CANADA PROVINCE OF NOVA SCOTIA 2000 Case #965266-268 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus Jessica Dale KNOX TRIAL DECISION HEARD BEFORE: The Honourable Judge Michael B. Sherar, JPC PLACE HEARD: Halifax Provincial Court #2 DATES HEARD: January 19th, 2001 CHARGE: That she, on or about the 17th day of October, 1999 at or near Halifax, in the County of Halifax, in the Province of Nova Scotia did Have the care or control of motor vehicle while her ability to operate motor vehicle was impaired by alcohol or drug, and thereby caused death to Joan Jeanette LITTLE, contrary to s.255(3) of the Criminal Code; And furthermore, AT THE SAME TIME AND PLACE AFORESAID, did unlawfully cause the death of Joan Jeanette LITTLE by criminal negligence in the operation of motor vehicle, contrary to s.220 of the Criminal Code; And furthermore, AT THE SAME TIME AND PLACE AFORESAID, did have the care or control of a motor vehicle while her ability to operate a motor vehicle was impaired by alcohol or a drug, and thereby caused bodily harm to Raelee KANE, contrary to s.255(2) of the Criminal Code. COUNSEL: Darrell H. Martin, for the Prosecution Stanley W. MacDonald, for the Defence Jessica Dale Knox stands charged that on the 17th day of October 1999, at or near Halifax in the County of Halifax, Province of Nova Scotia she did: Have the care or control of motor vehicle while her ability to operate motor vehicle was impaired by alcohol or drug and thereby caused death to Joan Jeanette Little contrary to s.255(3) of the Criminal Code; AND FURTHERMORE AT THE SAME TIME AND PLACE AFORESAID, did unlawfully cause the death of Joan Jeanette Little by criminal negligence in the operation of motor vehicle contrary to section 220 of the Criminal Code; AND FURTHERMORE AT THE SAME TIME AND PLACE AFORESAID, did have the care or control of motor vehicle while her ability to operate motor vehicle was impaired by alcohol or drug and thereby caused bodily harm to Raelee Kane contrary to section 255(2) of the Criminal Code. At the conclusion of the trial, crown counsel did not seek conviction on the second count of the information; i.e., criminal negligence causing death contrary to section 220, and that charge was dismissed. Viva voce evidence on the two remaining counts was heard on December 13th and 14th, 2000; the Court reserved decision at that time until January 19th, 2001. In the interim, counsel for both parties submitted post-hearing briefs to the Court for its consideration. Jennifer Purdy, 21-year old friend of the accused Jessica Dale Knox, testified that on the evening of October 16th, 1999 she and Jessica drove into Halifax from Terrence Bay in white Corsica motor vehicle. They arrived at the Green Street residence of Denise Hodge around 10:00 p.m. She did not recall taking alcohol to the premises or whether she and Ms. Knox consumed any alcohol at the residence before leaving to attend downtown establishment called the Pacifico. She estimated some six to seven people were in attendance at Ms. Hodge’s apartment, including Ms. Hodge and male friend from the United States called Phil. Ms. Knox’s car was left on Green Street and the group walked to the Pacifico. Ms. Purdy stated the accused had vodka and Sprite at the Pacifico. Ms. Purdy and Ms. Knox walked together to another nightclub called the Palace arriving at 1:30 a.m. and staying until close at 3:30 a.m. She stated she did not drink at the Palace but that the accused, Jessica Knox, ordered beer and set it aside, not drinking. After leaving the Palace they further walked to an area known as the ‘Pizza Corner’, had soft drink and pizza. After 30 to 45 minutes they hired rickshaw to take them back to Green Street. Part way to their destination Jessica Knox, in fact, propelled the rickshaw herself. According to Ms. Purdy, at no time to that point did Ms. Knox have any difficulty in speaking, standing or walking. Ms. Purdy and Ms. Knox arrived at Ms. Hodge’s apartment one-half hour after leaving ‘Pizza Corner’ and with some difficulty, gained admittance. Ms. Hodge met them and Jessica Knox woke up “Phil” who had been visitor of Ms. Hodge’s. Ms. Purdy further states that Phil and Jessica Knox each had beer from the fridge. Ms. Purdy and Phil continued to drink all through the early morning hours until 11:00 a.m. the next day. Ms. Purdy felt that Jessica Knox only had one beer and remembers her leaving the apartment at a.m., which was one-half hour after Denise Hodge had already left the apartment. Ms. Purdy didn’t leave with Ms. Knox because she didn’t know the former was about to depart. Ms. Purdy noted that she was with Jessica Knox all night and Ms. Knox did not sleep at any time they were together. Denise Hodge confirmed that Jessica Knox and Jennifer Purdy showed up at her apartment on Green Street on the evening of October 16th. She recalls they brought six-pack of beer with them. The seven persons at her apartment drank before they went downtown, but she can’t specifically recall if Jessica Knox drank alcohol there or later at the Pacifico. The group departed together for the Pacifico at 10:00 p.m. and Ms. Hodge left the Pacifico in the company of Phil and two others at 1:00 a.m., arriving home at 1:30 a.m. Ms. Hodge felt she herself was intoxicated upon her arrival home. She estimates that at 4:30 a.m. Jennifer Purdy and Jessica Knox arrived at her residence and one-half hour later she overheard voices in her living-room. Phil was having drink with Jessica Knox and Jennifer Purdy. Ms. Hodge tried to get back to sleep but was kept awake. Ms. Hodge observed Ms. Knox spill beer when she tried to sit in rather wobbly rattan chair. She later heard glass break and saw Jessica Knox picking up some glass in the kitchen. Ms. Hodge felt Ms. Knox was very tired and thought she had too much to drink, though she didn’t see her drinking. By 6:00 a.m. on the morning of October 17th Ms. Hodge had had enough of Ms. Purdy, Ms. Knox and Phil sitting around talking. Accordingly, Ms. Hodge left to see her own mother at 7:30 a.m. By the time Ms. Hodge returned to her apartment at 9:00 a.m., Ms. Knox and the white Corsica motor vehicle were gone. Later that morning, after receiving phone call, Ms. Hodge drove out to the Prospect Road to view the scene of the accident involving Ms. Knox. There is no evidence as to the whereabouts or activities of Jessica Knox between 8:00 a.m., when she left Ms. Hodge’s apartment, and 11:00 a.m., the approximate time of the car accident in which Ms. Knox was involved. It is admitted by the defence that the accused, Jessica Knox, was the operator of white Corsica motor vehicle bearing Nova Scotia license plate B2M 469. It is further admitted that as the result of her operation of that motor vehicle, the death of Joan Jeanette Little occurred on October 17th, 1999 and that also bodily harm was caused to Raelee Kane. At approximately 11:00 a.m. on October 17th, 1999 Carolyn McLeod was driving her mother towards Peggy’s Cove. Her mother was visiting Halifax to attend Carolyn’s graduation convocation. Carolyn McLeod noticed white car, some five car lengths ahead of her, go over the centre line of the highway by few inches for approximately 20 seconds. The white vehicle was not speeding, but upon crossing the centre line it came into collision with oncoming traffic travelling in the proper lane and thus causing an accident. The oncoming car went left into ditch. Prior to this, Carolyn McLeod had not taken any particular notice of the white car; it had not been weaving on the roadway nor had it been driven erratically. The road had been clear and the sun was not problem in driving. Ms. McLeod did not notice the driver of the white vehicle but when that vehicle crossed the centre line momentarily, it appeared that the operator of the vehicle did nothing to avoid collision. The road at this point had slight curve though she described the highway itself, as curvy in general. Ms. McLeod did not see the white car collide with second oncoming vehicle until she came up to the scene of the collision. Mrs. Mary Ann McLeod was passenger in the car driven by her daughter, Carolyn McLeod. She noted white vehicle, five car lengths ahead, drift over the centre line for ten seconds or possibly less and felt terrified there would be collision. She hadn’t noted any erratic operation of the white vehicle prior to seeing its tires going over the centre line, nor did she note any braking or swerving of the car to avoid oncoming traffic. She estimated that none of the vehicles involved, including the car she occupied, was speeding. Mrs. McLeod could not see the oncoming cars prior to the accident because of the distance they were ahead. She and her daughter attempted to render assistance to those injured. Mrs. McLeod noted that the driver of the white car appeared unconscious after the accident. Amber Rolfe was passenger in vehicle driven by her boyfriend. Her car was behind the McLeod vehicle travelling in the same direction outbound from Halifax on the Prospect Road. She knew that they were following two cars for period of time, but she was not concentrating on the road and was more interested in talking to her boyfriend. Her attention was drawn to the white car (the Corsica operated by Ms. Knox) when she noticed the driver gradually slump her head down to the right, slow movement consistent with somebody reaching for something. At that point, the white vehicle went over the centre line some one to four feet. The white car hit the first oncoming car, spun, hit the vehicle again and then hit second car. The oncoming cars were in the proper lane. Ms. Rolfe felt that the Knox vehicle went over the centre line as it was going around turn and not on straight portion of the highway. It is acknowledged that the first car hit by the Knox vehicle was occupied by Mrs. Joan Jeanette Little and that the collision caused her death. The second vehicle damaged by the Knox vehicle was operated by Ms. Raelee Kane, who suffered bodily harm as result. Ms. Kane was able to testify and stated she was the owner of Green Ford Escort, license number CRT 254. She was driving from Hatchet Lake to her grandmother’s residence in the company of her two young daughters. She indicated she had stopped at service station for five minutes at 11:00 a.m. Five or six minutes later, while she drove in her proper lane, she heard loud noise and noted something white coming towards her. Prior to this she had not been aware of any cars in front of her. The impact drove her vehicle into ditch on the opposite side of the highway. Ms. Kane’s two daughters sustained bruises. Ms. Kane suffered broken left jaw and left chest injury. She had surgery to drain her joint. She still takes physiotherapy for her jaw and chest and requires anti-inflammatory medications. Constable Gerry Todd, police officer for 24 years, was the accident investigator. He has had training in accident reconstruction. He attended the accident scene the day of the incident and noted the weather was clear and sunny and the pavement dry. From his observations, he concluded there was no indication of braking by the Knox vehicle prior to the point of impact. The collision took place on curve in the highway though he didn’t measure the degree of the curve. He estimated the contact point between the Knox and Little vehicles occurred 1.5 meters from the centre line in the lane properly occupied by the Little vehicle. Mr. Lawrence Chard inspected the three vehicles involved in the accident. He is certified mechanic and motor vehicle inspector for many years. In his opinion, no mechanical failure of any of the three cars caused or contributed to the accident; however, the Plymouth Caravelle, operated by the late Mrs. Little, had been badly rusted. He estimated the driver would have sustained less injuries were it not for the lack of structural integrity of the Little motor vehicle. Ms. Knox was transferred from the accident scene to the QEII Health Sciences Centre in Halifax in an unconscious state. Upon her arrival, she received medical attention. The parties agreed that the testimony of Jean Schneider, R.N., adduced during voir dire hearing reported in [2000] N.S.J. No.426 regarding the admissibility of certain evidence, could be admitted as part of the evidence of this trial. Nurse Schneider testified that on October 17th, 1999 she was nurse at the QEII Health Services Centre Emergency Department. At approximately 11:00 or 11:30 a.m., the department received word that at least one victim of motor vehicle accident would be arriving for treatment. Jessica Knox was admitted and the trauma team was called together. Nurse Schneider acted as the charting nurse for the team. Ms. Knox was unconscious and steps were taken to refit breathing tube in her to ensure she had good airway. Nurse Schneider gathered five vials and passed them to Nurse Dawn Gavin who drew blood from Ms. Knox, filling the five vials. Nurse Gavin indicated that she cleaned the area where she pricked Ms. Knox’s skin to obtain the blood sample with 70% Isopropol alcohol swab. Ms. Knox’s arm was still wet when she made the single puncture. She then drew five tubes of blood. It took approximately 30 seconds to minute in total time. She was of the opinion that she filled the red‑stoppered vials last. The parties agreed that Nurse Schneider recorded the taking of blood from Ms. Knox at between 12:10 and 12:15 p.m. on October 17th and that the vials of blood she sent for analysis all contained samples of the blood of Jessica Knox. Nurse Schneider immediately requisitioned series of tests on four of the vials. Later, upon approaching Ms. Knox who was still unconscious, Nurse Schneider noticed smell of alcohol. Upon informing one of the attending physicians of her observation, request and requisition was made to the hospital laboratory personnel to do an alcohol analysis of the contents of the remaining red‑stoppered vial of blood at approximately 1:30 p.m. Patrick Higgins, laboratory technician with the QEII Health Science Centre, testified he has held that capacity at various Halifax hospitals for the past 22 years. On October 17th, 1999 he was the laboratory technician on duty and he carried out an analysis of Ms. Knox’s blood. He had extensive experience in carrying out ethanol analysis using the equipment in the laboratory. The reading produced as result of the test was 47 millimoles of ethanol per litre of blood. He was of the opinion that the presence of 70% Isopropol alcohol solution on the skin at the site of the blood extraction would produce very low interference in the test results. He noted that the test was specifically calibrated to detect ethanol as compared to alcohol generally. His review of the control equipment and materials used in the testing process indicated the test was conducted properly because the results were inside the expected range. Notes from the testing procedure indicated: “Ethanol values up to mmol/l may be due to background interferences. Values up to mmol/l are not conclusive indicia that the person has ingested alcohol.” The final crown witness was Lori Ann Campbell, civilian employed in the RCMP Forensic Lab in Halifax. Counsel for both parties agreed that she had the requisite training and expertise to offer opinion evidence in the areas of consumption, absorption and elimination of alcohol in the human body and the effect of alcohol on the body. Ms. Campbell interpreted the Hospital Laboratory Report of 47 millimoles of ethanol per litre of blood to be the equivalent of 216 milligrams of alcohol per 100 millilitres of blood serum which she shortened to 216 milligrams per cent. The parties agree that the hospital laboratory analysis is derived from blood serum rather than whole blood. Ms. Campbell was presented with hypothetical containing the following facts: blood was drawn from person at 12:10 p.m. to 12:15 p.m. and no alcohol had been ingested within one-half hour prior to an accident occurring at 11:10 a.m. to 11:25 a.m., and no alcohol had been ingested after the accident and prior to blood being drawn, and blood serum was analyzed rather than whole blood. Based upon those hypothetical facts, Ms. Campbell offered the opinion that the blood alcohol level of person at the time of the accident would be between 180 to 220 milligrams per cent. In her opinion, person who operated motor vehicle with that amount of alcohol in their body would be intoxicated. She was of the further opinion that such person would exhibit slurring of speech; they would be staggering, unsteady. The vehicle would be weaving. The operator would have double vision, blurred vision and their peripheral vision would be impaired. If that person was suffering from lack of sleep, the amount of impairment would be more pronounced and compounded. It was furthermore Ms. Campbell’s opinion that impairment by alcohol ingestion for most persons starts at 20-30 milligrams per cent An experienced drinker would experience impairment at 50 milligrams per cent, but even chronic drinker would exhibit impairment if their alcohol ingestion amounted to ‘90 to 100' milligrams per cent. On cross examination, Ms. Campbell provided the opinion that the average elimination rate for alcohol in human body was from 10 to 20 milligrams per cent per hour. Exhibit #6, the Hospital Toxicology Report on Ms. Knox, purported to contain two test results: (a) at 1310 hours the reading was 47 millimoles per litre; and (b) at 2140 hours reading of less than millimole per litre, which was within the range of background interference for the test equipment itself. Ms. Campbell agreed that all things being equal, that would result in an elimination rate of 22.5 milligrams per cent per hour if the alcohol was eliminated at the time of the second test; i.e., 21:40 hours. If the alcohol had been eliminated earlier, then of course greater elimination rate would have to be assumed, putting Ms. Knox’s elimination rate further outside that of the population norm. It was suggested by defence counsel that Ms. Knox’s elimination rate was either abnormal or that the initial analysis of her blood alcohol was inaccurate. On redirect, Ms. Campbell indicated that blood transfusions and their timing may or may not have affected the later readings. Due to the paucity of information regarding the treatment given Ms. Knox in the intervening time between the initial blood alcohol test and the steps taken to obtain the second sample, recorded in Exhibit #6, very little if any weight can and should be given to the second reading. In point of fact, it is possible that the second sample may not be an analysis of sample of the blood of Ms. Knox, but rather of some other patient. In any case, based upon the evidence at trial, subject to cross-examination, and mindful of the decision of the Ontario Court of Appeal in R. v. Redmond (1990), 1990 CanLII 10971 (ON CA), 54 C.C.C. (3d) 273, it is the opinion of this Court that the initial reading of Ms. Knox’s blood alcohol level at 12:10 p.m. to 12:15 p.m. on October 17th, 1999 was accurately recorded as the equivalent of 216 milligrams of alcohol in 100 millilitres of blood. Counsel for the defence elected not to call evidence. The question remains what if any notice, can the Court adduce from the blood alcohol reading of Ms. Knox at 12:10 to 12:15 p.m. on October 17th, 1999 or the purported extrapolation of that blood alcohol reading back to the time of the operation of the vehicle by Ms. Knox at approximately 11:00 a.m. of the same day. The onus is on the crown to prove the elements of the remaining offences before the Court beyond reasonable doubt. Since the Accused has admitted to being the operator of the white Corsica motor vehicle at the time that vehicle came into collision with the vehicles operated by Joan Jeanette Little and Raelee Kane, the Court must determine if the accused was impaired by alcohol or drug in her ability to operate the white Corsica motor vehicle. In R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380, (the Ontario Court of Appeal) affirmed by the Supreme Court of Canada, 1994 CanLII 94 (SCC), [1994] S.C.R. 478, the Court held that the offence of impaired operation or impaired care and control of motor vehicle contrary to s.253(a) of the Criminal Code is made out by proof of any degree of impairment from slight to great. There is no requirement of proof of marked departure from normal behaviour. Impairment is an issue of fact which the trial judge must decide on the evidence. If evidence of impairment is so frail as to leave the trial judge with reasonable doubt, then the accused must be acquitted. In R. v. Andrews (1996), 1996 ABCA 23 (CanLII), 104 C.C.C. (3d) 392, the Alberta Court of Appeal reviewed the Stellato (supra) case in decision wherein leave to appeal to the Supreme Court of Canada was denied, p.106 C.C.C. (3d) vi. At p.399 of the Court of Appeal decision, Conrad J.A. states: Stellato approves the principle that conviction on charge of impaired driving can be founded on proof beyond reasonable doubt of slight impairment of the ability to drive. If the ability to operate motor vehicle is impaired (even slightly) by alcohol or drugs, it is not necessary that the degree of that impairment be marked. The Court must not fail to recognize the fine, but crucial distinction between “slight impairment” generally and “slight impairment of one’s ability to operate motor vehicle.” Every time person has drink, his or her ability to drive is not necessarily impaired. It may be that one drink would impair one’s ability to do brain surgery, or one’s ability to thread needle. The question is not whether the individual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive is impaired to any degree by alcohol or drug. In considering these questions, judges must be careful not to assume that where person’s functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. The corollary to that is the Court’s finding that where the proof of impairment consists of observations of conduct in most cases and where the conduct is slight departure from normal activity, it would be unsafe to conclude beyond reasonable doubt that the ability to drive was impaired by alcohol. In R. v. Laprise (1996), 1996 CanLII 6000 (QC CA), 113 C.C.C. (3d) 87, the Quebec Court of Appeal in case involving impaired driving causing death, considered how the crown could establish that the driver of motor vehicle was impaired: (a) testimony of witness as to the characteristics of the accused’s driving; (b) inferring the accused’s condition from the usual indicia of impairment such as smell of alcohol, glassy eyes or unsteadiness by the accused on his feet, inability to walk white line; or (c) results of breath, urine or blood test. At p.5 of the QuickLaw citation, the Court continues when referring to the test results: However, while such results may corroborate the observations of the police officer as to the cause of the decrease in one’s ability to drive, it does not permit on its own an inference as to the amount of alcohol consumed or its effects, except where an expert has established correlation between the result and the possible impairment of one’s faculties. The Courts do not take judicial knowledge of these facts (R. v. Thomas (1992), 1991 CanLII 3293 (QC CA), R.L.318). The Court further continued: It is clearly established that in cases of impaired driving causing death it is sufficient that the accused’s condition contributed to the smallest degree to the death. The crown need not demonstrate that the decrease in the accused’s ability to drive is the only cause of the victim’s death or the victim’s injuries. The most salient evidence the crown adduced was the blood alcohol reading taken from Ms. Knox’s body at the hospital close to one hour after the motor vehicle accident. The forensic crown expert was of the opinion that at the time of the taking of the blood sample from Ms. Knox’s body, she had reading equivalent to 216 milligrams of alcohol per 100 millilitres of blood. She attempted to extrapolate that reading back to the time of the motor vehicle accident. As previously noted, she assumed two facts as part of the hypothetical presented to her: (1) no alcohol had been ingested one‑half hour prior to the accident; and (2) no alcohol had been ingested after the accident and prior to the blood sample being drawn. The defence objects to the admission of the opinion of the forensic expert as to the blood alcohol in the body of the accused at the time of the accident because those underlying assumptions have not been proven by the crown. In similar case, R. v. English, [1982] A.J.#241 (1986), 1982 ABCA 198 (CanLII), 47 Alta.L.R.(2d), 372 (the Alberta Court of Appeal) was of the opinion: It seems to me to be fundamental that the party introducing opinion evidence based upon hypothetical facts has the burden of establishing those facts in evidence...having asked the witness to rest his opinion on that fact, it was for the crown to prove the fact, not for the accused to rebut it... The burden of proof of the foundation facts lies upon the party seeking introduction of opinion evidence... Since there was no evidence at the trial to prove the fact assumed, the expert evidence of extrapolation had no probative value. This is not to put upon the crown the burden of anticipating and refuting any defence that might be raised. It is simply to require the crown to prove the foundation of its own opinion evidence as prerequisite to that evidence having any probative value at all. Without that foundation, there was no valid opinion evidence to be met by the defence... It is not the law that party may present opinion evidence based on unproven facts and call upon the other side to disprove the assumption. In the present case there is no evidence as to the actions or whereabouts of the accused for some three hours prior to the accident. The crown witnesses did not even take note of the driving of the accused until some mere seconds before the collision occurred. There is no evidence to account for the pattern of alcohol intake of the accused for at least the three hours prior to the accident. It is possible that she ingested large amount of alcohol into her body within half hour of the accident which remained unabsorbed in her system at the time of the accident. With respect, however, to the consumption of alcohol by the accused subsequent to the accident and prior to the blood sample being taken, that appears to be highly unlikely. The first witnesses on the scene describe Ms. Knox as unresponsive and unconscious and she apparently remained so until the blood samples were taken from her body at the hospital. In R. v. Clark, [1995], S.J.#566 Gerein, J. of the Saskatchewan Court of Queen’s Bench, reviewed R. v. English (supra) and other decisions. She quoted with approval R. v. Abbey, 1982 CanLII 25 (SCC), [1982] S.C.R. 24 at p.46: “Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.” In addition, Judge Gerein reviewed R. v. Nelson (1982), 216 Sask. R. 391, where there also was lack of proof that there was no large consumption of alcohol immediately before the time of driving or no intervening drinking between the time of the driving and the time of the test. The Court of Appeal in Nelson (supra) determined the trial judge was correct in determining that since there was no basis in fact for two of the experts’ assumptions, then the opinion was not properly before the Court and of no evidentiary value. In the Clark (supra) case, the facts established that the accused had been drinking between 3:00 p.m. and 6:05 p.m. At 6:05 p.m. he was described as inebriated, but not stumbling. He was observed in store between 6:35 p.m. and 6:40 p.m. and described as drunk once again. He was seen to drive away from the store and an accident occurred at 7:20 p.m. some 31 kilometers from the store. No alcohol or alcohol container was found on the accused or in his car. The accused was removed from the scene to hospital and blood sample was taken. The crown was not allowed to introduce the evidence of an expert attempting to extrapolate the blood test results back to the time of the accused driving because the factual underpinnings of whether alcohol had been ingested by the accused within one-half hour prior to the driving had not been proven. similar result occurred in R. v. Reutow, [1992] 38 M.V.R. (2d) 189; R. v. O’Hara, [1989] O.J.#2675; and R. v. Bangs, [1992] O.J.#3734. Close to home in R. v. Lacey (1992), 111 N.S.R. (2d) 348, the Nova Scotia County Court upheld the determination of Judge Clyde MacDonald of the Provincial Court. An expert was required to interpret two breathalyzer readings made within 14 minutes of each other. The expert attempted to extrapolate backwards the breath test results, but admitted that he did not know whether the accused had consumed significant amount of alcohol within one-half hour prior to the time of driving. Accordingly, the opinion evidence was not allowed to be considered. Finally, in R.v. Snyder, [1997] N.S.J.#435, Her Honour Judge Crawford entered an acquittal where in that case the Court held there was no evidence before the Court to prove the expert’s assumption that the accused had not consumed alcohol in the half hour prior to his involvement in motor vehicle accident. Her Honour arrived at three conclusions upon reviewing many of the cases considered by this Court and previously cited herein. At p.7 of her decision, she concluded: (1) The burden is on the crown to prove all of the assumptions on which its expert opinion is based; (2) Proof can be by direct evidence or indirect evidence; for example, to the effect that any other assumption is such remote possibility or so unreasonable that it need not be considered; (3) Where there is neither direct evidence of such an assumption nor any evidence as to the remoteness or unreasonableness of the alternative assumptions, the crown will be taken not to have proven the assumption and the value of the expert opinion will be diminished accordingly. The second conclusion Her Honour reaches is based upon review of several cases wherein the crown has asked the expert to provide an opinion as to how much alcohol the accused would have had to ingest within one-half hour of the driving or accident (and thus be undigested at the time) which would correlate to the blood alcohol reading subsequently generated and at the same time produce result at the time of driving that would have the accused under the legal limit for alcohol consumption. If the quantum of alcohol based upon given evidence of the physical dimensions of the accused, etc. was unbelievably high, then the factual assumption could be proven by this indirect means. This Court does not have to take that possibility under consideration since that opinion evidence is not before the Court. The crown makes reference to the Ontario Court of Appeal decision in R. v. Grosse (1996), 107 C.C.C. (3d) at p.97, leave to appeal to the Supreme Court of Canada refused. The trial judge found it was “preposterous” that the defendant would have drank such huge amount of alcohol within 30 minutes of the impugned driving as determined by the expert to equate to an amount equivalent to the breath-test results. The Appeal Court held at p.104: In view of the circumstantial evidence that tended to demonstrate the respondent had not engaged in bolus drinking and the respondent’s unique position to offer an explanation, the trial judge was entitled to draw an adverse inference unfavourable to the respondent from his failure to testify to such an unusual drinking pattern. Once again that type of evidence is not before this Court. In R. v. Quiring, [1998] B.C.J.#2631, Justice Wilson in commenting on R. v. Grosse (supra), stated at p.11: accept that it is question of fact for the trier of fact to determine if the assumptions on which the opinion is based have been proven and that the onus is on the crown to meet that burden. There is no onus on the accused to adduce evidence to the contrary. In R. v. Dean (1992), 1992 ABCA 109 (CanLII), 37 M.V.R. (2d) 238, the Alberta Court of Appeal was asked to reconsider its earlier decision in R. v. English (supra) in determining the weight to be given to expert testimony in such circumstances in light of the R. v. Lavallee decision of the Supreme Court of Canada reported at 1990 CanLII 95 (SCC), [1990] S.C.R. 852. The Alberta Court of Appeal concluded at p.242: In the absence of any proof of the facts on which the expert opinion is based, no weight will be given to it. Equally if some proof of the hypothetical facts is offered by admissible evidence, then the question will be whether it is sufficient to meet the requirements for which it was called. Proof beyond reasonable doubt requires more than evidence intended to raise reasonable doubt. The balance of probabilities in civil litigation has its own requirements; in such case, the trier of fact will consider to what extent the hypothetical question has been proven and whether in the circumstances it is sufficient. [emphasis added] R. v. Livingstone, [1992] A. J. No. 967 (1992), 137 A.R. 179 is an example wherein the trial judge decided the defence had not raised reasonable doubt through the use of expert opinion since the facts needed for the basis of the defence expert were not established on balance of probabilities. In conclusion, with respect, this Court cannot give any weight to the opinion evidence tendered by the crown to prove beyond a reasonable doubt the extrapolated blood alcohol level in the body of the accused at the time of the accident. The remaining evidence which is admissible can be briefly restated. Ms. Knox was awake the entire evening of October 16th, 1999. She drank limited amount of alcohol starting at 10:00 p.m. that evening. It is questionable whether she had any alcohol before leaving friend’s home at 10:00 p.m. She had drink of vodka between 10:00 p.m. and 1:30 a.m. She purchased beer between 1:30 a.m. and 3:30 a.m., but did not consume it. She ate pizza and drank soft drink between 3:30 a.m. and 4:15 a.m. She returned to her friend’s residence at 4:30 a.m. and had beer. She was seen spilling that same beer or possibly another one. When last seen by witness at 6:00 a.m., Ms. Knox was tired and the witness thought Ms. Knox had too much to drink but did not see her drink alcohol. That witness left at 7:30 a.m. Ms. Knox left the premises at 8:00 a.m. and was not seen by anyone until 11:00 a.m. Ms. Knox operated motor vehicle unremarkably for period of time and was noted by witness to slowly slump to the right in the driver’s seat as her motor vehicle crossed the centre line of public highway. Ms. Knox took no corrective steps to brake or alter the direction of her motor vehicle as she came into collision with two oncoming cars within mere seconds of crossing the centre line. There was no mechanical failure of her vehicle which would have caused the accident. Ms. Knox was rendered unconscious at the time of the collision and remained so until later treated in hospital. At the hospital it was determined that at approximately 12:10 to 12:15 p.m. of the same day she had blood alcohol reading of 216 milligrams of alcohol per 100 millilitres of blood. In R. v. Ostrowski (1958), 1958 CanLII 102 (ON SC), 122 C.C.C. 196, 29 C.R. 109, the Ontario High Court of Justice determined that the Court is not entitled to take judicial notice that at certain blood alcohol level the accused’s ability to drive would be impaired. Lori Ann Campbell was of the opinion that even chronic drinkers would exhibit some impairment in their ability to operate motor vehicle if their alcohol ingestion amounted to blood alcohol ratio of ‘90 to 100' milligrams per cent. However, the Court has no admissible evidence before it as to the quantum of any alcohol that was absorbed in the body of Ms. Knox at the time of the accident. The Court has no evidence to determine what if any effect, the consumption of alcohol by the accused during the evening of October 16th and early morning of October 17th, 1999 had on the ability of the accused to operate motor vehicle. No opinion evidence is offered to suggest whether that alcohol would have been still affecting the accused in her ability to drive or whether it had been not only absorbed but possibly eliminated by the time that she was operating the motor vehicle. There is evidence that by the time Ms. Knox reached the hospital in the afternoon of October 17th, she had considerable amount of alcohol in her body but we do not know when that alcohol was absorbed and what effect, if any, that alcohol had on her ability to operate motor vehicle at 11:00 a.m., the time of the collision. Referencing once again R. v. Laprise (supra), how can the crown prove beyond reasonable doubt the impairment by alcohol of the accused’s ability to operate motor vehicle besides by the use of breath, urine or blood tests? Normally laypersons, as well as experts, can indicate to the Court their opinion as to the sobriety of another person Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] S.C.R. 819 (S.C.C.) Those opinions must be based upon observation or deduction. No one has testified as to any of the usual indicia of intoxication on the part of Ms. Knox; i.e., glassy eyes, smell of alcohol, unsteadiness on her feet, bloodshot eyes, slurred speech at or near the time of the collision. The only evidence of smell of alcohol emanating from Ms. Knox was made by Nurse Schneider who approached the unconscious Ms. Knox at approximately 1:30 p.m., some two and half hours after the collision. It should be noted that Nurse Schneider had been attending the treatment of Ms. Knox from 12:10 p.m. onwards and had not noted any smell of alcohol prior to 1:30 p.m. The only witness who offered an opinion that Ms. Knox had too much to drink was Ms. Hodge. That observation was apparently made at 6:00 a.m. Ms. Hodge also stated that she did not see Ms. Knox drink and that she felt that Ms. Knox was very tired. Ms. Campbell, the forensic expert, stated that lack of sleep would exacerbate the effects of alcohol ingestion. However, there is no evidence of erratic driving or operation of the motor vehicle by Ms. Knox prior to the collision consistent with absorbed alcohol ingestion. The Court is mindful that the manner of driving need not exhibit marked departure from the norm. What is unusual about the driving was the momentary crossing of the centre line without any attempt to avoid collision. This action or omission on the part of Ms. Knox, was noted to follow her gradual slumping to the right while seated in the driver’s position of her car. Such slumping could be entirely consistent with fatigue; i.e., lack of sleep, with or without the presence of alcohol. Several witnesses concurred that Ms. Knox had not slept all night from at least 10:00 p.m., October 16th to 8:00 a.m. the following morning. While the Court is highly suspicious of the chain of events which culminated in the horrific accident on the Prospect Road wherein loss of life and bodily harm resulted, the Court cannot found conviction on suspicion alone. In R. v. Stellato (supra) the Court has determined that any degree of impairment ranging from slight to great can prove the offence of impaired operation or care and control of motor vehicle contrary to s.253(a); the Court has also declared if the evidence of impairment is so frail as to leave the trial judge with reasonable doubt, then the accused must be acquitted. This case is criminal prosecution wherein the accused not only is presumed to be innocent, but has constitutional right to remain silent. The totality of the admitted evidence before the Court is not so compelling as to allow the trier of fact to draw any adverse inference against the accused due to her election not to testify about her ingestion of alcohol; fact of which she alone, might have knowledge. In civil proceedings, Ms. Knox may be competent and compellable witness for discovery. That is not the case in criminal prosecution. Since the crown has not proven beyond a reasonable doubt the element of impairment by alcohol or drug, the Court is obligated to enter an acquittal on both counts. Dated at Halifax, Nova Scotia on January 19th, 2001. Michael B. Sherar Judge of the Provincial Court
The accused was charged with impaired driving causing bodily harm. Expert evidence was given based on blood samples taken after the accident that the accused was impaired; this opinion was based on two assumptions, namely, that the accused had not consumed alcohol within half an hour of the accident, nor after the accident. The Crown did not offer any evidence to prove these assumptions and, in fact, there was a three hour period prior to the accident where there was no evidence of what the accused, who did not testify, was doing. Acquitting the accused, that the expert evidence cannot be tendered by the Crown to prove beyond a reasonable doubt that the accused had been impaired. The remainder of the evidence against the accused was insufficient to prove the accused's doubt beyond a reasonable doubt.