R v Paszczenko; R v Lima – 2010 ONCA 615 (Blair):

[61] It is technically unnecessary to resolve this debate, given the analysis outlined above. I am inclined to the view, however, that courts are entitled to take judicial notice (a) of the fact that the majority of human beings eliminate alcohol in a range of 10-20 milligrams of alcohol per 100 millilitres of blood per hour, and (b) of the fact that, after rising relatively quickly during the first 30 minutes or so after the last drink, a person’s BAC generally hits a plateau for a period of up to two hours during which time the absorption rate and the elimination rate remain about equal and the BAC neither rises nor falls. I think this view is consistent with the evolving jurisprudence and with the experience of hundreds of trial judges across the country.

[62] In R. v. Koh, Finlayson J.A. concluded, at p. 679, that “judicial notice may be taken of two kinds of fact: facts which are so notorious as not to be the subject of dispute amongst reasonable persons; and facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy.” Moreover, “judicial notice is permissible where previous courts have proven a certain fact.” See also Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3rd ed. (Toronto: LexisNexis Canada Inc., 2009), at paras. 19.13 and 19.17.

[63] In Phillips, this Court dealt extensively with the underlying facts regarding the absorption and elimination of alcohol into and out of the blood and the measurement of BAC. It did so on the basis of an agreed statement of facts and the scientific basis underpinning those facts. Speaking for the Court, Blair J.A. stated at p. 160:

Scientists have established that the BAC rises rapidly, as stated in paras. 5 and 6 of the agreed statement of facts, to a maximum or near maximum within approximately 30 minutes of the last drink. Thereafter, it remains relatively constant for a period of two hours after the alleged offence and then declines as alcohol is eliminated from the blood at the rate of 10 to 20 mg per 100 ml of blood per hour. In graphical terms BAC is often described as a sharply ascending curve in the first 30 minutes after consumption of the last drink, a plateau of approximately two hours and a gradually descending curve thereafter.

[64] The one exception to the foregoing conclusion, Blair J.A. noted, was the “relatively rare cases where there has been both a large amount of alcohol consumed within a few minutes prior to the apprehended driving and where the Breathalyzer tests are commenced within about 30 minutes of the last alcohol consumption.”

[65] These conclusions were well-founded on the scientific literature and studies in the forensic toxicology field, to which the Court had been referred and which it referenced. There is no evidence here that the scientific evidence has changed since Phillips was decided. Indeed, as I noted earlier in these reasons, in Gibson/MacDonald, supra, Deschamps J. would have held that accepting an average rate of elimination of 15 milligrams per 100 millilitres of blood per hour (the mid-range between 10-20 milligrams) “… would amount only to acknowledging the factual findings of trial judges across the country.”

[66] In principle, therefore, I see no impediment to judges taking judicial notice of both the “plateau” and “elimination rate” assumptions underlying the expert toxicologist’s reports. They are assumptions, with underlying facts, that “are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy” in the scientific field of forensic toxicology and in the jurisprudence.