Where the Judge has a reasonable doubt as to the guilt of the accused, they must acquit and find the accused not guilty.
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN-AND AMRICK DHINDSA
COURT FILE No.: Brampton 7738/15
Before Justice J.J. Keaney
Heard on December 21, 2016
Ms. Kim counsel for the Crown – Mr. Charitsis criminal defense counsel for the accused.
 Where as Amrick Dhindsa is charged with impaired operation of a motor vehicle, and with operating a motor vehicle with excess blood alcohol concentration, contrary to section 253 of the Criminal Code of Canada.
 Crown witnesses were a civilian driver who identified the accused, three police officers, including the Qualified lntoxilyzer Technician who dealt with the accused, and Forensic Toxicologist Inger Bugyra.
 The accused, his mother, and his neighbour testified as to the accused’s behaviour.
 Trial issues centre around the accused’s assertion of post-driving consumption amounting to “bolus” drinking, and the credibility analysis mandated by the Supreme Court of Canada in R. v. WD.
 I have considered all of the evidence and the submissions of both counsel.
 On June 21, 2015, Nora Ragheb., driving northbound on Mavis Road, a little after 8:00 p.m., noted erratic driving that sufficiently alarmed her to telephone 911.
 She identified ·the accused as the operator of a vehicle that was swerving behind her, hitting the curb, requiring other vehicles to honk and just barely hitting her. She saw it stop mid-intersection at Mavis and Derry, then slowly reverse. She followed the vehicle to its driveway in a residential neighbourhood
[8) Police arrived on scene and observed a male on the front porch drinking from what appeared to be a beer bottle. It was later determined that this was the accused’s brother.
 In the garage of the residence, in the company of Police Constable Matta, this officer spoke with the accused. He noted slurred speech, red bloodshot eyes, swaying back and forth, and very slow actions ..
 He noted the vehicle alleged to have been driven by the accused had some damage.
 PC Matta arrived at 8:15. He noted the vehicle matching the plates on the Mercedes reported by Ms. Ragheb was in the driveway. He determined the engine hood was warm and had just been driven recently
 The accused came out of the home to speak with him. This officer noted strong alcohol breath odour, glazed eyes, and slurred speech. He had difficulty producing documents.
13] At this officer effected an arrest, provided Rights to Counsel, Caution and Breathalyzer Demand, all of which the accused understood.
 At 12 Division Police Constable Haramis, qualified lntoxilyzer Technician received the accused into his custody.
 The accused was given access to Duty Counsel. He initially refused to provide a sample of his breath, but was eventually persuaded on the fifth demand. This officer noted bloodshot and watery eyes, flushed face, alcohol breath odour, slurred speech, and that the accused was unsteady. The accused had also vomited all over himself.
With the grounds given to him regarding the observed driving behaviour, this officer concluded the accused had operated. a motor vehicle while impaired by alcohol.
 The accused provided two suitable samples of his breath, directly into an lntoxilyzer, an approved breathalyzer instrument.
The readings were, at 10:32 p.m., 163 milligrams· of alcohol· in ·one .hundred millilitres of blood, and at 10:52 p.m., 169 milligrams of alcohol in one hundred millilitres of blood
 The samples were taken outside of two hours from the observed driving.
 Sukpaul Singh Sidhu is the accused’s neighbour, living at an adjacent property.
 He testifies he remembers the day. He was home during the day, out in the evening.
 He exchanged greetings with the accused upon his arrival. The homes shared a driveway. They spoke for two minutes. This witness observed nothing abnormal about the accused’s behaviour.
 Mangit-Singh is the accused’s mother. She testifies that he arrived home about 8:00 p.m., and went upstairs to his room. When offered dinner he said he would eat later.
 One half hour later she went to his room and observed him with a glass in hand, and a bottle of alcohol on the floor.
 She says he looked “different”. She says he was fine when he first went upstairs, he was “not fine” when he came downstairs to speak with police.
 She knows the accused takes prescription pills, she does not know for what condition. Her son has never discussed his illnesses with her.
 The accused is a fifty-seven year old IT manager. He says he suffers anxiety, and was hospitalized for depression, commencing in-about 2008. Anxiety symptoms include agitation and poor concentration. When he suffers an anxiety attack, his condition is “way worse”.
When that happens he usually needs medical assistance or he self-medicates.
 He drinks alcohol to self-medicate, it relaxes him and lessens his agitation.
 He was last hospitalized for this condition in February 2015.
 He testifies that in 2015 he got drunk three to four times per week, with Gin or Vodka or beer. The higher his anxiety, the more quickly he would drink. He would typically drink 500 millilitres per day.
 He testifies that on this day, a Sunday, he drove in the morning to an Infinity dealer. He had bought a new car, and the plates on the car he was driving had not yet been transferred.
 He watched TV at home in the afternoon, and then ·walked about ten minutes to a Wild Wing restaurant where he had two Heineken beers in about 15 or 20 minutes, with nothing to eat. He paid cash. He has no receipt.
 He walked home, and a short time after that says he felt hungry. He walked about five minutes to Soultree where he had buttered chicken and two Molson Canadian. He returned home about4:45 p.m. At about 7:50 he left home to drive to the Heartland Centre to a health food store. Upon arrival he found that it was closed.
He felt agitated and hyper. Hands and legs were shaking and weak. He left quickly knowing he needed to get home as soon as possible. He did not have medication with him:
 He does not remember striking a median, stopping mid-intersection, hitting pylons, or any of the driving observations testified to by Ms. Ragheb. He admits to speeding. He· heard honking. His concentration was not good.
 Upon arrival home he spoke for about five minutes with Singh Sidhu, but wanted to rush to his room because of his anxiety. Commencing at about 8: 15 he consumed a mickey of Gin he had bought that morning.
In addition he drank one and one half cans of Tuborg beer, 500 millilitres. He began to feel relaxed.
 Upon police arrival his brother helped him down the stairs.
 He concedes he was intoxicated, when the police arrived. He had taken four sleeping pills shortly before the police arrival, for his anxiety.
 Forensic Toxicologist Inger Bugyra testified as to the results of various drinking scenarios on the accused’s blood alcohol concentration at the time of driving,8:07 to 8:12 p.m.
 Given the lntoxilyzer readings at10:32 and 10:54, she calculates that the blood alcohol concentration, absent any post-driving consumption, to have been in the range of 160 to 210 milligrams of alcohol in one hundred millilitres of blood at the time of driving.
 She calculates that on the consumption of two Molson Canadian, as testified to by the accused, at4:00 p.m., his blood alcohol concentration at the time of driving would be in the range of 10 to 20 milligrams.
If there was added to that two pints of Heineken, as testified to by the accused, the blood alcohol concentration at the time of driving was in the range of 20 to 60 milligrams of alcohol in one hundred millilitres of blood.
Analysis of the Impaired Driving Charge
 The accused’s evidence must be considered within the framework for credibility analysis set out by the Supreme Court of Canada in R. v. WD. If I accept the evidence of the accused, or if I am left in reasonable doubt by it, I must acquit.
 In any event, I must be satisfied that the Crown has proven its case to a standard beyond a reasonable doubt.
 In this case, while the accused, in his testimony, makes repeated emphasis to his medical condition of anxiety, for which he self-medicates, and for which he had been hospitalized and for which he received medical treatment, no evidence beyond his own assertion was submitted.
His condition was apparently a mystery to his mother. His evidence as to his consumption pattern post-driving is, at the very least, a-typical.
While I do not accept the accused’s evidence, his evidence does leave me in some reasonable doubt. The mickey bottle of Gin was seen in his room. He did not appear impaired to his mother or neighbour upon arrival home.
I am obliged to conclude that the Crown has not met its high burden of proof to· a standard beyond a reasonable doubt. The accused will be found not guilty on both counts.
Released: March 10, 2017
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