Empty beer cans in vehicle raised air of reality that accused engaged in bolus drinking
By Jeffrey Milligan
A judge of the Ontario Court of Justice acquits a defendant of “over 80 mgs” where there was an air of reality that he might have engaged in “bolus” drinking
When police take the first breath sample of an accused more than two hours from the time of driving, the Crown does not have the advantage of the “presumption of identity” afforded by s. 258(1)(c) of the Criminal Code
. In other words, the accused’s blood-alcohol concentration is not presumed to be same as the lowest of the results obtained by the breath tests. The accused will be entitled to an acquittal on a charge of over 80 mgs unless the Crown tenders evidence from a toxicologist — in the form of either viva voce
evidence or a report filed with the court — “reading back” the breath results to the time of driving.
In order to “read back” the results of the intoxilyzer tests to the time of driving, toxicologists make four assumptions, one of which is that the accused did not engage in “bolus” drinking (i.e., drink a large quantity of alcohol) just before the time when their blood-alcohol concentration was alleged to be over the legal limit.
A driver could be below the legal limit when, say, he was stopped by a police officer and his blood-alcohol concentration could be over the legal limit at the time of the intoxilyzer tests at the police station if he drank a large quantity of alcohol just before being stopped and that alcohol he ingested, or most it, had not yet been absorbed into his blood.
The Ontario Court of Appeal in R. v. Grosse
(1996), 29 O.R. (3d) 785 called the assumption that the accused did not engage in bolus drinking a “pivotal assumption” and it held that the Crown was required to satisfactorily prove the absence of “bolus” drinking in cases where the first breath test was taken more than two hours from the time of driving. As time went on, however, appellate courts have lowered the bar considerably for the Crown in this regard. In R. v. Paszckenko
, 2010 ONCA 615, the Ontario Court of Appeal held that triers of fact are entitled to make a “common sense” inference of no “bolus drinking” (because people do not ordinarily drink large amounts of alcohol just before getting into a vehicle to drive or while driving) unless the accused can point to something in the evidence that puts the possibility of “bolus” drinking into play or gives it an air of reality.
A recent case from the Ontario Court of Justice sheds light on the pitfalls of filing an expert report in these cases, and in what circumstances the accused may put the possibility that he engaged in “bolus” drinking into play.
The defendant ordered food from a McDonald’s drive-through early one evening and the person he ordered from called police and thought he was “impaired . . . under the influence”. He was stopped by police and the police conducted two breath tests, the first of which was more than two hours from the time the defendant was stopped.
The arresting officer found several empty cans of beer “within reach of the driver” and, according to the trial judge, Justice Rose, at para. 11, “thought it possible that he consumed them while driving prior to being stopped”.
The Crown did not call a toxicologist to testify at the trial but, with the consent of the defence, filed a report from an expert, Dr Mayers, who opined that the defendant’s blood-alcohol concentration at the time he was stopped was in the range of 115 to 170 mgs of alcohol per 100 ml of blood. One of the assumptions that the author relied upon was that the defendant did not drink “large quantities of alcohol” shortly before the incident.
There was evidence at the trial to the effect that the smell of alcohol on the defendant’s breath got stronger as time went on.
Justice Rose acquitted the defendant because he had a doubt that the possibility of “bolus drinking” was satisfactorily rebutted.
First, he pointed out that the toxicologist did not explain what he meant by “large quantities” of alcohol. Second, the evidence raised an air of reality that the defendant may have engaged in “bolus” drinking. Empty beer cans or bottles are evidence that courts have suggested are consistent with “bolus” drinking: see R. v. Calabretta
, 2008 ONCJ 27, and R. v. Grosse, supra. To quote Justice Rose at para. 19:
The combination of empty beer cans in the car and Mr Constable’s breath smelling stronger as time progressed displaces the common sense inference that persons do not consume alcohol in large quantities in a short period of time. In the result, there is evidence before me which is consistent with consumption of alcohol prior to being stopped by Constable Luckasavitch. The 3rd assumption in Dr Mayer’s report is not made out and I accordingly afford the report no weight in evidence. Mr Constable is acquitted of the offence of over 80.
R. v. Constable
, 2016 ONCJ 423, 2016 CarswellOnt 10944