Ontario Criminal


Breathalyzer

PROOF OF BLOOD-ALCOHOL LEVEL
Finding of no bolus drinking was fully supported by evidence

Accused appealed his conviction for driving “over 80”. Accused brought application at trial to exclude certain evidence pursuant to s. 24(2) of Charter alleging breaches of his rights under ss. 8, 9 and 10(b) of Charter. Alternatively, accused applied for remedy pursuant to s. 24(1) of Charter precluding Crown from relying on presumption of identity. Trial judge ruled that accused’s rights under s. 8 of Charter had been violated, but rejected submission that his rights under s. 10(b) had been violated. Trial judge declined to grant remedy under s. 24(2) of Charter, but granted alternative remedy under s. 24(1) of Charter, precluding Crown from relying on presumption of identity. At trial, Crown called expert evidence from toxicologist who opined on blood alcohol concentration of accused at time of driving based on his breath samples. Accused submitted that trial judge erred in accepting expert opinion of toxicologist. Crown filed affidavit of toxicologist on trial. Crown also called witness who adopted opinion of toxicologist and was cross-examined by counsel for accused. Opinion expressed by toxicologist in affidavit was that projected blood alcohol concentration of accused at approximately 11:09 p.m. was 100 to 135 milligrams of alcohol in 100 millilitres of blood. Appeal dismissed. Accused argued that trial judge could not draw common sense inference that accused did not engage in bolus drinking in light of reasonable hypothetical that as little as one drink could have affected projected blood-alcohol concentration. This hypothetical depended on accused falling outside parametres of blood to breath ratio. Trial judge correctly found that there was no air of reality to this suggestion. Assumption of ratio was based on scientific information upon which expert was entitled to rely. Finding that there was no bolus drinking was therefore finding that accused did not drink 2 to 2.75 standard drinks within approximately 15 minutes of driving. This finding was fully supported by evidence which was set out in detailed and thorough reasons of trial judge.

R. v. Jordaan (Nov. 2, 2015, Ont. S.C.J., Forestell J., File No. 5-55/14 SCA) 125 W.C.B. (2d) 611.

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