R. v. Hall (S.), (2007) 219 O.A.C. 251 (CA)

• Judge: Rosenberg, Goudge and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 21, 2006
• Jurisdiction: Ontario
• Citations: (2007), 219 O.A.C. 251 (CA);2007 ONCA 8;83 OR (3d) 641;[2007] CarswellOnt 52;[2007] OJ No 49 (QL);219 OAC 251;41 MVR (5th) 8;71 WCB (2d) 921

R. v. Hall (S.) (2007), 219 O.A.C. 251 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. JA.031

Her Majesty the Queen (respondent) v. Shawn Hall (appellant)

(C42710)

Indexed As: R. v. Hall (S.)

Ontario Court of Appeal

Rosenberg, Goudge and LaForme, JJ.A.

January 10, 2007.

Summary:

The Ontario Superior Court found the accused guilty of impaired driving causing death, driving with blood-alcohol over 80 and dangerous driving causing death. The court sentenced the accused to four years and 10 months in gaol. A 10 year driving prohibition was also imposed. See [2004] O.T.C. 1039. The accused appealed against conviction and sentence.

The Ontario Court of Appeal allowed the appeal in part. The conviction for driving with blood-alcohol over 80 was quashed. The appeal was dismissed for the rest.

Criminal Law - Topic 57

General principles - Protection against self-incrimination - Unfavourable inference from accused's failure to testify or call evidence - The accused was charged with impaired driving offences after a fatal accident - Unable to rely on the presumption found in s. 258(1)(c) of the Criminal Code, the Crown introduced expert evidence to the effect that the accused’s blood-alcohol level was over 80 at the time of the accident - The defence countered by arguing that the accused had engaged in "bolus drinking" - The accused did not testify - The trial judge drew an adverse inference against the accused from his failure to testify - The accused was convicted - The Ontario Court of Appeal ruled that the trial judge was entitled to draw the adverse inference - The trial judge was always aware of the burden of proof and where it lay - There was evidence, which she accepted, to prove the accuracy of the expert’s calculation - That conclusion was reached without any reliance on an adverse inference, and without in any way shifting the onus of proof from the prosecution - See paragraphs 22 to 28.

Criminal Law - Topic 1376

Motor vehicles - Impaired driving - Breathalyzer - Proof of blood-alcohol content - The accused was charged with impaired driving offences after a fatal accident - The Crown relied on an expert who opined that the accused’s blood-alcohol level was over 80 at the time of the accident - The defence countered by calling a witness who testified that the accused had engaged in "bolus drinking" immediately before the accident - The trial judge disbelieved the witness - She relied on the expert’s opinion and found that the accused’s blood-alcohol level was over 80 at the time of the accident - The Ontario Court of Appeal upheld the ruling - Having rejected the defence witness’ evidence, there was no evidence whatsoever of bolus drinking, nor was there any other evidence to undermine the common-sense inference of drinking at a normal pace, on which the trial judge was entitled to rely - The trial judge was fully aware that the Crown had to prove beyond a reasonable doubt that the accused did not engage in bolus drinking immediately before the accident - She was satisfied beyond a reasonable doubt - Her conclusions were wholly supported by the evidence - See paragraphs 10 to 21.

Cases Noticed:

R. v. Grosse (P.) (1996), 91 O.A.C. 40; 107 C.C.C.(3d) 97 (C.A.), consd. [para. 11].

R. v. Noble (S.J.) (1997), 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1; 114 C.C.C.(3d) 385 (S.C.C.), consd. [para. 25].

Counsel:

Gregory Lafontaine and Vincenzo Rondinelli, for the appellant;

James V. Palangio, for the respondent.

This appeal was heard on December 21, 2006, by Rosenberg, Goudge and LaForme, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was delivered by LaForme, J.A., and released on January 10, 2007.