Ontario Criminal


Breathalyzer

PRESUMPTION
Expert evidence highlighted importance of accuracy and reliability

Accused appealed her conviction for driving “over 80”. Accused submitted that trial judge erred in holding that expert evidence concerning concentration of alcohol in her blood at time of driving, which was based on her testimony as to her pattern of drinking, could not raise reasonable doubt about her guilt because projected blood alcohol levels “straddled” 80 milligrams of alcohol in 100 millilitres of blood threshold. Trial judge relied on decision of the Supreme Court of Canada in R. v. Gibson for this proposition. However, in subsequent case of R. c. Ibanescu which was decided after trial judge delivered her judgment, court clarified that such “straddle” evidence is capable of raising reasonable doubt. Crown called toxicologist to provide expert evidence about what accused’s blood alcohol level would have been at time of driving. Toxicologist was also questioned about accused’s blood alcohol concentration (“BAC”) based on various scenarios about time of the accused’s drinking and time of driving, based on assumption that she consumed two pints of five per cent alcohol beer. This resulted in “straddle” evidence at issue. Accused testified that she only had two beers before she left bar and man she had been at bar with gave testimony that was vague but somewhat corroboratory. Based on drinking scenarios corresponding to accused’s evidence that she consumed two beers, toxicologist testified if drinking began at 7:00 p.m. accused’s BAC would have been between 2 and 87 milligrams per 100 millilitres at 3:30 a.m. If drinking started at 6:00 p.m. it would be between 0 and 72 milligrams per 100 millilitres. If time of driving was 4:00 a.m. two ranges would be 0 to 72 and 0 to 82 milligrams per 100 millilitres. Appeal dismissed. Trial judge rejected accused’s evidence of consumption and court found no error in doing so. Toxicologist’s evidence showed that if accused had even substantial portion of one other beer she would have been over legal limit on any reasonable scenario. Trial judge was not entitled to take that evidence into account in assessing accused’s credibility in relation to whether breath test results were accurate and she did not do so. However, that evidence demonstrated how imprecision with respect to times of drinking and amounts consumed could impact adversely on findings of credibility and reliability. Court saw nothing in criticized portion of trial judge’s reasons that fell outside parameters of such accepted means of assessing evidence. Expert evidence highlighted importance of accuracy and reliability with respect to amount of alcohol consumed.

R. v. Denduk

(Aug. 7, 2014, Ont. S.C.J., F. Dawson J., File No. SCA(P) 380/13) Decision at 107 W.C.B. (2d) 457 was affirmed.  116 W.C.B. (2d) 62.PRESUMPTION

Expert evidence

highlighted importance of

accuracy and reliability

Accused appealed her conviction for driving “over 80”. Accused submitted that trial judge erred in holding that expert evidence concerning concentration of alcohol in her blood at time of driving, which was based on her testimony as to her pattern of drinking, could not raise reasonable doubt about her guilt because projected blood alcohol levels “straddled” 80 milligrams of alcohol in 100 millilitres of blood threshold. Trial judge relied on decision of the Supreme Court of Canada in R. v. Gibson for this proposition. However, in subsequent case of R. c. Ibanescu which was decided after trial judge delivered her judgment, court clarified that such “straddle” evidence is capable of raising reasonable doubt. Crown called toxicologist to provide expert evidence about what accused’s blood alcohol level would have been at time of driving. Toxicologist was also questioned about accused’s blood alcohol concentration (“BAC”) based on various scenarios about time of the accused’s drinking and time of driving, based on assumption that she consumed two pints of five per cent alcohol beer. This resulted in “straddle” evidence at issue. Accused testified that she only had two beers before she left bar and man she had been at bar with gave testimony that was vague but somewhat corroboratory. Based on drinking scenarios corresponding to accused’s evidence that she consumed two beers, toxicologist testified if drinking began at 7:00 p.m. accused’s BAC would have been between 2 and 87 milligrams per 100 millilitres at 3:30 a.m. If drinking started at 6:00 p.m. it would be between 0 and 72 milligrams per 100 millilitres. If time of driving was 4:00 a.m. two ranges would be 0 to 72 and 0 to 82 milligrams per 100 millilitres. Appeal dismissed. Trial judge rejected accused’s evidence of consumption and court found no error in doing so. Toxicologist’s evidence showed that if accused had even substantial portion of one other beer she would have been over legal limit on any reasonable scenario. Trial judge was not entitled to take that evidence into account in assessing accused’s credibility in relation to whether breath test results were accurate and she did not do so. However, that evidence demonstrated how imprecision with respect to times of drinking and amounts consumed could impact adversely on findings of credibility and reliability. Court saw nothing in criticized portion of trial judge’s reasons that fell outside parameters of such accepted means of assessing evidence. Expert evidence highlighted importance of accuracy and reliability with respect to amount of alcohol consumed.

R. v. Denduk (Aug. 7, 2014, Ont. S.C.J., F. Dawson J., File No. SCA(P) 380/13) Decision at 107 W.C.B. (2d) 457 was affirmed.  116 W.C.B. (2d) 62.

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