Evidence of impairment found to be insufficient to support conviction for impaired driving in recent appeal case 

Milligan's Criminal Law Advisor

R. v. Agrawal (2014), 2014 CarswellOnt 14486, 2014 ONSC 5843 (Ont. S.C.J.)

7. — "Evidence to the contrary" cannot depend on an accused's "drinking habits" An Ontario summary conviction appeal decision shed light on what "evidence to the contrary" is not after R. v. St. Onge, [2012] 3 S.C.R. 187 ended the "Carter" defence.

The appellant was convicted for the offence of "over 80 mgs" but acquitted of the offence of impaired driving, because the evidence of impairment was not sufficient to support a conviction for impaired driving. He appealed his conviction for excess alcohol.

He was stopped by police officer who noted a strong odour of alcohol and a half-open bottle of vodka in the car. The officers made a demand that the appellant provide a sample of his breath into an approved screening device and the appellant failed that test. He was taken to a police station.

The results of his breath tests were 194 and 170 mgs of alcohol per 100 ml of blood. In cross-examination, the breath technician testified that a person with that blood alcohol concentration would be "falling down drunk" (which the appellant was not).

An affidavit from a toxicologist was filed at the trial. It was to the effect that someone with a blood alcohol concentration in the range of the appellant's "would be expected to exhibit obvious signs of impairment such as slurred speech, motor difficulties such as staggering, stumbling and lack of balance while walking".

Friends of the appellant's testified that that he was not an alcoholic and did not drink a great deal, thus casting doubt on the possibility that high tolerance, gained from years of heavy drinking, accounted for the lack of indicia of impairment. Thus, because a man like the appellant would be expected to show marked signs of impairment at the BAC found from breath testing — and there were no marked signs of impairment — something may well have gone wrong with the breath tests.

The trial judge rejected the defence evidence because it was not credible or reliable and found, at all events, that it amounted to an "indirect Carter defence".

Goldstein J., who heard the summary conviction appeal, said that a defence meant to cast doubt on the accuracy of breath testing that relies on "evidence of a person's drinking habits" is not "evidence to the contrary". To quote Justice Goldstein at paragraph 33, "I agree with the trial judge that the Appellant's attempt to raise a reasonable doubt by calling evidence of his drinking habits amounted to an indirect attempt to raise a Carter Defence."

This case might be regarded as an extension of R. v. Latour (1997), 34 O.R. (3d) 150 (Ont. C.A.), in which the Ontario Court of Appeal held:

 ... this evidence is not capable of constituting "evidence to the contrary". Even accepting as a fact that a "normal, average" person with the same breathalyzer readings should exhibit stronger indicia of impairment than that observed in the respondent, this fact is of no consequence in the absence of evidence on the respondent's tolerance to alcohol. This opinion evidence, as presented, without any connection to the respondent, is merely speculative and of no evidentiary value.

Latour was not cited by the learned summary conviction appeal court judge.

Quaere: What if the appellant called a toxicologist at trial in addition to his friends? The toxicologist gave evidence that he conducted sobriety tests on the appellant at a blood alcohol concentration lower that the range he was said to be by the police and found profound intoxication? One would think that this is very probative and capable of raising a reasonable doubt as to the accuracy of the breath results.

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