumption of the BAC of the subject at the last known time of his operation of a motor vehicle and that, therefore, this issue dealt with a straight “non- Carter scientific legal issue”. For expediency I will just note here that eventually Mr. Daley and the Court agreed that actually this case does not involve the principles of St-Onge Lamoureux, supra, as they pertain to an “evidence to the contrary” defence since the defence is not faced with the onus of raising a reasonable doubt about the applicability of s. 258(1)(

c) to the case for the Crown. [ 51 ] Zdravko Andric then testified in Chief with the assistance of a Croatian Interpreter. He testified that he is 51 years of age, divorced, has three children and works in the construction business with aluminum siding for roofs. On June 19 and 20 of 2011 he had worked during the day on June 19 in Milton. He got off work about 8:00 p.m.

He said that he then drove towards his home from work and he knew that he had stopped at a gas station and bought some cigarettes and gas, and then slowly proceeded towards his home from Milton. [ 52 ] He explained that he went home first and changed his clothes and had some dinner. After dinner he thought about where he would like to go and he believed that around a quarter to ten he went to a bar that he had heard about.

He denied consuming any alcoholic beverages before arriving at the bar. [ 53 ] He stated that he was alone when he entered the bar and that approximately 30 minutes transpired between his time of entry of the bar and the time when the police officer actually pulled him over in the traffic stop later. [ 54 ] He testified that he did consume alcoholic beverages at the bar. Mr. Daley asked him to describe his drinking pattern, and I will quote his answer from the April 8, 2013 transcript as follows at page 97: When I, when I came to the bar initially, I had maybe some drinks, two, two or three.

It’s like an alcohol beverage. I don’t know how you call them, shots or whatever. And then I had one or two beers after. And then because, and then because there were no – not so many people inside of, of the club, sometime after 10:00 I just left the club. [ 55 ] Mr. Daley asked him if he had consumed any alcoholic beverages in his vehicle after leaving the club and Mr. Andric denied doing so. Mr. Daley asked him to describe the alcoholic beverages that he consumed that were not beer. Mr. Andric said that they were like a cognac or something. He did not know. He said “like a brandy”.

He was asked how many of those beverages he had consumed and he said, “Before the beer, maybe three, three, four shots maybe”. [ 56 ] Mr. Daley completed his examination in Chief and I mentioned to him that just a few moments earlier Mr. Andric had said that he had consumed two or three of such drinks before his beers and that now he was saying three or four. Mr. Daley simply confirmed that the Court had heard the evidence correctly. [ 57 ] In cross-examination by the Crown, Ms. McGuigan spent some considerable time questioning Mr.

Andric about the route that he had taken from his work to his home in Stoney Creek from Milton and suggested to him that he would have driven right past the bar in question, Solid Gold in Burlington, at least right past the Waterdown Road exit that would have taken him to the bar. [ 58 ] She then suggested to him that he never really went home to change at all, to have dinner and that, in fact, he had just driven directly to the bar from his work.

Obviously the import of these questions was to suggest that he would have had a lot more time in the bar to have consumed his alcoholic beverages than what he had testified he had during his evidence in Chief. Mr. Andric denied that suggestion, but he did given an interesting answer in doing so; “No, because if I went directly to the bar, how, how would I get to the bar at nine o’clock? Then I would’ve been much earlier to that bar”. I say that the answer was interesting because he had testified in Chief that he arrived at the bar at about 9:45 or a quarter to ten. [ 59 ] Ms.

McGuigan then took him through his activities from the moment that he entered the bar. He said that he had first gone to the patio outside because he wanted to smoke and there was no smoking allowed inside the bar. After having his smoke, he passed by the bar and sat in the corner of the bar area. He denied having consumed any alcoholic beverages while outside on the patio having a cigarette. [ 60 ] The Crown asked him when he ordered his first drink in terms of the time and Mr. Andric said that he could not exactly say, but maybe a quarter to ten or maybe ten to ten.

The Crown asked him how long it took him to smoke his cigarette on the patio before ordering his first drink and Mr. Andric said that he did not really finish the entire cigarette, maybe only half of it and he threw it away. The Crown then again suggested to him that it could have been as late as ten to ten when he first ordered a drink and he said that that was possible and then he said “10:10 maybe order, I don’t know”.

[ 61 ] He confirmed that he was waited upon at his table and he also stated that once he passed by the bar and even before he had taken a seat, he was noticed by the staff and they brought the drinks immediately. He said the drinks are ordered as soon as you get there.

Naturally the Crown wondered how the waiter would know what he wanted to drink and he said that he was asked as soon as he walked by the bar and he told them what he wanted to drink. [ 62 ] The Crown asked him if his seat allowed him to have a view of the entertainment provided by the club and wanted to know whether that was the reason he had driven all the way back to Burlington from his home in Stoney Creek after his work day, because of the entertainment available. Mr. Andric agreed and said he just wanted to see who was there and what kind of people were there.

It should be noted that this particular bar in Burlington, Solid Gold, is known by the colloquialism of an exotic dancer bar. [ 63 ] The Crown then asked a question and Mr. Andric provided an answer that can really only be properly summarized by direct quotation from the transcript: Q. Okay, and because it’s a long way to go just for a cognac, there was more to it than that, correct? A. Yes, yes. Maybe three to four cognacs and those two beers that I mentioned. [ 64 ] The Crown then suggested to him that he was telling the Court that he consumed two beers, but Mr.

Andric pointed out that he really meant to say that he consumed a beer and a half. He said although two beers had been given to him, he left half of one of them on the table. [ 65 ] He described the cognacs as being shots, but he was not certain of the exact quantity in a shot. However, he did say that it was not a big shot, and that it was a small shot which only took him maybe less than three minutes to consume.

The Crown asked him if he was accustomed to drinking cognac and he said that he was and that back home they call it something similar like brandy or homemade brandy. [ 66 ] He agreed with the Crown’s suggestion that he was planning to drive home after he finished drinking at the bar. He denied that he consumed more drinks than he had planned to have.

He denied that he had been distracted by the entertainment and, therefore, may have perhaps overindulged in his alcohol consumption and he said he did not think that the alcohol that he had consumed had affected him because he was in good control when he left to drive home. [ 67 ] The Crown asked him if he agreed with P.C. Urie that he had been seen leaving the bar at 10:11 and he agreed. The Crown directly suggested to him that he was making up the fact that he had consumed perhaps as many as five and a half drinks, according to his testimony, in as little as 20 minutes or so at the bar.

He disagreed. [ 68 ] The Crown then asked him when he had ordered his second drink, and he said by the time that he had finished his first drink the second drink was already ordered and that was because just as he was about to finish the first one with only one sip left, he ordered a second one. He said he might have touched the bar with his arm, since he was sitting right beside the bar, in order to get the attention of the bartender. The Crown suggested to him that he would have been pacing his drinks by spreading them out a bit and he agreed by saying, “During that short period, yes, yes, yes.

During that short period of time, yes. And then after I finished, yes, within five, six minutes, yes, I did leave”. He said that the cognacs that he had consumed were all consumed within a 10-minute period and he knew that the half beer that was left was some time just after 10:00 p.m. [ 69 ] The Crown then asked him if he was telling the Court that he had consumed four shots of cognac within 10 minutes and Mr. Andric said that it was three cognacs.

He said that he was sure that there were three and, in addition, the two beers from which he had left the half beer. [ 70 ] Naturally, the Crown asked him why had had initially testified that he had had three or four cognacs if he was so certain that it was only three and Mr. Andric answered that he cannot recall every particular detail, and when the police officer stopped him he was really confused by being pulled over suddenly just as he had left the bar. [ 71 ] Finally the Crown asked him the question that the Court had in its mind and that was why he had left the half beer unconsumed on that table.

He said that he just simply felt that he did not need it and he did not any longer feel like drinking. He pointed out that there were only a few people in the bar and it was not very interesting to cause him to stay any longer. [ 72 ] The Crown asked him specifically if he had left the bar at that time because he had concluded that he had had enough alcohol to drink, and he agreed and said that he felt it was enough and that is why he left the half beer on the table.

However, when the Crown asked him if he was beginning to feel the effects of the alcohol in his system when he left the bar he denied that he had been and said he did not feel it at all and again repeated that he just did not feel like finishing that beer. [ 73 ] The Crown then asked him why he switched from cognac to beer at the bar and he explained that that was his drinking pattern. When he has a few drinks he usually has a shot and then takes a beer. The Crown suggested directly that he had the cognacs at his house and not at the bar, but Mr.

Andric denied that suggestion. [ 74 ] The Crown then suggested that he must have realized that he was going to be driving with too much alcohol in his system after he had had the number of drinks that he has testified he consumed at the bar and he agreed. The Crown asked him why, then, did he drive and he said because he did not want to get drunk and he was still in control when he left. [ 75 ] The Crown wanted to know if this drinking pattern that he was describing was common for him. Mr.

Andric said that it was not necessarily common, but sometimes on the weekend or when he’s not working he will take a shot of cognac and one or two beers. The Crown wanted to know if there was anything special for him about this particular night in his life and he said, “What can I say? Nothing. It was just some time before that that I separated from my wife. Maybe just the thoughts about it, that – what can I say?” [ 76 ] He also agreed that he felt a little bit lonely that night because it happened to be Father’s Day and he was not with his

children. Again the Crown persisted in asking him if he had consumed alcohol at home because he felt lonely when he had dinner, but Mr. Andric steadfastly denied that he had done so as he had already done two or three times in his testimony. [ 77 ] The Crown again suggested to him that he was actually at the bar longer than he was admitting, but Mr.

Andric denied that suggestion and again repeated that he had only arrived at the bar at the time that he testified he had done so and certainly no longer than that time. [ 78 ] Eventually the Crown got to the essence of the matter and reminded him that he had told P.C. Martin, as we had seen on the breath room video, that he consumed one beer at Solid Gold. His response to that question was that “When the officer stopped me I, I was kind of confused, yes”. Ms. McGuigan then reminded Mr. Andric that she was talking about his answers on the video and not obviously his response to P.C.

Urie at the scene where he was stopped much earlier. [ 79 ] The Court then confirmed with Mr. Daley that he was making an express admission of voluntariness on behalf of Mr. Andric with respect to any discussions that he had engaged in with P.C. Martin in the breath room. Therefore, he agreed that there should be no constraint upon the Crown in cross-examining Mr. Andric on those utterances. The Crown then made it clear to Mr. Andric that she was questioning him about the statements that he had made to P.C. Martin as the Court had seen on the video of the breath room. [ 80 ] The Crown asked Mr.

Andric to explain why he had told P.C. Martin on the video that he had only consumed one beer at the bar. The accused responded by saying that he had been kind of confused when he was stopped and brought to the station, but when he was asked what he had had to drink he was referring to the last beer that he had ordered. The Crown wondered why he had referred to it as a beer as opposed to a half beer because he had testified that he left half of the last beer on the table. The accused said that he could not determine a beer and a half and he was not measuring it.

He just said it was a beer. [ 81 ] However, he next admitted to the Crown, and of course it was obvious from the video, that he had never mentioned the cognac shots to the breath tech officer. He agreed with the Crown’s suggestion that he had been worried about the consequences of telling him about the cognac. The Crown suggested that he was very careful to make sure he had left that part of his drinking out when he was speaking with the officer, but the accused said that he may have been careful or perhaps it might have been a case of misunderstanding the question.

He said that the officer asked him, “What did you drink at the bar?”, so he said, “I drank beer”. The Crown, of course, jumped on that response and suggested to him that the reason he did not mention cognac to the officer was because he had consumed the cognac somewhere else other than in the bar. However, the accused maintained his position that he had consumed the cognac shots at the bar, as well as the beer, but he just did not mention every drink that he had consumed at the bar.

He did say that he had told the Court about all of the drinks that he had consumed in the bar on that day. [ 82 ] The Crown suggested that he seemed to be testifying that he was hoping to get home before the alcohol “hit” him, and he agreed with that suggestion when referring to why he felt as if he could drive away from the bar to his home even after supposedly consuming the cognacs and the beers that he had testified he had consumed. [ 83 ] The Crown suggested to him that, in fact, his memory of the events had been affected by his consumption of alcohol, and the accused’s response to that suggestion was, “Well, I can’t say”.

When the Crown then asked if it was possible, he said, “I don’t think it’s due to, due to alcohol because I know that I felt, I felt well, but it has been a long time since then”. [ 84 ] This concluded the cross-examination by the Crown of the accused and Mr. Daley did not have any questions in re- examination. [ 85 ] I then asked some questions of Mr. Andric to try to clarify what he was telling the Court about his consumption of alcoholic beverages at the bar. First, I asked him if I had understood his evidence correctly to be that it could have been as late as 10:00 p.m. when he finished his first cognac.

He said that he did not think it could have been as late as 10:00 p.m. I was unable to obtain an agreement from him that he had earlier testified in cross-examination that it could have been as late as 10:00 p.m. when he finished his first cognac. [ 86 ] However, he did agree with my suggestion that he had testified that it would take about or maybe three minutes to drink the amount of cognac that he received in each shot. He pointed out that although a shot of cognac is not a large amount, you tend to sit and take a sip when drinking it.

Again, I reminded him that I was only trying to repeat what I believed to have been his earlier evidence and at that point he agreed with the three-minute estimate. He also agreed that each of the cognacs would have taken approximately the same time per drink to consume. [ 87 ] He then said that he would have thought that his last cognac had been completed somewhere around ten o’clock because after that he had a beer and a half before he left the bar.

I then asked him to agree that he was testifying that the three cognacs would have taken approximately nine minutes or so to consume, and he agreed, but he also added this particular answer: A. From quarter to 10:00 – Your Honour, from quarter to 10:00, let’s say when I arrived in that bar, until ten o’clock, yes, realistically, I could have taken those drinks around 10 o’clock and then for those five, six minutes, maybe that beer and a half. This is how I estimate it.

Maybe, maybe my – maybe the way that I’m offering and explaining it – but let’s say that I went there at quarter to 10:00, which is, which is my assumption, I think that the cognacs took about what Your Honour is saying, and then there were those minutes after 10:00 that I had the beers, yes. ... Because I arrived there about quarter to 10. [ 88 ] I then asked him if he was testifying that he had ordered the first beer as soon as he had completed drinking the last of the cognac shots. He said that that was what he was saying, and actually before he finished the previous drink he would order the next one.

I clarified with him that he was testifying that even before finishing the third cognac he had ordered the first beer and he said that that

was correct. [89] However, with respect to the beers he said that he finished his first beer and then ordered the second one and onlyconsumed half of that beer before he left the bar. I then asked him if he could estimate how long it took him to consume the entire firstbeer before he ordered the second beer, and his answer was, “Depends from, from the mood, I guess, depends how you feel”. I thenasked him if he was telling the Court that he did or did not have any recollection of how long it had taken him to drink that entire firstbeer and he said that he could not exactly recall.

He then added, “It’s been a long time”. [90] When invited, neither counsel had any questions arising out of the Court’s questions for clarification. Mr. Daleyinformed the Court that he was closing the case for the defence and Ms. McGuigan informed the Court that she was not calling any replyevidence. Mr. Daley again confirmed that he had abandoned the s. 8 Charter argument with respect to the ASD mouth alcohol issue and,therefore, submissions would be made on the merits of the charge exclusively. Since it was 4:35 p.m. in the court day at that point,neither Mr. Daley, nor Ms.

McGuigan, pressed to make submissions at that time. [91] Before breaking for the day and scheduling another day for the submissions, Mr. Daley clarified his position. He re-visited his earlier answer to the Court’s question about the type of defence that he was presenting and clarified that, in his opinion, hisdefence had nothing to do with the case of R. v. St-Onge Lamoureux, supra, because this was not an evidence to the contrary case. [92] He said that the case would be really about two things.

First, he asked the Court to forget about the defence evidenceand simply ask the question of whether or not the evidence follows the law as set out in R. v. Grosse, (ON CA),[1996] O.J. No. 1840 because the Crown has to prove the underlying assumptions relied upon by an expert to establish its case when thebreath tests are outside of the two hours. He emphasized that the defence has no onus to prove anything and that the Crown has to provethat there was no large amount of alcohol (bolus drinking) within the preceding 30 minutes of the time when Mr. Andric was stopped byP.C.

Urie after he left the bar in his vehicle. Mr. Daley submitted that the existence of the utterances by Mr. Andric to P.C. Martin in thebreath room interaction as seen on the breath room video would prevent the Crown from being able to disprove that issue. [93] To quote Mr. Daley from page 127 of the transcript, he submitted: ...and if that’s not the case, then the fact – whatever, the details of my client’s drinking – if there’s any possibility that it happened in thattimeframe, it’s certainly a large amount, and with the modified report, the Crown’s dead. [94] At that point I reminded Mr.

Daley that I would be receiving his formal final submissions at a later date and I invited himto re-visit that submission again and, of course, he agreed to do so. [95] Ms. McGuigan expressed the point of view that Mr. Daley seemed to be using the utterances of Mr. Andric for the truthof their contents in order to argue that the Crown would be estopped from succeeding in satisfying its burden of disproving the bolusdrinking.

Therefore, she requested time to prepare submissions and also said that she genuinely did not grasp the use that he was askingthe Court to make of the statements to the technician. [96] At this point Mr. Daley stated that he was not asking the Court to accept the utterances for the truth of their contents. Inother words, he was not asking the Court to accept that Mr. Andric had only consumed one beer at the bar. He pointed out that it wasclear from the totality of the evidence that that particular response would have to be incorrect because of the readings obtained from theIntoxilyzer. [97] Mr.

Daley then crystallized the essence of his argument by stating that the Court should have no trouble accepting thatMr. Andric had in his system a minimum of five and a half to six standard drinks at the point in time when he provided his breathsamples. Therefore, he submits that the Crown has to prove beyond a reasonable doubt that at least three and a half to four of thosedrinks did not go into his system in the 30 minutes before he was stopped by the officer. Mr.

Daley and I then mutually apologized toeach other for even making reference to the St-Onge Lamoureux, supra, decision earlier in our discussions. [98] Ms. McGuigan then responded by saying that using evidence for the truth of its contents does not mean it is true. Shesaid that the evidence is being used for a particular purpose and that is exactly the problem that the Crown foresaw with this particulardefence argument. Ms. McGuigan submits that if the evidence is accepted and “put into the mix”, that means it is being used for thepurpose of assessing it for the truth of its contents. Ms.

McGuigan then stated, “If I’m right, then Mr. Daley can’t have that evidence inthe ‘hopper’ at all”. [99] In another attempt to clarify his position, Mr. Daley said; What I’m saying is that I’m asking the Court to accept as a truthful statement my statement that there was a statement by the defendantindicating recent drinking. That is a truthful fact. It matters not, in my respectful submission to my argument whether or not thatstatement was true. If that statement was made and the Crown can’t refute it, they cannot succeed if Grosse is still the law.

And thatwas always the case. [100] After consulting with the trial coordinator, June 18, 2013 was selected as the date when the Court would receive finalsubmissions. [101] On June 18, 2013, although the accused had testified, Ms. McGuigan agreed to make her submissions first and the Courtand Mr. Daley agreed that she would have leave to reply to Mr. Daley if necessary.

The Accused’s

a) Alcohol Influence Reporte Utterances Position of the Crown [102] Ms. McGuigan submits that the defence cannot have the accused’s utterances to P.C. Martin during the questions andanswers of the Alcohol Influence Report in the Intoxilyzer room as depicted on the video between the two breath tests admitted for thetruth of their contents. She argues that they are self-serving statements made out of court by the accused and they remain within theCrown’s prerogative to attempt to introduce them if the Crown desires to do so. Her authority for that proposition, she argues, is the caseof R. v. Edgar, supra. Ms.

McGuigan refers the Court to paragraph 35 of that judgment as the basis for her argument that the utterancesmade by Mr. Andric to P.C. Martin in particular cannot be admitted by the Court as evidence to be assessed for the truth of their contentsand to be relied upon by the defence for that purpose: It is well recognized, however, that the prior consistent statements of an accused are not always excluded. Two established exceptionshave already been mentioned. First, where an accused's prior consistent statement is relevant to his or her state of mind at the time theoffence was committed, it may be admitted.

Second, where the Crown alleges recent fabrication, the accused may adduce evidence of aprior consistent statement to rebut the allegation. A third exception is made for "mixed" statements that are partly inculpatory and partlyexculpatory. Where the Crown seeks to adduce evidence of such a statement, the inculpatory portion is admissible as an admissionagainst interest and, as a matter of fairness to the accused, the Crown is required to tender the entire statement, with the exculpatoryportion being substantively admissible in favour of the accused: Rojas, at para. 37.

A fourth exception is that the prior statement will beadmitted where it forms part of the res gestae, in other words, where the statement itself forms part of the incident that gives rise to thecharge: see Graham; R. v. Risby, (SCC), [1978] 2 S.C.R. 139. [103] More specifically, the Crown submits that there is no appellate authority that permits the defence to introduce suchutterances or statements to support a submission that the Crown has not been able to disprove the presence of bolus drinking in theevidence of the trial. She refers the Court to the decision of R. v. Paszczenko; R. v.

Lima, 2010 ONCA 615 , [2010] O.J. No.3974, a 2010 decision of the Ontario Court of Appeal. Ms. McGuigan relies on a number of paragraphs in that decision, but, inparticular, she refers the Court to paragraph 34 wherein the Court of Appeal stated: The common law presumption advocated by the Crown and rejected by the Court in Grosse, is not the same as the practical evidentiaryburden to come forward with some evidence that arises through the application of the common sense inference described above.

InGrosse, the Court spoke of the accused having the burden of proof on the issue and of the potential creation of a presumption of law thatwould deem no bolus drinking to be proven in the absence of evidence to the contrary. This is the language of persuasion.

Here, theeffect 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 to someevidence on the basis of which it can be said the issue of bolus drinking is alive on the record. [104] Furthermore, the Crown refers the Court to the rationale expressed by the Court of Appeal on this issue in paragraphs 35,36, 37 and 38: 35 Chief Justice Dickson distinguished between a persuasive burden (which, constitutionally, cannot be shifted to the accused) and anevidentiary burden (which in some circumstances may be) in R. v.

Schwartz, (SCC), [1988] 2 S.C.R. 443. He pointedout that the former requires proof of the existence of a certain set of facts whereas the latter does not require the party with the evidentialburden to convince the trier of anything. At p. 466, he said: Judges and academics have used a variety of terms to try to capture the distinction between the two types of burdens. ... I prefer to usethe terms "persuasive burden" to refer to the requirement of proving a case or disproving defences, and "evidential burden" to mean therequirement of putting an issue into play by reference to evidence before the court.

The party who [page 467] has the persuasive burdenis required to persuade the trier of fact, to convince the trier of fact that a certain set of facts existed. Failure to persuade means that theparty loses. The party with an evidential burden is not required to convince the trier of fact of anything, only to point out evidence whichsuggests that certain facts existed.

The phrase "onus of proof" should be restricted to the persuasive burden, since an issue can be put intoplay without being proven. [Emphasis added.] 36 See also, Colvin, E. and Anand, S., Principles of Criminal Law, 3rd ed. (Toronto: Thomson Carswell, 2007) at pp. 79-85. 37 For the reasons explained above, applying the common sense inference where there is no evidence of bolus drinking incircumstances where the Crown is required to prove the negative (i.e., no bolus drinking) is simply an example of the Schwartz notion ofan evidential burden, in my view.

It does not involve attaching an onus of proof to the accused or the creation of a presumption ordeeming provision in the sense forbidden in Grosse.

On that basis, it would be more straightforward, it seems to me, to refer to thisevidentiary exercise as a shift in the practical evidentiary burden on the basis of which - absent something to put bolus drinking in play -an inference may (but not must) be drawn. 38 As noted above, the Court in Grosse resolved the issue before it by resorting to the common sense inference that normal people donot ingest large amounts of alcohol shortly before getting into their car and driving. This Court has adopted that same technique in Halland Bulman... [105] In conclusion, Ms.

McGuigan argues that the evidence given by the accused has to be accepted as being credible evidenceby the Court on the issue of bolus drinking in order to amount to any evidence that should make it a live issue in accordance with theprinciples established in R. v. Grosse, supra, and R. v. Lima, supra. [106] In this particular case, Ms.

McGuigan asks the Court to find that on a careful assessment of the accused’s evidence theCourt should conclude that this evidence of his consumption of alcoholic beverages in the bar during the time periods to which he hastestified is absolutely incredible and, therefore, should not be able to meet that standard. She asks the Court to find that the accused wasevasive throughout his cross-examination on that issue.

[107] The Crown also submits that there is very little circumstantial evidence which would support the potential existence of thebolus drinking issue in the sense that there was evidence of deviant driving, she submits, by Mr.

Andric before he was stopped by P.C.Urie and that, she submits, is inconsistent with bolus drinking since, if there had been bolus drinking, the alcohol consumed should nothave produced any effects upon the accused’s driving within that short period of time. [108] Secondly, she submits that the totality of the evidence in this case does not reveal any manifested increase of the effects ofalcohol upon the accused between the time when P.C. Urie dealt with him and the time when P.C.

Martin dealt with him as seen in thebreath room video some considerable time later. [109] Thirdly, she refers the Court to the evidence that there were no alcoholic beverages either empty or full found in his motorvehicle. The Crown submits that the absence of these factors detracts from the viability of the bolus drinking defence and assists theCrown in disproving that issue. Position of the Defence [110] Mr. Daley argues succinctly that this case stands or falls on the evidence of the CFS witness, Ms. Wallage. He refers theCourt to the fact that Ms.

Wallage conceded in cross-examination that if there was any indication that the accused person had consumedmore than two beers within the 15 minutes or so before being stopped by the officer, then she could not do a “read back” withoutconsidering a period of time of less than 30 minutes beforehand. [111] He submits that Ms.

Wallage also agreed that she needs to know the accused’s drinking pattern before his arrest to be ableto include that in her calculation to do a “read back” after eliminating the possibility of bolus drinking. [112] Therefore, if that Alcohol Influence Report evidence is inadmissible, the Crown cannot disprove the bolus drinking whichMr. Andric has testified occurred and it is the Crown’s onus to disprove that issue, argues Mr. Daley. Therefore, he argues for both ofthese reasons, Ms.

Wallage’s evidence decides the issue in favour of the defence argument that the Crown has not and cannot, on thetotality of the evidence in this case, disprove the bolus drinking issue which Mr. Daley submits is properly before the Court. Analysis The A.I.R. Utterances of the Accused [113] I agree with the Crown that the utterances made by the accused, not under oath, to P.C.

Martin are inadmissible for thetruth of their contents unless the Crown had declared its intention to introduce them as part of its case, either on consent, or after a voirdire to determine their admissibility in accordance with the established principles governing out of court statements by an accused to aperson in authority. See R.v.Edgar, supra. [114] That, in my opinion, includes the use of them by Mr. Daley in cross-examination of Ms. Wallage. He was obviouslyseeking her agreement, on the basis of the totality of those utterances, that her calculated BAC of the accused at 10:11 p.m., the timewhen P.C.

Urie stopped him, could not be relied upon by the Court to conclude that the Crown had proven beyond a reasonable doubtthat the BAC of Mr. Andric at that time was in excess of 80 milligrams of alcohol in 100 millilitres of blood. The “Bolus” Drinking Issue [115] I find that Ms.

Wallage’s expert extrapolation, or “read back”, as it seems to be called in the vernacular, clearly andunequivocally establishes that the BAC of the accused at 10:11 p.m. was well in excess of the legal limit of alcohol in his blood while hewas operating his motor vehicle, in the absence of any credible evidence of “bolus drinking”, as that concept has been defined in R. v.Grosse, R. v. Lima, R. v. Hall, R. v. Bulman, supra. [116] With respect, I disagree with Mr.

Daley’s argument that I can ignore the credibility or otherwise of the accused’s evidenceat trial wherein he testified about a drinking pattern before his arrest that, if believed, or even if found to be capable of reasonably beingtrue, would cause the Court to conclude that the Crown had disproven, as would be its onus, the issue of “bolus drinking” which wouldhave been placed on the evidentiary table by the evidence of the accused. [117] Therefore, I have carefully analyzed the evidence of the accused, both in accordance with the principles in R. v. Lima,supra, and also in R. v.

W.D. (1991), (SCC), 63 C.C.C. 397 S.C.C.. I find, on the totality of the evidence that hisevidence of his alcohol beverage consumption pattern while at Solid Gold is completely lacking in an air of reality. I quite simply do notfind it to be credible or reliable. I agree with the Crown that I should, and I do, reject it. I find that his evidence was inherentlyinconsistent, evasive, and opportunistic throughout. [118] With respect to circumstantial evidence of “bolus drinking”, as also referred to in Lima, supra, there was no evidence ofalcohol beverage containers found in his vehicle.

I also find that there is no evidence to suggest that he had access to alcohol from thetime of his arrest to the time of the breath tests.

I also find that he exhibited a slight degree of aberrant driving from the evidence of P.C.Urie, at least enough to cause the officer to execute the traffic stop to investigate him a very short time after he had left the bar. [119] While there was direct evidence from the officer that the accused had just emerged from an establishment that servedalcoholic beverages, even if that would be considered to be enough, standing alone, to put the issue of “bolus drinking” in play, and I amnot sure that it would, my finding that his evidence of the quantity and pattern of his “bolus” consumption of alcoholic beverages duringhis time in the bar is utterly incredible, in my view, completely removes the issue from the judicial playing field.

[ 120 ] I do agree with Mr. Daley that the evidence of Ms. Wallage decides this case in the sense that the only element of the alleged offence that Mr. Daley is disputing is her expert toxicological opinion of the accused’s BAC at the time when he was stopped driving after he had left Solid Gold by P.C. Urie. Her opinion, assuming as she did, the absence of “bolus drinking”, was dependent upon the following assumptions: Given the above information, the projected blood alcohol concentration (BAC) at approximately 10:14 p.m. is 130 to 175 milligrams of alcohol in 100 millilitres of blood (mg/100 mL).

This projected range is independent of the gender, height, weight and age of the individual, but is dependent on the following additional factors: 1. A rate of elimination of alcohol from the blood ranging from 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour (mg/100 mL/hr). 2. Allowance for a plateau of up to two hours. 3. No consumption of large quantities of alcoholic beverages within approximately 15 [30] minutes prior to the incident. 4.

No consumption of alcoholic beverages after the incident and before the breath test(s). [ 121 ] I have informed my judgment by her evidence in cross-examination that she would not attempt to do a “read back” if there was evidence of bolus drinking during the 30- minute period before an accused had last operated a vehicle. [ 122 ] Ms.

Wallage also stated: A male who is 5’9” in height and weighs approximately 194 lbs could have Intoxilyzer 8000C results as detected but be at 80 mg/100 mL at the time of the incident if he had consumed between 3½ or 4½ standard drinks either just prior to the incident (within approximately 15 [30] minutes) or after the incident and before the Intoxilyzer tests. A standard drink is defined as 1½ fl. oz of spirits (40% alcohol v/v), a bottle of beer (12 fl. oz., 5% alcohol v/v) or a glass of wine (5 fl. oz, 12% alcohol v/v). [ 123 ] I find that the Crown is entitled to rely upon that opinion of Ms.

Wallage that the accused’s BAC at 10:14 p.m. was 130 to 175 milligrams of alcohol in 100 millilitres of blood in the absence of any credible evidence of “bolus drinking”, as I have now found to be the case. Therefore, I find that the Crown has proven this charge pursuant to s. 253(1) (

b) against Mr. Andric and I find him guilty as charged an a conviction is registered. [ 124 ] This completes my written reasons for my oral finding of guilt rendered without reasons on August 27, 2013. Released: September 4, 2013 Signed: “Justice F.L. Forsyth”