Setting Up the Bolus Drinking Defence


Bolus drinking describes the consumption of large quantities of alcohol immediately or shortly before driving. The onus is on the Crown to prove a negative, namely that the accused has not engaged in bolus drinking. A toxicologist’s report is based on the premise that there has been no bolus drinking.

 In the absence of evidence on the record to suggest the contrary, the Court of Appeal for Ontario has ruled that the trier of fact may resort to a common sense inference that people do not normally ingest large amounts of alcohol just prior to, or while, driving.

R. v. Paszczenko 2010 ONCA 615 (CanLII), 103 O.R. (3d) 424, at paras. 27-29.

In such circumstances, the toxicologist’s report may be relied upon as an accurate representation of a person’s blood alcohol content at the time of the occurrence.

In the absence of evidence to the contrary, there is no presumption that the accused is deemed not to have consumed large quantities of alcohol. The burden remains on the Crown to prove blood alcohol content at the time of the offence.

A practical evidentiary burden is imposed on the accused to point to something in the evidence (either in the Crown's case or in evidence led by the defence) that at least puts the possibility that the accused had engaged in bolus drinking in play

When breath samples are taken more than two hours after the alleged offence, the Court of Appeal for Ontario has ruled that the accused has a “practical evidentiary burden” to provide some evidence to refute the common sense inference of no bolus drinking.  

Ibid, at paras. 32 & 34.

In other words, the accused must point to some evidence to indicate that bolus drinking is a live issue.  

See also R. v David Baron, 2017 ONSC 1739 (CanLII).

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