The accused was charged with operating a motor vehicle while impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code and with having a blood alcohol concentration in excess of 80 milligrams of alcohol in 100 millilitres of blood while operating a motor vehicle contrary to s. 253(1)(b) of the Criminal Code.
Both charges arose from a motor vehicle collision on August 11, 2011.
The trial involved a blended proceeding addressing Charter applications under ss. 8, 9, 10(b), and 7, as well as a voluntariness voir dire.
The central factual dispute concerned whether the accused consumed a large quantity of vodka immediately after the collision (bolus drinking), which would affect the reliability of toxicological evidence regarding blood alcohol concentration at the time of the collision.
The court rejected the bolus drinking defence and found the accused guilty on both counts.
interesting_citations_summary: >
The decision provides a comprehensive analysis of bolus drinking jurisprudence, applying principles from R. v. Lima, R. v. Grosse, and R. v. Lavallee regarding the Crown's burden to disprove bolus drinking.
The court examined the practical evidentiary burden on the accused to put bolus drinking in play and the application of common sense inferences about normal drinking behaviour.
The decision also addresses Charter protections including reasonable grounds for arrest under ss. 8 and 9, the right to counsel under s. 10(b), and the voluntariness of statements.
The court rejected arguments that the accused's impairment or medication affected his ability to waive counsel rights, and found that the officer's reasonable grounds for arrest were sufficiently grounded in the constellation of factors available at the time.
keywords:
- Impaired driving
- Blood alcohol concentration
- Bolus drinking
- Charter rights
- Reasonable grounds for arrest
- Right to counsel
- Toxicological evidence
- Motor vehicle collision
- Voluntariness voir dire
areas_of_law:
- Criminal Law
- Impaired Driving
- Charter Rights
- Evidence
- Toxicology
legislation:
- title: "Criminal Code, R.S.C. 1985, c.
C-46, s. 253"
url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/page-100.html"
- title: "Criminal Code, R.S.C. 1985, c.
C-46, s. 254"
url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/page-101.html"
- title: "Criminal Code, R.S.C. 1985, c.
C-46, s. 258"
url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/page-103.html"
- title: "Canadian Charter of Rights and Freedoms, s. 7, 8, 9, 10(b), 24(2)"
url: "https://laws-lois.justice.gc.ca/eng/const/page-12.html"
case_law:
- title: "R. v. Paszczenko; R. v. Lima, 2010 ONCA 615"
url: "https://www.canlii.org/en/on/onca/doc/2010/2010onca615/2010onca615.html"
- title: "R. v. Lavallee, [1990] 1 S.C.R. 852"
url: "https://www.canlii.org/en/scc/doc/1990/1990canlii95/1990canlii95.html"
- title: "R. v. Grosse, 29 O.R. (3d) 785"
url: "https://www.canlii.org/en/on/onca/doc/1996/1996canlii6643/1996canlii6643.html"
- title: "R. v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641"
url: "https://www.canlii.org/en/on/onca/doc/2007/2007onca8/2007onca8.html"
- title: "R. v. Bulman, 2007 ONCA 169"
url: "https://www.canlii.org/en/on/onca/doc/2007/2007onca169/2007onca169.html"
- title: "R. v. Bush, 2010 ONCA 554, 259 CCC (3d) 127"
url: "https://www.canlii.org/en/on/onca/doc/2010/2010onca554/2010onca554.html"
- title: "R. v. Censoni, [2001] O.J. No. 5189"
url: "https://www.canlii.org/en/on/onsc/doc/2001/2001canlii24627/2001canlii24627.html"
- title: "R. v. Dunn, 171 C.R.R. (2d) 262"
url: "https://www.canlii.org/en/on/oncj/doc/2001/2001canlii24627/2001canlii24627.html"
- title: "R. v. Hopkin, [2001] O.J. No. 3329"
url: "https://www.canlii.org/en/on/onsc/doc/2001/2001canlii24627/2001canlii24627.html"
- title: "R. v. Stellato, [1994] 2 S.C.R. 478"
url: "https://www.canlii.org/en/scc/doc/1994/1994canlii94/1994canlii94.html"
- title: "R. v. W.D., 1991 63 C.C.C. 397"
url: "https://www.canlii.org/en/scc/doc/1991/1991canlii93/1991canlii93.html"
- title: "R. v. Schwartz, [1988] 2 S.C.R. 443"
url: "https://www.canlii.org/en/scc/doc/1988/1988canlii11/1988canlii11.html"
- title: "R. v. Poel, [2012] O.J. No. 4146"
url: "https://www.canlii.org/en/on/oncj/doc/2012/2012canlii67819/2012canlii67819.html"
- title: "R. v. Rhyason, [2006] S.C.C.A. No. 483"
url: "https://www.canlii.org/en/scc/doc/2006/2006canlii67819/2006canlii67819.html"
- title: "R. v. Arrigo, [2009] O.J. No. 5520"
url: "https://www.canlii.org/en/on/onsc/doc/2009/2009canlii67819/2009canlii67819.html"
final_judgement: "The accused was found guilty on both counts: operating a motor vehicle while impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code and having a blood alcohol concentration in excess of 80 milligrams of alcohol in 100 millilitres of blood while operating a motor vehicle contrary to s. 253(1)(b) of the Criminal Code."
---
# Court File and Parties
**Court File No.:** Halton 2584/11
**Date:** August 12, 2013
**Ontario Court of Justice**
**Between:**
**Her Majesty the Queen**
**— And —**
**Maryan Mudryk**
**Before:** Justice F.L. Forsyth
**Heard on:** August 22, August 23, August 29, August 30, December 12, December 18, 2012 and April 3, 2013
**Oral verdicts of guilty rendered on:** June 10, 2013
**Written reasons for Judgment released on:** August 12, 2013
**Counsel:**
Monica Mackenzie — Counsel for the Crown
Ernst Ashurov — Counsel for the defendant Maryan Mudryk
---
# FORSYTH J.
## Summary of Evidence at Trial
[1] Mr. Mudryk was charged with one count of operating his motor vehicle while his ability to do so was impaired by alcohol, contrary to s. 253(1)(a) of the Criminal Code and also with a count of having a blood alcohol concentration in excess of 80 milligrams of alcohol in 100 millilitres of blood while operating his motor vehicle, contrary to s. 253(1)(b) of the Criminal Code.
Both charges arose out of an incident on August 11, 2011.
He retained Mr. Ashurov on these charges and after the Crown elected to proceed summarily on both counts on August 22, 2012 he entered a plea of not guilty to both charges.
[2] At the outset of the trial there was an order excluding witnesses with no exceptions and it was agreed by both Crown and defence counsel that the matter would be conducted as a blended trial and ss. 8, 9, 10(b) and 24(2) Charter application.
In addition, both counsel informed the Court that there would be a s. 7 Charter application and a voluntariness voir dire required with respect to utterances made by Mr. Mudryk to the investigating officers.
[3] The first witness called by the Crown was Zvonimir Pejakovic.
Mr. Pejakovic testified in Chief that on August 11, 2011 he had been driving northbound on Sutton Drive in the City of Burlington toward a stop light at the intersection of Sutton Drive and Dundas Highway.
He came to a stop at his red light at the intersection and was waiting for a dump truck that was proceeding eastbound from his left to pass by before he turned right to travel eastbound on Dundas Highway as well.
While waiting there he noticed a minivan stopped on the other side of Dundas facing westbound at the intersection of Sutton and Dundas.
It appeared to be waiting to make a left-hand turn to travel southbound on Sutton.
[4] He noticed the van begin to slowly make a left turn and at the same time he heard the sound of brakes being applied coming from the truck to his left.
He said that the dump truck collided with the turning minivan while the traffic light for both the van and the truck was yellow at that time.
As a result of this collision he said that the van was driven into a highway light standard pole.
He said that he believed that the truck had hit its brakes just as the van began to make its left-hand turn in front of the truck.
[5] Mr. Pejakovic said that as soon as the collision had occurred he got out of his vehicle and ran over to the van and gave the driver a bottle of water.
He noticed that the driver was trapped in the driver's seat but he said that the driver was able to open the water bottle.
There is no issue on this trial that the driver was the accused, Mr. Mudryk.
Mr. Pejakovic said that his wife called the police and about 10 minutes later a first responder appeared on the scene and it was a fire truck.
[6] He said that he had walked away from the driver as soon as he had given him the water bottle, but he noticed that some others did try to comfort him.
He said that he had not observed any alcoholic beverages in the van when he gave the water bottle to the accused.
[7] He said that he had asked the accused if he was okay and the accused responded, saying that he was, but, in Mr. Pejakovic's opinion, he looked shocked and scared.
[8] He said that he had gone around to the back of the van to see if he could remove some items from the back to help get the accused out of the van, but he was unable to do so other than the fact that he took some cables and other materials out of the van.
He did not recall any particular company logo on the van.
[9] In cross-examination he said that the collision had occurred at about 2:00 p.m.
His wife was sitting next to him in their car.
The light for him at Sutton and Dundas was green as he approached.
He said that the truck had been travelling fast downhill at about 60 kilometres per hour, in his opinion.
He also said that the speed limit at that point was 60 kilometres an hour.
He agreed with the suggestion that it would be legal to make a left-hand turn on a yellow traffic light.
[10] He said that he had spoken to an officer at the scene and given a formal statement to P.C. Urie in February of 2012.
Mr. Ashurov showed him two statements and he identified each of them and said that he had read them before giving evidence.
[11] He was referred to his August 11, 2011 statement which was in writing and he agreed that he had told the police that the truck had been travelling at full speed and he meant by that phrase not slowing down for the yellow light and going about 60 kilometres an hour at the time when it entered the intersection.
He said that he agreed that he had told the police that the truck was going "very, I'm telling you, fast" down the hill at 60 kilometres per hour or more.
He said that it certainly seemed very fast for a dump truck.
[12] He then testified that he thought that the truck was about 20 feet from the intersection when the van began its left-hand turn in front of him.
However, he agreed when shown his police statement that he had told the police that the truck was about 150 feet or so from the intersection and he had said that the truck should have been able to see the van and slow down for the van to make its turn.
He had also said that the truck was coming down hard and the intersection was clear for the van.
This statement was given about 1½ hours after the actual collision on August 11, he said.
[13] Mr. Ashurov referred him to some interaction between him and the investigating officer at the scene of the collision.
He said that the officer had asked him to exit his vehicle and wait some distance away for another officer to take his statement.
[14] He said that, in his own opinion, the truck could have slowed down or the van could have executed its left-hand turn faster instead of moving so slowly.
[15] Mr. Ashurov referred him then to his February 26, 2012 second police statement.
He explained that the second statement had come about because his wife had told him that P.C. Urie had called the house and said that the accused person was now saying that someone had given him some alcoholic beverage to drink.
Therefore, he said that his wife told him that he should write out a statement of exactly what he had done at the scene, especially with respect to what he had given the accused to drink.
Therefore, Mr. Pejakovic said that he wrote a statement out and included in it the fact that he had given the accused a water bottle.
This information, he agreed, was not included in his August 11, 2011 statement.
He pointed out that in his August 11 statement he did tell the officer that he had asked the accused if he wanted water but that he received no answer.
At this point in his cross-examination he said he was 100 per cent sure, however, that he had told a female officer that he had given the accused a bottle of water.
He did not know why that officer, if he had done so, did not write it down in his statement and he did not recall whether he had read his statement before he signed it.
This answer referred to his August 11 statement.
[16] With respect to his February 26, 2012 statement he said that he had given the driver a bottle of Nestle's water because 99 per cent of the time he and his wife buy that brand of water.
[17] He agreed that of course he did not see what the driver was doing after he walked away from the van.
[18] He said that it took a good hour for the fire department personnel to extricate the accused from the van and he could not really see what they were doing to accomplish that rescue.
He said that nobody was standing right beside the driver's door watching the accused as far as he could recall.
[19] In re-examination he told the Crown that rescuers were working right around the van, however.
He said that the intersection was clear and, as he had said in his police statement, no other vehicles were in the intersection.
[20] At this point Mr. Ashurov asked leave of the Court to continue his cross-examination.
The Crown consented and I agreed.
[21] Mr. Pejakovic told Mr. Ashurov that the bottle of Nestle's water that he had given the accused had a blue and white label on it and the words "Pure Life".
Mr. Ashurov then showed him a photograph of a water bottle that was sitting inside the driver's compartment of the accused's minivan in the photo.
Mr. Pejakovic said that what he was looking at in the photograph was certainly not the water bottle that he had given to the accused from all appearances.
On consent, photographs of the driver's compartment of the accused's van showing a plastic bottle in the compartment were entered as Exhibits 2A and 2B.
[22] The next witness was Bita Pejakovic who testified in Chief that she is the wife of the first witness and that she was a passenger at the time in her husband's vehicle.
Asked for a recitation of her observations of the events that led up to the collision, she gave a very similar account to that of her husband.
She concluded by saying that when the light was yellow for eastbound and westbound traffic on Dundas the van began its left-hand turn and the dump truck collided with it in the intersection.
[23] She said that she had seen some people removing what looked to her like some Bell Canada equipment from the rear of the accused's van.
[24] She said that her husband had given one bottle of Nestle's Pure Life water from their vehicle to the driver.
She explained that she always buys that brand of water.
[25] She said that the truck had been approaching the intersection at a fast rate of speed.
She said that she called 911 herself and the operator hung up in the middle of her call and she was not sure how long she had been on the phone with the operator.
[26] Mr. Ashurov began his cross-examination, but it was interrupted due to the fact that the 911 call CD could not be located to assist him in cross-examining Mrs. Pejakovic.
Therefore, his cross-examination was mainly postponed to the next day, August 23, 2012.
[27] The Crown then called Kelly Hassall who testified in Chief that she was driving westbound on Number 5 or Dundas Highway at the time.
She stopped her vehicle at the intersection of Dundas and Sutton because her traffic light was yellow.
She described the highway as having two driving lanes and a left-hand turn lane at that intersection for westbound traffic.
Her cousin was in the passenger seat.
She turned to look at her infant son who was in the back seat when the light turned red and, as she did so, she heard her cousin gasp.
She therefore turned back and observed the dump truck colliding with a van which then struck the light standard pole.
She turned her vehicle to the right and got it off of the travelled portion of the roadway and called 911.
She estimated that this call was not more than a minute after the collision.
About five minutes later, rescue vehicles arrived.
[28] She said that there had been no vehicle in front of her when she stopped her own vehicle at the yellow light, but she said that there may have been a vehicle to the left of her in the left-hand turn lane, although she was not 100 per cent sure.
[29] She said that she had absolutely no interaction with the drivers of either the dump truck or the van.
[30] In cross-examination she agreed that her five-minute estimate of the time that it took for the first rescue vehicle to arrive was exactly that, an estimate.
[31] The next witness called by the Crown was Andrea Machry who testified in Chief that she had been driving eastbound on Dundas Highway towards the Sutton intersection in one of the two driving lanes.
As she was behind a large dump truck in the right-hand lane, she moved into the left-hand lane in order to pass the dump truck, but she was still about 50 metres or so to the rear of it when she noticed the light turning yellow for eastbound traffic at Sutton.
Therefore, she braked her own vehicle and slowed down for the yellow light.
She said that the dump truck did not seem to slow down or brake at all.
She estimated that both she and the truck had been travelling at approximately 60 kilometres per hour.
[32] She said that she then noticed a van begin to make a left-hand turn from the westbound driving lanes of Dundas and at that point the dump truck braked but struck the van on the passenger side in the intersection.
The impact caused the van to be driven into the light standard pole on the south-east corner of the intersection and the pole fell to the pavement with part of it being on and under the van.
[33] She said that she immediately called 911 and less than a minute later she had exited her vehicle and spoken to the driver of the van, who would be the accused, and told him she had called the police and not to worry.
She asked him if he was okay.
She said that she was talking to him while she was on the 911 call and walking.
She said that he seemed stunned and was blinking and staring straight ahead.
[34] She said that she then helped others remove some boxes from the interior of the rear of the van out of it.
[35] She said that she had stood about three feet away from the driver's door when she was asking him about his condition.
She said that she saw the driver drinking from a water bottle.
She said that she did not see or recognize any beverage containers that looked as if they would be alcoholic beverage containers.
[36] She said that she had seen the dump truck brake lights come on just as the van began to make its turn in front of the truck.
[37] In cross-examination she said that she believed that one of the ladies she had seen in court on the day when she testified had been standing beside the van driver's door, but it was not the previous witness, Ms. Hassall.
[38] She agreed that in her police statement given at the scene she had told the officer that the dump truck had no "intention" of slowing down, in her opinion.
[39] She agreed that on March 6th, 2012 P.C. Urie had asked her for a second statement, particularly because he wanted to know if she had noticed any alcohol beverages in the van at the time.
Mr. Ashurov produced both her August 11, 2011 statement and her March 6, 2012 statement to her.
She agreed that her memory of the events would be better, of course, on August 11, 2011 than on March 6, 2012.
[40] She agreed that P.C. Urie had told her that the van driver had been charged with impaired driving.
She agreed that March 6, 2012 was the first time she had even tried to remember whether or not the driver had a water bottle in his hands.
She agreed that at the scene of the collision when she stood at the driver's door she did not notice any odour of alcohol coming from the vehicle.
[41] She agreed that the bottle that she is calling a water bottle "looked like" a plastic water bottle, perhaps of the 500 mL size, and then she said that it appeared to be small.
When Mr. Ashurov questioned her about the seemingly uncertain phrase "looked like", she said that did not mean that she was not sure because when she was testifying in court on August 23 she was quite confident to say that it was a plastic bottle, but she just can't be certain of the contents of it.
[42] After she identified her voice on her 911 call tape, Mr. Ashurov played the 911 call in court for her.
Upon its conclusion, she agreed with his suggestion that there was a pause after she asked how the occupants of the van were doing and that voices seemed to answer but she agreed that the voices sounded far away.
Therefore, she was prepared to agree with Mr. Ashurov that she could not have been speaking to the driver, the accused, at that moment.
On consent, this 911 CD became Exhibit Number 3 in this trial.
[43] Of course she again agreed that her memory would not have been as good with respect to details of the event when she was being questioned by P.C. Urie on March 6, 2012 as it would have been on August 11, 2011.
[44] She said that today she could say that she recalled the accused drinking from a water bottle, but she agreed that she had not recalled that fact during any of the times when she thought about the matter since August 11, 2011.
[45] Finally, she said that she did not see any alcoholic containers lying around the van.
[46] In re-examination she told the Crown that she believed that she had spoken with the driver at least once and maybe a second time when she returned to the driver's door of the van.
[47] The next witness called by the Crown was Travis Marrs who testified in Chief that he was driving in the left-hand turn lane at Number 5 Dundas Highway and Sutton intersection behind the van.
He said that when the van was about 100 yards in front of him it began to turn left on the yellow light which, in his estimation, was about to turn red.
He saw the dump truck coming eastbound at what he estimated to be 80 to 90 kilometres per hour and he said that it did not brake until it was almost at the stop line of the intersection in the eastbound right lane.
He said that the van had already begun its turn by that time and it was struck by the truck and driven into the light standard pole on the south-east corner.
[48] He called 911 and exited his vehicle and walked over to the van and spoke to the driver, the accused, to determine if he was all right.
He said that he determined that the accused was okay and he said that he also noticed a woman standing around there too and he described what both counsel agreed would seem to have been Mrs. Pejakovic.
[49] He said that the accused was pinned in the driver's compartment and had nowhere to go, although he was able to move his arms.
He was trying to move his legs, but to no avail.
[50] He said that he did not observe any beverages inside the van and he helped others to empty the back of the van.
[51] He said that when the responders arrived they asked him to stand back from the scene, and of course he complied.
[52] In cross-examination he said that he had stuck his head right up to the driver's window on the van when he was checking on the accused.
He estimated that his own head would have been about three feet from the accused's head and he had asked the accused if he wanted him to call anyone, but the accused did not take him up on that.
In this position and this distance from the accused's head, he said he did not smell any alcohol coming from the vehicle.
[53] He said that the accused had no speech problems, although he appeared to be shocked.
He said he did not see the driver drink anything at all while in his presence and he did not see any containers that would have reminded him of alcoholic beverages when he was helping others empty out the back of the van.
[54] Once again, Mr. Ashurov produced what turned out to be a second statement of this witness given to P.C. Urie in March 2012.
He said that P.C. Urie had called him and told him that the accused was now trying to get his charges dropped because he had either consumed alcohol just before or just after the collision and before the first responders arrived.
[55] He was shown Exhibit 2A and 2B which were the photographs of a plastic bottle in the driver's compartment.
He said, however, that he had not noticed that bottle at the time.
[56] Mr. Ashurov introduced through this witness Exhibit 4A which depicted scattered items from the interior of the van on the ground outside according to the witness. 4B, he agreed, was simply a close-up of 4A. 4C appeared to be a beer can, a hammer and a battery pack, he said.
[57] In re-examination, the Crown showed him Exhibit 4A which appeared to contain a seat from the van and Mr. Marrs said that he had not removed the seat, nor had he touched it at the time.
Shown 4C he also said that he never handled the items depicted in 4C.
[58] After this witness the Crown called back Bita Pejakovic for cross-examination by Mr. Ashurov.
She was referred to her August 11, 2011 police statement and in that statement she had told the police that the truck had run the yellow light and that she would have stopped had she been driving the truck.
She expressed the opinion that vehicles often run the red light at that particular intersection.
She said that the truck, in her opinion, had been travelling faster than 60 kilometres per hour.
[59] She said that her husband had told her that he was going to take a bottle of water over to the driver from their cooler in their vehicle and that is what he did.
She said that she had never left their vehicle.
She also said that her husband never ever went to the back of the van.
[60] Mr. Ashurov then played her 911 call and my own observation was that she was very obviously upset while she was reporting the accident to the police.
[61] With respect to P.C. Urie calling her on February 12, 2011 she said that he had told her that he needed a second statement from her husband.
She said that the officer never told her that the accused was trying to say that he had consumed alcohol after the accident, however.
On consent, her 911 call was entered as Exhibit Number 5 in this trial.
[62] She agreed that she had not mentioned the fact that her husband had given the accused a water bottle in her statement to the police and she pointed out that she was not asked about it on August 11, 2011.
Therefore, February 12, 2011 is the first time that she had told anybody about the water bottle.
[63] She said that she wrote out her husband's February 12, 2011 statement to P.C. Urie for him because her husband does not write well in English.
[64] In re-examination, the Crown introduced as Exhibit Number 6 a photograph of her own vehicle and the position in which it was parked at the collision scene.
[65] The next witness called by the Crown was P.C. Mark Urie who testified in Chief that he has been a Halton Regional Police Constable since 2003.
He was on uniform patrol on August 11, 2011 and at 2:48 p.m. he was dispatched to the intersection of Sutton Drive and Number 5 Dundas Highway.
His notes and a will-say statement that he had prepared were qualified and he was permitted to refresh his memory from them during his testimony.
[66] He said that when he arrived at the scene about 2:50 p.m. he found the minivan driver trapped in the driver's compartment of the vehicle where it was sitting at rest having collided with the light standard pole on the south-east corner of the intersection.
He believed that he was the first responder to arrive and he believed that the collision had occurred immediately before the dispatch time of 2:48 p.m.
[67] He said that the speed limit at that intersection was 80 kilometres per hour on Dundas Highway on August 11, 2011, but in the spring of 2012 it was reduced to 60 kilometres per hour.
[68] The Crown directed him to his observations at the scene of the collision.
He said that a couple of people were standing nearby the driver's door of the van when he arrived.
He observed very severe damage to the passenger side of the van.
He said that the front of the dump truck was actually protruding into the passenger side interior of the van.
The lower portion of the light standard which had been knocked down was actually lying underneath the driver's seat.
[69] He checked out the condition of the dump truck driver and determined that he was all right.
He then checked out the accused, who was the driver of the van, and before doing so he asked people who were standing around the van to move back for safety reasons because the light standard could actually end up falling further and might strike them.
It was totally bent out of shape, he said.
[70] When he approached the accused in the driver's seat he asked him if he was okay and the accused said that he was.
He said the accused told him that he was just pinned and also that there were no other passengers in the vehicle to be concerned about.
He observed that the accused's eyes were glossy and red and he detected a strong odour, which he attributed to the deployed airbag on the driver's side of the van.
He also said that he observed extensive damage to the interior of the driver's compartment and that the driver's door was bent into a "U" shape.
[71] He said that the accused seemed to be able to move his arms freely and he had a plastic bottle of water in one hand in which there was still some liquid.
He opined that the accused would have had limited ability to access other areas of the van besides the driver's compartment.
He said that he did not see any alcoholic beverages in the driver's compartment or in the front passenger area or the rear passenger area.
[72] He stayed with the accused for a minute or so before the arrival of EMS and fire department personnel.
He then decided to speak to some of the witnesses who were standing around the scene.
From them he concluded that the dump truck had struck the van which was turning left at the yellow light while the dump truck drove into the intersection on the yellow light.
He said that this opinion was consistent with the resting point of the two vehicles and the visible damage.
[73] He said that it took an hour to extricate the accused from the driver's compartment and he watched the process.
While this was happening he saw alcoholic beverage containers being emptied out of the van by the rear of the van and placed on the ground.
Amongst these items he said that he noticed a glass bottle of Silent Sam vodka, 1.4 litres in size.
He said that this bottle was empty but its cap was on.
He also noticed a plastic battle of Polar Ice vodka, 10-ounce size, empty as well.
There was also a crushed beer can and also a mouthwash bottle with liquid in it.
[74] The Crown introduced as Exhibit Number 7 through the officer a bag with alcohol beverage containers which the officer described as one Laker Ice beer can, crushed, 5.5 per cent alcohol strength, a second Laker Ice beer can crushed at 5.5 per cent alcohol strength, a Banff Ice Vodka bottle, 375 millilitres in volume, a can of Lakeport Pilsner beer at 5 per cent alcohol strength, crushed, a glass bottle of Silent Sam vodka, 40 per cent alcohol strength, 750 millilitres, empty and damaged on one side.
[75] When asked about his earlier description of a plastic Polar Ice vodka bottle, he said that he believed that he made a mistake and mistook the Banff Ice vodka bottle for a Polar Ice vodka bottle.
[76] He said that the accused certainly did not consume any alcoholic beverage while he, P.C. Urie, was watching him.
[77] The Crown referred him to an interaction that he had with the accused while the accused was inside the ambulance at the scene.
He said that he then noticed a strong odour of an alcoholic beverage emanating from the accused's mouth.
He asked him if he had been drinking that day and the accused answered "one beer, 10:00 a.m.".
[78] At 3:45 p.m.
P.C. Urie said that he had formed his opinion that the accused had operated his motor vehicle while his ability to do so had been impaired by alcohol and he, therefore, arrested him on a charge pursuant to s. 253(1)(a) of the Criminal Code.
[79] At 3:50 p.m. he provided the accused his rights to counsel and when asked if he understood them he said the accused said "yes", but at that time he declined the opportunity to speak to a lawyer by saying"Not right now".
At 3:51 he provided the standard caution to the accused and Mr. Mudryk said that he did understand that caution.
At 3:52 he made a demand for samples of the accused's breath pursuant to s. 254(3) of the Code and when asked if he understood the accused said"Yes, I do".
[80] The Crown asked the officer to recite his reasonable and probable grounds for his arrest and he said that he included in that opinion the information he had received about the physical appearance of the collision scene, as well as information received from eyewitnesses to the collision, as well as his observations of the accused's red, glossy eyes and the alcohol containers that were found in the vehicle.
He also said that the accused's response of having had one drink at 10:00 a.m., plus the existing odour of alcohol on his breath, had also contributed to the formation of his opinion.
[81] At 3:51 p.m. he said that the ambulance left with the accused for Joseph Brant Hospital in Burlington and he called in a request for a qualified Intoxilyzer technician to be sent to the hospital.
He himself rode to the hospital with the accused in the ambulance.
Once arriving at Joseph Brant Hospital the accused was assessed by the hospital personnel.
[82] At 4:28 p.m. he provided the accused with his rights to counsel again before the first breath test was going to be administered, but the accused again declined to exercise that right.
[83] At 4:38 p.m. he said that P.C. Caron arrived at the hospital with an Intoxilyzer 8000C.
P.C. Caron was the qualified Intoxilyzer technician.
He said that Mr. Mudryk was then brought into Trauma Room A in the hospital and placed on the bed in that room.
P.C. Urie then testified that he completed his Intoxilyzer information sheet and gave it to P.C. Caron and that the contents were virtually the same as the evidence that he had just given viva voce about his RPG for the arrest of the accused on the s. 253(1)(a) charge.
[84] He said that at 5:02 p.m. he turned the accused over to P.C. Caron and he remained in the presence of Caron and the accused for the breath tests.
[85] At 5:38 p.m. he said that the accused was returned to his custody with the results of the Intoxilyzer tests.
After hearing about the readings, he said that he then charged the accused with one count pursuant to s. 253(1)(b) of the Criminal Code and turned the custody of the accused over to another officer.
[86] He said that the next day, on August 12th, he had received some information from the accused's wife.
[87] In cross-examination P.C. Urie said that he had been a qualified Intoxilyzer technician since 2007.
He said that he had prepared a will-say statement on or after August 11, 2011.
In early February 2012 Charon Kerr from the Crown's office requested more information from witnesses and from him with respect to the evidence, if any, of the accused having the ability to access alcoholic beverages after the collision.
He said that Ms. Kerr told him that alcohol consumption by the accused after the collision had been raised at the judicial pre-trial by Mr. Ashurov.
Therefore, the officer said that he spoke to the witnesses Machry, Marrs and Mr. Pejakovic.
He said that he also spoke to other persons whom he believed had not been in a position to observe such alleged activity by the accused, but nevertheless he felt he should speak to them.
[88] He agreed that his reference to the accused having a water bottle in his hand in the vehicle when he observed him is not in his August 11, 2011 statement.
Nor was it in his notes that he prepared while investigating the collision or in his will-say statement.
It is only in his supplementary will say statement that he has made reference to that observation and he prepared that supplementary statement after Ms. Kerr had asked him to try to recall any other details.
Therefore, he seemed to be testifying that the reference to the accused having a water bottle occurred to him as an afterthought after he was prompted to try to search his memory for further details by Ms. Kerr.
[89] With respect to his reference in his February 2012 will-say statement to the water bottle being given to the accused by a witness, he said that he knows that one of the witnesses had told him that that had occurred, but he could not say which one.
[90] He agreed that in his February 2012 statement he had said that he had looked carefully inside the accused's van and did not see any alcoholic beverage containers visible at that time.
He said that he did not see any such containers until about 20 minutes before Mr. Mudryk was extricated from his pinned position in the driver's seat, and the ones that he did see were in the rear passenger area.
He explained that he had been standing at the back of the van with the hatch raised up when he made this observation.
He said that he had observed the fire department personnel as they found these containers on the floor of the van when the seats were being removed from the van as part of their attempt to extricate the accused.
He agreed with the suggestion that these containers could have been in the van for a long time for all he knew.
[91] He agreed that the air bag deployment had left an overwhelming odour in the vehicle, but he denied being able to detect the odour of any gasoline or antifreeze.
[92] With respect to the speech pattern of the accused when he was dealing with him, he said that Mr. Mudryk's speech was not slurred and that it was simply noticeably accented.
[93] He said that he had no recollection of the dump truck driver telling him that he had entered the intersection on a green light.
Nor did he have any recollection of Ms. Hassall telling him that the dump truck had driven through a red light.
[94] Mr. Ashurov then questioned him about the physical symptoms that he had noticed about Mr. Mudryk at the scene.
The officer agreed that the red glossy eyes could be consistent with acid vapours released from the airbag explosion and also the trauma of a serious collision.
[95] He maintained that he had kept an eye on the driver's seat of the van even when he was talking to witnesses some distance away.
He agreed that in his August 11, 2011 notes he had noted that he had close contact with the scene as opposed to close contact with the accused, the driver.
He said that he meant the same thing on each occasion when he had referred to this evidence and that was that he had not had "involved contact" with the accused at the scene.
[96] He agreed with the suggestion that the extreme odour of alcohol that he had noticed in the ambulance coming from the accused's breath could mean recent consumption of alcoholic beverages by the accused.
[97] He said that he did believe that the collision had occurred at approximately 2:45 p.m. and he had no trouble agreeing that if the accused had only had one beer at 10:00 a.m. the alcohol from that beer would have been eliminated from the accused's system by 2:45 p.m.
[98] For what it's worth he agreed with Mr. Ashurov that he had conducted an investigation into numerous "T-bone" motor vehicle collisions which did not necessarily involve a driver who had been impaired by alcohol in the vehicle that had struck another vehicle broadside.
[99] The cross-examination was then interrupted by the end of the court day and the matter was remanded for continuation to August 29, 2012.
On that day Mr. Ashurov continued the cross-examination of P.C. Urie.
[100] The officer said that he had charged the driver of the dump truck with Highway Traffic Act offences involving an alleged misalignment of his rear brakes.
He said that the Dundas Highway road surface at the time in the area of the collision was wet from water sprinklers at the roadside, but he did not know whether this had affected the truck's ability to stop in time to avoid a collision.
[101] He said that he had no idea whether medications had been given to Mr. Mudryk at the hospital before he provided his breath tests.
He was aware of the fact that he had been diagnosed with a broken arm and broken ribs, a punctured lung and a fractured vertebra.
He said that as far as he knew, Mr. Mudryk weighed 80 kilograms at the time or 176 pounds.
[102] In re-examination he said that he had noted the posted speed limit of 80 kilometres an hour in the area of the collision.
[103] He also said that the formation of his RPG for the arrest on the 253(a) count had been distilled from a constellation of factors and symptoms available to him.
[104] Mr. Ashurov once again asked leave of the Court to pose an additional cross-examination question to the officer.
The Crown did not object and he was allowed to do so.
The officer told Mr. Ashurov that Mr. Mudryk himself had told him that his body weight was 80 kilograms.
[105] The next witness called by the Crown was P.C. David Caron who testified in Chief that he is a Halton Regional Police Service officer and also a qualified Intoxilyzer 8000C technician.
He was dispatched to the Joseph Brant Hospital on the day in question to conduct breath tests on Mr. Mudryk.
He arrived at 2:38 p.m. and brought an Intoxilyzer 8000C with him from the station.
He met with P.C. Urie who gave him his RPG.
He said that at 4:47 p.m. he formed the opinion that Mr. Mudryk was impaired.
He provided him with his rights to counsel, a caution and his own separate s. 254(3) demand.
[106] He said that he had set up the 8000C and put it through its self-diagnostic procedures and all of the results and calibration tests printed out by the instrument seemed to be within the proper parameters.
[107] He said that he had taken a breath sample at 5:07 p.m. from Mr. Mudryk which registered a reading of 291 milligrams of alcohol per 100 millilitres of blood.
At 5:31 p.m. he took a second adequate sample which registered 275 milligrams of alcohol in 100 millilitres of blood.
[108] The Crown then intended to take the officer through his Alcohol Influence Report which included questions and answers between him and the accused between the two breath tests.
Mr. Ashurov indicated that a voir dire was required into the voluntariness of those utterances and, therefore, P.C. Caron was sworn in on a voluntariness voir dire.
[109] P.C. Caron testified that before he took either of the two breath samples from Mr. Mudryk he had spoken with the doctor who was attending him at the Joseph Brant hospital and he had been informed by the doctor that Mr. Mudryk could medically provide the breath samples.
[110] Between the two breath tests P.C. Caron conducted what he described as his alcohol influence report, a document which is commonly prepared by qualified Intoxilyzer technicians between the taking of the two breath tests.
He specifically testified that he had not threatened Mr. Mudryk or offered him any inducement or promise of favour or suggested any negative result to him if he refused to answer any of the questions which the officer was then preparing to ask pursuant to alcohol influence report.
[111] P.C. Caron described Mr. Mudryk as responsive although he did not know if he was on any medication at the hospital.
He said that to the best of his knowledge no other officer had threatened or offered any inducements or promises of favour to Mr. Mudryk either and as a matter of fact Mr. Ashurov was kind enough to inform the Court that that aspect of this voir dire was not really in issue.
[112] P.C. Caron then testified about the actual questions he had asked and the answers he received on the alcohol influence report.
He had asked Mr. Mudryk if he had been operating a motor vehicle and Mr. Mudryk said that he had been by answering 'yes'.
He asked him when he had been operating it and where he had started operating the vehicle.
With respect to the latter question, Mr. Mudryk gave an answer to the effect that he had begun driving from Guelph Line.
When asked what the time was at that moment in the interaction between Mr. Mudryk and P.C. Caron the officer said that Mr. Mudryk said that it was 3:00 p.m. when it was actually 5:00 p.m.
He asked him if he had been drinking and Mr. Mudryk answered "Yes, Laker – 1 beer at home began at 9:00 a.m. and finished 20 minutes later."
[113] In his final submissions later, Mr. Ashurov submitted that the Court should consider the answer by Mr. Mudryk that was driving from Guelph Line to be non-sensical and illogical given the fact that his vehicle was described as driving westbound towards Guelph Line at the time when the collision occurred at the intersection of Dundas Highway and Sutton Drive.
[114] P.C. Caron said that Mr. Mudryk did not complain of being ill and did not indicate that he was taking any medications at the time.
[115] When he was asked if he was injured as a result of the accident he said that he had been and it was his right arm.
He said that he had not bumped his head.
[116] At one point P.C. Caron said that he had asked Mr. Mudryk if he had been drinking alcoholic beverages since the accident and Mr. Mudryk denied that he had done so.
[117] Describing his physical observations of Mr. Mudryk at the time, P.C. Caron said that he had detected the odour of an alcoholic beverage on his breath and that his eyes were blood shot and red rimmed with dilated pupils.
He described him as being cooperative and indifferent in his attitude.
He said that his speech was fair with an accent.
He concluded that the effects of alcohol upon Mr. Mudryk were obvious to him and that his ability to operate his motor vehicle was impaired by alcohol.
[118] After the second test had been concluded, P.C. Caron said that he informed Mr. Mudryk of the results and told him quite frankly at that time that he did not believe Mr. Mudryk's one beer story.
At that point he said Mr. Mudryk then told him that he had consumed maybe five to six beers and lots of vodka the previous evening until approximately 1:00 or 2:00 a.m.
[119] In cross examination he agreed with Mr. Ashurov that he had only written the words "How many drinks?" in his notebook as a reference to the question he asked Mr. Mudryk after the second breath test when he told him that he didn't really believe the story.
He agreed that his opinion of the impairment of the accused was based on the information received in P.C. Urie's RPG for arrest sheet and also on his own observations of the accused.
[120] The Crown then closed its case on the voir dire with the evidence of P.C. Caron being concluded.
[121] Mr. Ashurov called Mr. Mudryk as a witness on the section 7/voluntariness voir dire.
He said that he is 36 years of age and is now a Canadian citizen, although originally emigrating from the Ukraine.
He is married and has two daughters, no criminal record and, at the present time, unemployed.
[122] On August 11, 2011 he was working as a Bell Canada company contractor to install satellite TV dishes often involving installations on roof tops.
[123] He said that after the collision he was in a state of shock and he did not even realize what had happened fully.
He said he certainly was not thinking straight.
When he was at the hospital he had an IV of some unknown substance given to him by the medical personnel which made him feel good, kind of a light feeling, he said, not like the feeling he had when he first arrived at the hospital.
[124] He said that he recalled speaking to P.C. Caron and he answered his questions because, according to law, one must respond to police questions.
He explained that this was exactly the way it was when he was living in the Ukraine.
He also said that because he had had a collision with a truck, he realized that he had to answer any questions that the officer asked about the collision and this was all part of the procedure.
He claimed not to have even realized that he had been arrested by P.C. Urie for any criminal offences until a later day when he had taken the time to read the paperwork given to him.
[125] Mr. Ashurov asked him if he recalled being offered the opportunity to speak with a lawyer by the police and he said"Yes, I think they did, but I wasn't paying too much attention at that time".
[126] Mr. Ashurov asked him why he had provided breath tests at the time and the accused said that they were simply part and parcel of the procedure that was required after a motor vehicle collision.
Again, he pointed out that this was the same as in the Ukraine.
[127] He confirmed his injuries by stating that he had a broken arm, a broken vertebrae, broken ribs and one of those broken ribs had punctured one of his lungs.
He also had contusions on both knees.
[128] At this point in Mr. Mudryk's evidence in Chief the Crown interrupted and asked if it would be possible to interrupt the actual voir dire to accommodate a witness from the Centre of Forensic Sciences (CFS), and Mr. Ashurov consented to that request.
[129] The Crown then called Dr. Darryl Mayers who testified in Chief that he is a CFS toxicologist.
Mr. Ashurov consented to have me qualify Dr. Mayers as an expert witness capable of giving toxicological evidence with respect to the absorption, distribution and elimination of alcohol in the human body and also on the effects of alcohol on the human body and the ability to operate a motor vehicle.
[130] Dr. Mayers said that he had listened in court to the evidence of P.C. Caron and he was of the opinion that P.C. Caron had operated the Intoxilyzer 8000C in a proper fashion.
[131] Referring to his report, he said that his conclusion was that Mr. Mudryk's blood alcohol concentration at the time of the collision, which had been information that he had gleaned from Crown disclosure provided to him, would have been between 275 milligrams of alcohol in 100 millilitres of his blood and 325 milligrams of alcohol in 100 millilitres of his blood.
[132] Dr. Mayers then said that such a BAC level would, of course, render a person's ability to operate a motor vehicle impaired by that alcohol level.
He said that reaction times and choices of driving maneuvres are impaired at that level of blood alcohol concentration.
In addition, there would definitely be a loss of peripheral vision acuity.
[133] He said that in his opinion everyone's ability to operate a motor vehicle is impaired by alcohol at a BAC level of 50.
He was unaware of any other toxicologist having an opinion that it would take a reading of greater than 100 milligrams of alcohol in 100 millilitres of blood to have one's ability to operate a motor vehicle impaired by alcohol.
He said if there is any debate, it is about the levels between 50 and 100.
[134] Mr. Ashurov did not take any serious issue with the evidence of Dr. Mayers.
The trial was then remanded to August 30, 2012 for the continuation of the evidence of Mr. Mudryk on the voir dire.
Mr. Ashurov informed the Court that he had completed his examination in Chief and cross-examination then was conducted by Ms. Mackenzie.
[135] The accused said that he was able to recall the actual collision and the fact that people had approached his van to offer help to him, but not necessarily all of the details.
He recalled "Bill" Pejakovic asking him if he was okay.
He recalled answering that he was, but he said that he did not really understand the entire complexity of the situation at the time.
The Crown asked him if he recalled Mr. Pejakovic giving him a water bottle and Mr. Mudryk said that he did, but he pointed out that the photographic exhibit shows a different type of water bottle with a different name on it than the one which was given to him by Mr. Pejakovic.
Therefore, he was telling the Court that he can remember that particular minute detail.
[136] He said that he sort of recalled Mrs. Machry being present as well.
[137] He did recall the police asking him if he was okay when they arrived.
When asked whether he could recall ambulance personnel talking to him and the fire personnel, he said that he could in general remember them.
He said that as far as he recalled, they were trying to get him out of the van.
The Crown asked him if would agree that he had been awake and conscious during all of this procedure and he disagreed by saying that it might be taking it too far to say that he was awake and alert.
He said that he was in shock and scared and disoriented.
[138] The Crown directed his mind to his interaction with the ambulance attendants and asked him if he recalled the police officer and an EMS person sitting in the ambulance with him.
His answer was that that would be normal for EMS to be present.
However, he did not recall two other people being in the ambulance with him, although he said that they could have been for all he knew.
He said that his field of vision was limited when he was in the ambulance.
He said that he did not hear two voices talking when he was in the ambulance.
[139] Specifically, he denied recalling being arrested in the ambulance and he did not recall telling anyone that he had had one beer at 9:00 a.m. when this was asked of him in the ambulance or perhaps at the hospital, if it was asked.
[140] Ms. Mackenzie then read in court the contents of the s. 254(3) Criminal Code demand for samples of breath to him and asked him if he recognized the wording.
He said that he did not recall that demand being read to him at the scene or while in the ambulance.
Neither did he recall a police caution being read to him.
Neither did he recall a demand for samples of breath being read to him at the hospital.
He said that he did recall a police officer standing nearby him in the hospital, but he did not recall if the officer was with him at all times.
[141] He had no recollection, he said, of the police asking him if he wanted to speak to a lawyer at the hospital.
[142] He said that he did recall a second officer at the hospital other than P.C. Urie, who had a device with him into which he was asked to breathe.
[143] He said he was not really sure that the police were investigating him as opposed to just collecting information as part of the procedure after a motor vehicle collision.
[144] He did agree that he was not surprised that the police asked him for breath samples because it was the same as in the Ukraine when you have an accident with a motor vehicle.
He said he first realized that he was charged with these offences the next day when he was showing his wife his paperwork that he had been given after being arrested and released later from the hospital.
He said that even when he signed his papers at the hospital he only put a "squiggly" on the paper because he could not really sign properly.
I assume that he meant because of his injury to his elbow.
[145] The Crown asked him what his comment was with respect to the witnesses who have testified and said that his responses to them were responsive and appropriate.
He said that he could not comment except to say that the questions asked by the civilians were very, very simple in content.
[146] He agreed that both officers who had questioned him had asked him if he understood and he said that he did tell them he understood because he understood generally but not all of the details.
He even expanded that answer by saying that even though in court he was being helped by a court accredited interpreter, he still could not understand all of the things that were being talked about in court.
[147] He said he had no idea what, if anything, was in the IV unit that he had in his arm at the hospital.
[148] The Crown then directed his attention to some of the questions and answers that P.C. Caron had discussed from the Alcohol Influence Report.
The accused said that he answered those questions because that is the law when police ask questions.
The Crown asked him if he agreed that he was under the influence of alcohol at the scene of the collision and in the ambulance and also at the hospital.
Mr. Mudryk said that he was not under the influence of alcohol in the van right after the accident, but he was under the influence in the ambulance and also at the hospital and also perhaps affected by some medications that had been given to him at the hospital.
[149] He then stated that he had had "a drink" after the collision and he said that that might have been affecting him at the time when he was discussing matters with P.C. Caron on the Alcohol Influence Report.
The Crown then asked him to quantify what he meant by "a drink" after the collision.
Mr. Mudryk said that he had consumed a full 375 millilitre bottle of vodka, plus one-third of another 375 millilitre bottle, which would therefore mean that he had consumed 500 millilitres approximately of vodka.
Both counsel agreed that that would equal approximately 17 or 18 ounces of vodka.
He explained that he had purchased two 375-millilitre vodka bottles just before he was involved in the collision with the dump truck.
[150] He then also explained that these bottles had screw tops on them which allowed him to unscrew them in order to consume their contents.
He said that he had gulped a few mouthfuls of the second bottle and that is why he was estimating that he had consumed approximately one-third of it after he had guzzled the entire 375 millilitre contents of the first bottle.
[151] In re-examination by Mr. Ashurov, he was asked what he had meant by stating that his field of vision had been compromised in the ambulance.
Mr. Mudryk said that he was facing the back door of the ambulance but he had a cervical collar on his neck and that is what he meant by the restriction of peripheral vision.
[152] Mr. Ashurov asked him for an explanation for his answer to P.C. Caron that he had been driving from Guelph Line when his vehicle had obviously been driving in a westerly direction towards Guelph Line before the accident.
Mr. Mudryk explained that he lived in Oakville and he was really driving from home in Oakville and that, therefore, he really was not going east from Guelph Line because he was driving in a westerly direction.
[153] At the conclusion of the re-examination by Mr. Ashurov, I asked some questions for clarification of Mr. Mudryk.
First of all, Mr. Mudryk confirmed that he was telling the Court that he had consumed one full 375-millilitre bottle of vodka and, in addition, approximately a third of a second 375-millilitre bottle of vodka after the collision and before the first emergency personnel responded.
I asked him why he only consumed a third of the second bottle and his answer was that because all of the emergency people had arrived, the police, the ambulance, and he did not really remember who arrived first, but he said they came right up to him and began to try to help him to try to drag him out of the vehicle.
[154] He told the Court that he had purchased the vodka bottles before arriving at that intersection and he had placed them on the passenger seat right next to him.
After the collision when he opened his eyes, he said they just happened to be "right there at my feet".
I clarified with him that what he was saying was that after the dump truck had smashed right through the passenger door and passenger side of his van, the bottles, as he said, got shifted right towards him.
He further explained that the bottles had been shifted to a point where they landed right next to his right thigh within his reach.
Mr. Mudryk demonstrated in court by placing his hand on an area of his right leg between his knee and his hip, and both counsel agreed that he appeared to be describing the thigh area of his right leg.
[155] I then asked Mr. Mudryk how he had been able to access those bottles given that the airbag had been deployed and he explained that both airbags had "shot out, they deployed, but this, this airbag was higher.
I, I mean it was somewhere up here that it didn't, you know, prevent me from reaching what was here".
[156] I then was able to clarify with Mr. Mudryk that he was trying to illustrate that the driver's side airbag, after it deployed, was about chest high where it settled on his body and, therefore, still allowed him to be able to reach down to his right thigh area to grasp the vodka bottles.
When I asked him to explain how he was able to get the deployed airbag out of the way of his face so that he could consume the vodka, he said that he thought he kind of turned or leaned sideways and turned a little bit so that he could take a drink "away from me".
[157] I then thanked Mr. Mudryk for answering these questions for my own clarification and asked both counsel if they had any questions arising out of my questions.
Ms. Mackenzie had none, but Mr. Ashurov did.
[158] Mr. Ashurov asked the accused how long the airbag had remained inflated.
Mr. Mudryk said that it was hard to say and said that it sort of sagged in front of him, it was limp in front of him, and together with the broken steering wheel, it was "right there staring at my face".
[159] Mr. Ashurov then asked Mr. Mudryk if the airbag had still been in his face when he began to drink the vodka and Mr. Mudryk responded"No, it was not.
No, it wasn't right at my face.
It was in front of me some a little bit of a distance here, it was kind of sagging.
I was able to move it.
Maybe it was, I don't know, partially inflated, but anyways I, I could just move it".
At that point he said that the airbag was perhaps close to a metre away from his face even before it sagged and he also said that it might have been partially deflated.
[160] At this point counsel and the Court engaged in a scheduling discussion after Mr. Mudryk was returned to his seat in the courtroom, but after that discussion I realized I had not covered an area of questioning for clarification, so I asked Mr. Mudryk to take the witness stand again.
At that point I covered the evidence that he had given that he had suffered a broken arm arising out of the collision.
He confirmed that it was his right arm and it was his forearm area that was broken.
I asked him if he had realized that his arm was broken at the time when he was drinking from the vodka bottles.
He said that he had felt the pain and also there was blood, but he had not realized that it was actually broken at that point.
[161] I then asked him if he could confirm that he was able to use the hand of his broken arm to handle the vodka bottles.
He said"Well, I, I was fine holding it, the bottle, but I of course, of course used the other hand to, to open the bottle".
Mr. Mudryk confirmed that by the other hand he had meant his left hand.
[162] Again, I asked counsel if either one of them had any questions arising out of the Court's supplementary questions for clarification and neither counsel did.
[163] Mr. Ashurov then closed the case for the defence on the voluntariness voir dire and the Crown did not call any reply evidence on that voir dire.
After scheduling discussions, both counsel agreed to make their submissions to the Court on the voluntariness voir dire on December 12, 2012.
The trial was accordingly remanded to that date.
[164] On December 12, 2012, at the outset of proceedings, both counsel asked the Court to entertain the submissions on the voluntariness voir dire after the Crown completed calling three additional witnesses.
Mr. Ashurov informed the Court that he would also be arguing his s. 7 Charter application contemporaneously with the voluntariness argument on the voir dire.
[165] The Crown then called Captain Chris Choluka who testified in Chief that he is a member of the Burlington Fire Department.
On August 11, 2011 he was dispatched to the scene of the collision.
He arrived with his crew at 2:53 p.m.
When he arrived he found one paramedic already present.
He noted that the dump truck had pushed the passenger seat of the accused's van forward and sideways around the accused driver's right arm and was, thus, pinning him into his driver's compartment.
[166] He found empty alcoholic beverage bottles and cans in the rear of the van and, in his opinion, they were inaccessible to the driver in his pinned in position in the driver's compartment.
He also said that he found no bottles or cans of an alcoholic beverage description in the driver's compartment area and he did not see the accused drinking from any kind of a bottle, including a water bottle.
[167] Captain Choluka said it took 45 minutes to extricate Mudryk from the vehicle.
He said that he personally was never closer than two or three feet away from Mudryk's face and body.
He also gave the opinion that Mr. Mudryk could not have been drinking any alcoholic beverages or, for that matter, any beverage at all while the process of extrication was taking place.
[168] In cross-examination he denied having been asked specifically by the police about Mr. Mudryk's opportunity to access bottles or cans of alcoholic beverages while in the vehicle.
He did agree that it was possible that some items may have remained in the van after the ones that he had observed being removed were removed.
[169] He said that he never had observed more than one ambulance at the scene when he arrived, but he did eventually notice that there were two paramedics present.
[170] In re-examination he said that the dispatch times are a matter of record on his fire department occurrence report.
He therefore was able to get those times for his notes from that report.
Mr. Ashurov then expressed a desire to have disclosure of that occurrence report and Ms. Mackenzie undertook to have Captain Choluka obtain it for him.
[171] I asked a question of Captain Choluka and he told me that he had not seen the airbag in the sense that he had not taken any note of the status of the airbag.
[172] The next witness called by the Crown was Timothy Nykamp who testified in Chief that he works with the Halton Advanced Care Paramedic Department.
He was dispatched at 14:48, in other words 2:48 p.m., and arrived at 2:54 p.m. at the collision scene.
Fire department personnel and one ambulance were already there when he arrived and his own supervisor arrived shortly after him.
[173] He said that he had spoken to the accused and found that his answers were vague and he had to repeat his questions to the accused.
He also noticed the odour of alcohol on the accused's breath.
[174] He had not noticed any alcoholic beverage cans or bottles in the driver's area of the vehicle, but on the other hand he said he was not really looking for any at that time.
[175] In cross-examination he said that on the day in question he had prepared a patient care report that was submitted to the hospital to which he took the accused.
In February 2012 he said the police had requested a statement from him.
Therefore, he had to ask the EMS management personnel to obtain that report that he had authored for him.
I should have mentioned that before he began his testimony in-Chief, that EMS report had been qualified and he was permitted to refresh his memory from it.
[176] He said that he did not recall, but it was possible that the police had told him that his February statement was needed because of their impaired driving investigation with respect to Mr. Mudryk.
[177] He said that he had been as close as a foot away from Mr. Mudryk's face while he was in his presence treating him and he had no trouble detecting the odour of an alcohol beverage on his breath as opposed to an odour of antifreeze.
[178] With respect to his EMS report which he actually produced at that point in his testimony because he did have it with him, he said that there was no reference in it to the vagueness of Mr. Mudryk's answers or that Mr. Mudryk had seemed to be too casual for the circumstances as he had testified in Chief.
This witness had also said that Mr. Mudryk was too casual, as well as giving vague answers.
He agreed that such comments were not in his ambulance call report either.
[179] He also said that he had inserted an IV saline solution bag connection into Mr. Mudryk's left elbow at the front of it and that that IV remained in that location until they reached the hospital.
[180] There was no re-examination by the Crown.
[181] The next witness called by the Crown was Detective Constable Kevin Rye who testified in Chief that he is an officer with the HRPS and he currently works in motor vehicle accident and collision reconstruction.
Previously he had police experience in Merseyside and Liverpool in the United Kingdom from 1988 to 2004.
He said that he had arrived at the collision scene at 3:41 p.m. and took photographs of that scene.
On consent, 15 photographs were introduced through him as Exhibit Number 10A through 10O.
[182] He said that he had not prepared an actual reconstruction report in this case.
He also said that he had not seen any bottles or cans in the driver's compartment that would appear to be alcohol beverage containers when he was taking his photographs.
[183] In cross-examination he said that he, of course, was not looking for alcohol beverage containers and, therefore, it was possible that there could have been one or more in the driver's compartment or the body of the van and he may not have noticed them.
[184] He said that the speed limit on Dundas Highway at the Sutton intersection at that time was 60 kilometres per hour.
[185] With respect to Mr. Mudryk's injuries, he said that when he spoke to a nurse at the Hamilton General Hospital the next day he was told that Mr. Mudryk had cracked ribs.
[186] In re-examination by the Crown he said that he was quite familiar with that stretch of road because he drives it often and he was certain of the 60 kilometre per hour limit in August 2011.
[187] At the conclusion of this witness, Ms. Mackenzie closed the Crown's case in response to the s. 8, 9, 10 and 10(b) Charter application by Mr. Mudryk.
She also closed the case for the Crown on the voluntariness/s. 7 Charter voir dire with respect to the utterances of Mr. Mudryk to P.C. Caron in the breath room.
The Crown also closed its case on the merits of each of the two counts pursuant to s. 253(1)(a) and 253(1)(b) on this blended Charter and trial proceeding.
[188] The Court then received submissions from both the Crown and defence on the s. 7 Charter and voluntariness components of the voir dire into the utterances made by Mr. Mudryk to P.C. Caron in the breath room.
I reserved my ruling to December 18, 2012, and on that day I gave an oral conclusory ruling with reasons to follow.
I found that I was satisfied beyond a reasonable doubt by the Crown that the statements made by Mr. Mudryk were voluntary and that he had not established on a balance of probabilities, as is his onus, that the questions contained in that interview constituted a breach of his s. 7 Charter rights.
[189] At the conclusion of my brief oral ruling, Mr. Ashurov elected to call a defence on the merits of the case.
He also agreed as requested by the Crown to have the Court apply all of the evidence on the voluntariness/s. 7 voir dire to the body of trial evidence and I did so.
[190] The first witness called by the defence was Roy Bhimsingh who testified in Chief that on August 11, 2011 he was the dump truck driver involved in the collision with the accused's van.
He testified in Chief that he was travelling at about 50 kilometres per hour when he reached the intersection.
He said that the van had turned left in front of him and, therefore, he collided with it.
[191] Mr. Ashurov presented his Highway Traffic Act record to him and he admitted it and it was entered as Exhibit 11A on this trial.
It contains eight previous speeding convictions.
In addition, he admitted to entering a plea of guilty to a charge of operating a commercial motor vehicle with a major defect on January 3, 2012 in Milton Provincial Offences Court.
He agreed that this charge arose out of the collision on August 11, 2011 when he struck the van.
[192] He said that, in his opinion, he would need 50 to 100 feet to stop his empty dump truck at 30 kilometres per hour and about 125 feet at 50 kilometres per hour.
[193] He admitted that his inside tire on one of his rear axles had begun to lose air after he left the dump on Appleby Line.
He was shown his police statement in order to refresh his memory and he agreed that he had told the officer that that tire had "a little bit of air" left in it.
[194] Mr. Bhimsingh said that he had been injured himself in the collision and he was in the process of suing Mr. Mudryk.
On consent, a statutory declaration that had been signed by him on June 12, 2012 was introduced as Exhibit Number 12.
[195] Mr. Ashurov also entered his updated Highway Traffic Act record as Exhibit Number 11B.
[196] In cross-examination by the Crown he was referred to paragraph five of his Exhibit Number 12 statutory declaration.
He explained that he believed that in that paragraph he had listed his injuries and other consequences that had affected him as a result of this collision.
He acknowledged that his truck's air braking system had been defective at the time, but he maintained that that did not affect his ability to stop the dump truck because the truck has five braking systems in total.
[197] He also stated he is a licenced truck mechanic and he does his own repairs.
[198] He also commented that the fact that he had low air pressure in one of the inside rear tires on his rear axle was no big impediment to the operation of the truck.
[199] He estimated that he was about 20 feet from the intersection when he noticed the van begin to turn left in front of him.
However, he then revised that answer to say that actually he was even into the intersection when he first saw the van begin its turn.
[200] He categorically disagreed that the speed of his truck was between 60 and 80 kilometres per hour at the time of reaching the intersection.
[201] The next witness called by Mr. Ashurov was the accused Maryan Mudryk and it was again confirmed just before the questioning began in Chief that his evidence on the voluntariness/s.7 voir dire would be applied to the trial.
Mr. Mudryk testified with the assistance of a Russian Interpreter.
[202] He testified in Chief that on August 11, 2011 he had arisen in the morning at 7:00 a.m., had breakfast and checked out his work schedule, noticing that his first client for whom he had to work for Bell Canada that day was scheduled for between 2:00 and 3:00 p.m. at a residence near Sutton Drive.
He also had other appointments scheduled for later in the day.
Therefore, he said that he did not leave home until 2:00 p.m.
[203] When he did so, he said that he drove directly to the LCBO store to buy some alcoholic beverages for consumption at home during the evening after he completed his scheduled work duties.
He said it was very usual for him to drink at home at the end of a hard day of work.
[204] He said that at this time he was still unemployed and he has been taking rehabilitation treatment for alcoholism at Wayside House in Hamilton.
The program was a residential program and it was completed on December 28, 2012 having commenced the program on October 29, 2012.
Mr. Ashurov introduced at that time as Exhibit Number 13, on consent, a copy of the Wayside House report dated November 6, 2012.
He said that before taking this program he used to drink every single day for about a year.
[205] Mr. Ashurov directed his mind to the events of August 11, 2011.
Mr. Mudryk said that he had consumed one bottle of beer between 9:00 and 10:00 a.m. in the morning at home and when he left his home and went to the LCBO store he had purchased two mickeys of vodka and the brand was Banff Ice.
He denied consuming any alcoholic beverage ever before he went to work and he never drove drunk, he said.
[206] He was asked to comment on the different brands of vodka and other beer cans that were found in the back of his Bell Canada van after the collision.
He said that he often drank from the bottle while sitting in his van after work.
I assume that he meant once he had driven the van home that he sometimes sat and drank in his van.
Therefore, he said, that is why the containers would be in the van at that time.
He said that it was quite common for him after work to consume an entire mickey of vodka and several beers as chasers.
It should be mentioned at this time that it is generally agreed that a mickey is a 12-ounce bottle or a 330-millilitre bottle of vodka.
[207] He was asked to comment upon events after the accident on August 11, 2011.
He said that he had consumed a full mickey and one-third of a second bottle of the same size immediately after the impact.
He was asked his body weight and he said it was 65 kilograms.
He was asked why he would have consumed that alcohol at that time after the accident.
He said that it seemed like a good way to relieve the stress that had been brought to bear upon him caused by having this terrible collision.
[208] At one point Mr. Ashurov asked the accused:
> Q. Why did you down this amount of alcohol after the accident, sir?
>
> Mr. Mudryk replied: Well, to me I guess it was the most acceptable or accessible way to cope with stress, to lose stress and pain, and pain, and that's something that helped me before.
>
> Q. Do you recall what you did with the bottles after you drank from them?
>
> A. I just basically tossed them away.
>
> Q. Do you recall where?
>
> A. As far as I – as far as I can remember, I kind of tossed them over my shoulder behind me.
[209] Mr. Ashurov asked him to comment on the interview with P.C. Caron between the two breath tests that P.C. Caron had testified about in his Alcohol Influence Report.
Mr. Mudryk said that he no longer had any recollection of telling P.C. Caron that he had been driving from the Guelph Line.
He also had no recollection of telling Caron that he had not been drinking after the collision.
[210] He was then asked to explain why he had decided to attend Wayside House for rehabilitation.
He said that he began to drink to an even greater degree after this collision and the charges that were facing him, so he therefore decided finally that he needed professional help.
[211] He confirmed that his driver's licence is under suspension by the Ministry of Transportation of Ontario (MTO) because he had begun to have involuntary convulsions sometimes after heavy drinking bouts and that is the reason that they suspended him.
[212] He explained that after he was treated at the hospital for his injuries arising out of this collision he had some seizures after taking some of the pain medications to which he, after the fact, realized he was apparently allergic.
[213] He also stated that he had been taken by ambulance to the hospital on occasion after he suffered convulsions from drinking even without ingesting the painkillers.
He explained that the painkillers had been cancelled by his medical personnel at the hospital once he began to have seizures, and these ambulance calls, of course, had to be reported to the Ministry.
[214] Finally, he was asked if he ever weighed as much as 80 kilograms and he denied ever having weighed that much.
First of all, he clarified that his height was a little over six feet in English terms.
[215] In cross-examination by the Crown He said that he had been picked up by ambulance from his home approximately eight times for seizures between August 11, 2011 and the summer of 2012, but never before the August 11 collision.
[216] With respect to the Alcohol Influence Report interview with P.C. Caron, he said that he recalled some of the questions and answers that he had engaged in with P.C. Caron, but not the particulars of them.
[217] He recalled providing his breath samples but not exactly when, and by that he seemed to clarify that he meant whether he gave them together or whether they were separated in time by some number of minutes.
Specifically, he said that he had no recollection of the question from the officer about whether or not he had been drinking that night.
He agreed with the Crown that the officer appeared to be writing his answers just as he had testified that he did.
[218] The following exchange took place in cross-examination of the accused:
> Question by the Crown: And so, sir, with respect to – do you recall then what you said to him when he asked you if you had been drinking since the accident?
>
> A. No, I don't remember.
>
> Q. You don't remember.
So if his notes say that when you said – when he asked you if you'd been drinking since the accident, his notes indicate that you answered no, you can't comment on that?
>
> A. I can only suppose that that's how I might have answered that question, but I don't remember the question itself and I'm not sure exactly how I answered it.
>
> THE COURT: Let me just catch that answer again.
Can you just repeat that for me so I can let that percolate?
>
> A. I suppose that based on these notes that he could – he could've asked me that kind of question and that's how I could've answered, but I don't remember that question per se and response – my response to it.
>
> THE COURT: Okay.
So, I think to understand the answer which is that – let me make see [sic] if I get this straight, sir.
You're saying to me today that given that the officer made notes of these questions and answers, you're at least prepared to say it's possible that he asked that question about whether you had been drinking after the accident, correct?
And it's possible that you may have answered to him, no, if he wrote it down, but you don't remember either that question or that answer, is that what I understand, correct?
>
> A. Yes, sir.
>
> THE COURT: All right, thank you.
[219] Mr. Mudryk also clarified that he was providing these answers to the Court because he realized that the officer had made notes to the effect of all these questions and answers.
[220] He said that he had heard in court from the officer that he had told the officer that he had been driving westbound on Dundas towards Sutton and that he had started driving at Guelph Line, but he could not really comment on the illogicality of those converse concepts because he did not really recall the question and answer.
[221] He agreed that he did recall being asked questions by Caron and that he had answered them and that this was all happening while the officer was preparing some kind of test.
But the accused only presumed that the officer had asked those questions and that he, the accused, had given those answers.
[222] Specifically, he said that he had no recollection of telling the officer that he had not consumed alcohol after the collision or that he was not ill or taking medications.
The accused had specifically stated"I don't remember the question, but I suppose that had this question been asked, that's how I would've responded because it – it's true that I was not ill and was not taking my medication".
[223] He said that having a beer at 9:00 a.m. at breakfast time was unusual for him because he usually begins his work in the morning.
However, on August 11, 2011 he said that he only began his calls at 2:00 p.m. or so.
He denied the Crown's suggestion that he had had this beer in the morning because he had no control over his desire for alcohol.
He maintained that he only had that one beer approximately four hours before beginning his work duties in the afternoon.
[224] With respect to the actual collision, he said that the people who had looked in on him after it happened were most likely worried that he was seriously hurt.
He most certainly agreed that some people in uniform arrived shortly afterwards, but he could not necessarily say it was within two or five or whatever number of minutes after the collision because he was not looking at his watch.
When the Crown suggested to him that he would not be taking any serious disagreement with the evidence of the civilian witnesses that emergency services were called right away after the collision and arrived quickly, Mr. Mudryk said that he would not be disagreeing with that evidence and agreed that in a situation like that he would not have expected anything else to be the case.
[225] The Crown then directly suggested to him that he would have had no opportunity to consume vodka without either the civilians or some of the emergency personnel seeing him do so.
Mr. Mudryk responded by saying he could not say what the witnesses would or would not have seen and that all he was saying was that he got the bottle and drank from it.
[226] He strongly disagreed with the Crown's suggestion that he would not have had an opportunity to consume the quantity of vodka that he has testified that he consumed after the collision without civilians who were standing around or EMS or police personnel being able to observe him doing that.
In other words, he testified that he had an adequate period of time with no one having any observation of him that he could see in order to be able to consume the alcohol he has testified he consumed before being investigated by the police.
[227] With respect to the causation of the collision, he said that he could not estimate the speed of the dump truck as it entered the intersection, but he thought that perhaps other witnesses from the sidelines could do that.
He categorically disagreed that he had begun to make his left-hand turn in front of the truck at a point where he left the truck no opportunity whatsoever to come to a stop without striking his vehicle.
He said he simply would not have done that.
He disagreed with the Crown's suggestion that he did turn in that fashion and that the reason he did so was because he was impaired by alcohol.
[228] He denied that he had consumed any additional alcohol that day before the collision other than the one beer at 9:00 a.m. even though he agreed with the Crown's suggestion that at that time he was basically a "functioning alcoholic".
The Crown further suggested that what he had done that day was to begin drinking in the morning and he continued to drink even while he was working and driving in his work van up to the point of the collision.
Mr. Mudryk responded by saying that he did not really do any work that day because he had told us that his first appointment was 2:00 p.m.
He repeated that he had consumed the one bottle of beer in the morning and that he did not drink until after the collision.
[229] Finally, the Crown suggested to him that as of August 11, 2011 he had a high tolerance for alcohol and, therefore, did not tend to show all of the usual indicia of impairment, as she put it in her question.
Mr. Mudryk answered that he really would not know and that would be a question better answered by people who are close to him who could observe him after drinking.
[230] The trial was remanded to January 30, 2013 for continuation and on that day Mr. Ashurov had a few questions in re-examination.
In re-examination Mr. Ashurov had the accused identify a couple of letters from the MTO which were filed as Exhibits.
The import of these letters was to the effect that Mr. Mudryk would have to be seizure free and abstain completely from alcohol for one full year before he could be considered for reinstatement of his licence.
These letters, which were dated October 23, 2011, October 29, 2011 and May 8, 2012, were all introduced as Exhibit 14A, 14B and 14C.
[231] Mr. Ashurov then introduced through Mr. Mudryk the Wayside House report, which became Exhibit Number 15, dated December 28, 2012 indicating that he had completed their residential alcohol program.
Mr. Mudryk testified that he had taken the program for health reasons and not just simply to be able to get his driver's licence back on an earlier basis.
[232] The next witness called by the defence was Brian Gallant who testified in Chief that he had been a motorist parked on Sutton Drive facing Dundas in a northerly direction at the time.
His traffic light was red, he said, and he saw the dump truck coming from the east and he also noticed the van facing westbound as it began to turn in front of the dump truck and he also observed the collision.
[233] He said that he estimated having seen the truck when it was about 200 feet west of the intersection and at that point the van was not yet moving.
He said the Dundas light was green for both the truck and the van.
For some reason he explained that he could not see the walk signal.
I presume that he meant for people from Sutton walking across Dundas, and that helped him to decide that the light was green for the traffic on Dundas.
[234] He said that he had given a statement to the police on August 11, 2011 and that his memory was most likely better at that time than now.
He was offered the opportunity of refreshing his memory from his statement by Mr. Ashurov and he agreed to take that opportunity.
After reviewing his statement he said that he now remembered that he did see the walk signal flashing for pedestrians on Dundas crossing the Sutton intersection.
He also said that when he looked back after seeing the walk signal flashing, the truck was about 70 feet away, although in his police statement he had said 225 feet.
He then clarified that he intended to stick with 225 feet, as he testified in court, as being the distance from the intersection that the truck was when he first saw it.
[235] He agreed that his police statement says that he saw the van turning out of the corner of his eye when the truck was about 225 feet away and he agreed with that portion of his police statement today.
[236] He said that when he first heard the truck braking the van was about half way through the intersection in its left-hand turn and the truck was about 70 feet away.
At the point of the actual collision, he said he was unaware of what colour the traffic light was for Dundas traffic.
[237] In cross-examination by the Crown he agreed that the van should obviously have been able to see the truck as it was approaching the intersection.
Then in re-examination he agreed that the converse should also have been true.
[238] The final witness called by the defence was Alla Mast who testified in Chief that she is the accused's wife.
She is 36 years of age and a Canadian citizen.
She has no criminal record.
She said that they have been married for 10 years as of the date of her testimony and they have daughters six and two years of age respectively.
She said that she works for a pharmacy.
[239] On August 11, 2011 she had been at work and then went to the hospital at 6:00 p.m. or so to see her husband, the accused.
She testified that she had actually attended the police pound where the accused's vehicle had been impounded after the collision.
She did so in order to look for his wallet and she found it wedged under the passenger seat.
[240] At the same time, she said that she found vodka bottles.
In the front passenger seat area she said there was one empty and one part full, and she specified a two-thirds full vodka bottle.
She said that they had blue caps and blue labels and she thought they were plastic bottles.
She described them as being mid-size of the range provided to her by Mr. Ashurov of 12 ounces, 26 ounces or 35 ounces.
She said that she then threw these bottles away.
[241] She said that she had never noticed any alcohol problem with her husband before the collision.
She agreed that he certainly drank after work to relieve stress and fatigue.
She said that he drank every night as far as she knew but she did not know how much he drank.
However he always seemed to be fine as he walked upstairs to bed.
Therefore, she was prepared to conclude that his consumption was moderate.
She said he certainly never drank alcohol before going to work.
She did say that his drinking became worse after the date of the collision.
[242] In cross-examination the Crown asked her if she would be surprised that her husband had testified that he had an alcohol problem even before the date of the collision.
She said that she would not be surprised because she herself did not make a big deal out of his drinking after work.
She explained that all Ukrainian men tend to drink like that.
She maintained that only after the collision did she notice that he seemed to have a problem.
[243] She said that she did not know that he sometimes drank in his van in the garage after work even though the Crown told her that he had testified that he did so.
[244] There was no re-examination and Mr. Ashurov closed the case for the defence on the merits.
Ms. Mackenzie indicated that she was not calling any reply evidence for the Crown.
Mr. Ashurov was prepared to make submissions immediately.
---
## Position of the Defence - The s. 8, 9 and 10(b) Charter Application
### Section 8 and 9
[245] Mr. Ashurov reminds the Court that P.C. Urie testified that he arrived at the collision scene at 2:50 p.m. and spoke to Mr. Mudryk.
The only observations that he had in his notes were that Mr. Mudryk had red glassy eyes, but the paramedic who testified said that Mr. Mudryk's eyes were tested by him and he noticed nothing abnormal.
Mr. Ashurov submits that P.C. Urie testified that he did not even detect an odour of alcohol at the time on Mr. Mudryk's breath, but the paramedic, Mr. Nykamp, did in the ambulance.
[246] Mr. Ashurov then listed what he felt to be the evidence given by P.C. Urie with respect to his subjective grounds for the formation of his RPG for his arrest of Mr. Mudryk.
They were, in order:
1.
The fact of the motor vehicle collision;
2.
Mr. Mudryk's red glassy eyes;
3.
The alcohol odour in the ambulance that he noticed on the breath of Mr. Mudryk.
However, Mr. Ashurov submits that that observation was made just after he had arrested him;
4.
Mudryk's admission of consumption of one beer in the early morning at home to the officer in the ambulance;
5.
The existence of the empty containers of alcoholic beverages that were observed in the van before Mr. Mudryk was extricated from it.
[247] Mr. Ashurov submitted that P.C. Urie agreed that the symptoms of glassy eyes and red eyes could also be consistent with the effect of the collision upon Mr. Mudryk.
As an example, he agreed that perhaps the fumes from the airbag deployment could have produced those symptoms.
[248] Mr. Ashurov submitted that the officer testified that he had been told that Mr. Mudryk had made an improper turn, but he could not recall many details of what he had been told by the civilian witnesses.
Mr. Ashurov reminded the Court that all of the civilian witnesses said that the collision had occurred on a yellow light for Dundas traffic.
[249] Mr. Ashurov referred the Court to P.C. Urie's evidence that he had years of experience investigating similar collisions.
He submits that P.C. Urie's evidence is weakened on that point by the fact that many of those previous investigations did not involve alcohol consumption by either of the drivers.
Mr. Ashurov refers the Court to the Ontario Court of Appeal decision of [R. v. Bush, 2010 ONCA 554](https://www.canlii.org/en/on/onca/doc/2010/2010onca554/2010onca554.html), 259 CCC (3d) 127, as an authority for that submission.
He submits that that fact detracts from the officer's stated RPG both subjectively and objectively on a judicial analysis.
[250] He submitted that the officer conceded that the empty alcohol beverage containers that were located in the van could have been empty for weeks and that there is no inference that the Court can draw from them that the accused had been drinking before the accident on August 11, 2011 in the van.
[251] Mr. Ashurov reminded the Court that P.C. Urie had conceded that Mr. Mudryk's admission of having consumed one beer at nine or ten o'clock in the morning on August 11th would cause the officer to believe that any alcohol from that beverage would be eliminated by the time of the collision.
[252] He submitted that there was no evidence from P.C. Urie of physical symptoms of impairment on the part of Mr. Mudryk and that the accused was responsive to the questions that were asked.
[253] He submits that after the admission of the one beer early in the morning was obtained from the accused in the ambulance and the odour of alcohol observed by P.C. Urie on the accused's breath in the ambulance, P.C. Urie should have and could have requested an approved screening device be brought to the scene to be used on the accused.
As an authority for that submission, Mr. Ashurov refers the Court to R. v. Dunn, a decision of Madam Justice Johnston of the Ontario Court of Justice in Lindsay, Ontario, cited as 171 C.R.R. (2d) 262, and also a decision of the Superior Court of Justice cited as R. v. Hopkin, a decision of Justice Sills cited as [2001] O.J. No. 3329.
[254] For all of these reasons, Mr. Ashurov argues that P.C. Urie's "constellation of factors" available to him at the time when he testified he had formed his RPG to arrest the accused on the charge pursuant to s. 253(1)(a) of the Criminal Code were non-existent from both a subjective and an objective analysis standpoint.
He, therefore, argues that Mr. Mudryk has been successful in establishing on the requisite balance of probabilities that his s. 8 and 9 Charter rights were breached by P.C. Urie when he arrested him.
### Section 10(b) of the Charter
[255] Mr. Ashurov submits that Mr. Mudryk's response "Not right now" in the ambulance when asked by P.C. Urie if he would like to speak to a lawyer after his rights to counsel were provided to him is clearly not an unequivocal waiver.
[256] At the hospital where P.C. Urie testified he received a waiver from Mr. Mudryk on his right to speak to a lawyer before the breath tests, Mr. Ashurov submits that the Court must consider the totality of the circumstances facing Mr. Mudryk at that time.
Mr. Ashurov reminds the Court that Mudryk testified that he had no memory of the rights to counsel being read to him.
The evidence supports the contention, argues Mr. Ashurov, that Mr. Mudryk was certainly intoxicated by that time and also in great pain in the emergency room when he was asked that question.
As partial support for that submission, he refers the Court to the exceedingly high BAC readings obtained by the two samples of breath from Mr. Mudryk.
[257] Mr. Ashurov also reminds the Court that there is evidence that there was an IV being used on Mr. Mudryk at the time, although he concedes that there is no evidence of the substance that was in it, although, I simply note, that there was a saline solution given to him by the paramedics back at the scene intravenously.
[258] Mr. Ashurov reminds the Court that Mr. Mudryk testified that he felt better after having an IV utilized at the hospital after the paramedic IV had been disconnected.
[259] For all of these reasons, Mr. Ashurov submits that Mr. Mudryk's seemingly categorical response of "no" to the question put to him about whether he would like to talk to a lawyer or not cannot and should not be considered to be an unequivocal waiver by the Court.
[260] Therefore, Mr. Ashurov submits that the Court should find on the required balance of probabilities that Mr. Mudryk's s. 10(b) Charter rights to counsel were breached by P.C. Urie at the scene, and also at the hospital, and therefore the Crown is not able to rely on an unequivocal waiver by Mr. Mudryk.
Therefore, his s. 8, 9 and 10(b) rights have been breached, argues Mr. Ashurov, and, as a result, pursuant to s. 24(2) of the Charter, even after an appropriate R. v. Grant analysis, all of his oral utterances to P.C. Caron in the breath room and his Intoxilyzer BAC readings should be excluded from the body of evidence on this trial.
[261] In elaboration of that argument, he emphasizes that the seriousness of the ss. 8 and 9 breach must be considered to be significant because without the arrest of Mr. Mudryk there could be no charge for him to face in court.
He also argues that the circumstances facing Mr. Mudryk at the time of having been seriously injured in the collision make these breaches even more serious.
In addition, he submits that the officer's evidence reveals that he violated Mr. Mudryk's Charter rights in a multiple of ways.
---
## The Merits of the Charges
### The Section 253(1)(a) Evidence
[262] Mr. Ashurov submits that there is no evidence of bad driving or deviant driving on the part of Mr. Mudryk.
He commends all of the evidence of the civilian witnesses to the Court's attention which, he argues, establishes that Mr. Mudryk was making his left-hand turn on a yellow light and that the dump truck was driving at a faster than appropriate rate of speed towards the intersection and did not attempt to brake when the opportunity presented itself in order to avoid the collision.
In addition, he submits that the major defect in the braking system of the dump truck ought to be considered by the Court as having made a contribution to the collision.
[263] He argues that the evidence of the dump truck driver that his light was green as he approached the intersection conflicts with all of the other witnesses who said that the light was yellow and that the truck ran the yellow light.
[264] With respect to the credibility of the driver of the dump truck on that point, Mr. Ashurov refers the Court to his eight previous speeding convictions admitted in his Highway Traffic Act record.
[265] With respect to Mudryk's evidence itself, he testified that he began his turn on the yellow light with proper distance between him and the approaching dump truck and that this evidence was supported by the civilian witnesses.
### The Section 253(1)(b) Count
#### Alcohol Consumption of Mr. Mudryk
[266] Mr. Ashurov submitted that the Court should conclude that Mr. Mudryk was an admitted and proven functioning alcoholic as of August 11, 2011 and that he often drank large quantities of alcohol.
[267] He submitted that it would be unlikely that the accused would engage in the climbing of roofs to install Bell satellite dishes with a reading of 291 milligrams of alcohol in his blood.
This, of course, was a reference to the CFS Toxicology Report about his BAC extrapolated back to the time of the collision.
[268] Mr. Ashurov argues that the Court should consider the evidence of Mr. Pejakovic that he had given a bottle of water to Mudryk after the collision in the context of the fact that it was possible that he was worried after P.C. Urie had told his wife in February 2012 that Mudryk was telling people that somebody had given him an alcoholic beverage after the motor vehicle accident.
Therefore, it would be possible he wanted to believe that he had given water to Mudryk from his own supply in his own van so that he would not be suspected of having supplied an alcoholic beverage to Mudryk.
Mr. Ashurov submitted that the evidence of P.C. Urie would reveal that he asked leading questions of Mr. Pejakovic on the subject on February 26, 2012.
Of course, I note at this juncture that the accused himself in cross-examination on the voir dire admitted recalling that Mr. Pejakovic had indeed given him a bottle of water but pointed out that it was a different brand than the one depicted in the exhibit photo from his vehicle.
I must also note that this answer, in my view, reveals an ability on the part of the accused to recall some minute details of post collision events.
The voir dire evidence is now part of the body of trial evidence.
[269] Mr. Ashurov referred the Court to the evidence of Ms. Machry that she saw Mr. Mudryk drinking from a plastic water bottle and reminds the Court that she admitted that this did not occur to her until P.C. Urie had asked her for a second statement in February 2012.
However, Mr. Ashurov did ask the Court to consider that perhaps her evidence supports Mr. Mudryk's evidence that he had been drinking after the collision from his plastic bottle of vodka.
[270] It seems to the Court that Mr. Ashurov is, on the one hand, asking the Court to be circumspect about the accuracy and reliability of her evidence that Mr. Mudryk was drinking from any kind of container because of the fact that it had not occurred to her until February 2012 when P.C. Urie specifically asked her about it, and at the same time is asking the Court to find that if the Court wishes to find that evidence to be credible and reliable, then it would support the accused's evidence that he was drinking from this plastic bottle of vodka.
[271] Mr. Ashurov submitted that it is very important to remember that all witnesses, including P.C. Urie, do not detect any alcohol odour on the breath of the accused until Mr. Nykamp, the EMS person, happens to do so seven or eight minutes later in the ambulance.
Therefore, Mr. Ashurov submits that this should be considered to be corroborative of Mr. Mudryk's evidence that he only drank alcohol beverages, namely the vodka, after the collision.
[272] He submits that the answers of Mr. Mudryk to P.C. Caron were nonsensical at times and, of course, his best example, he feels, is the answer given by Mudryk that he was coming from Guelph Line which would have him driving eastbound whereas, in fact, he was driving westbound on Dundas.
Therefore, Mr. Ashurov argues that the Court can consider these answers to be evidence of significant impairment by alcohol at the time when he is answering those questions.
### The Bolus Drinking Issue
[273] Mr. Ashurov submits that the onus is always on the Crown in a case where a toxicology report or evidence is being relied upon by the Crown to establish the BAC of the accused at the time of the alleged offence to disprove the presence of bolus drinking on the part of the accused.
On the evidence of Mr. Mudryk's case, Mr. Ashurov specifically argues that the Crown must disprove the evidentiary suggestion that Mr. Mudryk consumed the large quantities of vodka that he has testified he consumed within the first few brief minutes after the collision involving his van and the dump truck.
[274] Both Mr. Ashurov and Ms. Mackenzie agree that the principles enunciated by the Ontario Court of Appeal in [R. v. Paszczenko; R. v. Lima cited as 2010 ONCA 615](https://www.canlii.org/en/on/onca/doc/2010/2010onca615/2010onca615.html), [2010] O.J. No. 3974, have application to this issue.
Mr. Justice Blair, speaking for the Court, stated at paragraph 21:
> There can be no dispute that the onus is on the Crown to prove the facts underlying the expert's report, including the assumptions upon which the expert relies.
As Sopinka J. noted in [R. v. Lavallee](https://www.canlii.org/en/scc/doc/1990/1990canlii95/1990canlii95.html), [1990] 1 S.C.R. 852, at p. 898: "before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist." See also, [R. v. Grosse (1996)](https://www.canlii.org/en/on/onca/doc/1996/1996canlii6643/1996canlii6643.html), 29 O.R. (3d) 785 at p. 790 (C.A.), leave to appeal refused, [1996] S.C.C.A. No. 465.
As noted above, however, the issue here is not whether the Crown must prove the assumptions, but how it is required to do so.
[275] At paragraph 27 Mr. Justice Blair gives a definition to the term "bolus drinking":
> "Bolus drinking" is generally meant to describe the consumption of large quantities of alcohol immediately or shortly before driving: see Grosse, at p. 788; [R. v. Hall (2007), 2007 ONCA 8](https://www.canlii.org/en/on/onca/doc/2007/2007onca8/2007onca8.html), 83 O.R. (3d) 641 (C.A.), at para. 14.
See also Phillips at pp. 158-162, for a description of the "relatively rare" phenomenon, although not by the "no bolus drinking" name.
[276] The only thing that I would add is that in this case the bolus drinking evidence is that the accused consumed his large quantities of vodka within minutes after the collision as opposed to immediately or shortly before beginning to drive his vehicle.
In my view, that distinction makes no difference with respect to the onus of the Crown in its attempt to rely upon the evidence of Dr. Mayers, the CFS toxicologist, in order to attempt to establish the accused's BAC at the time of the collision, which is the main factual issue in this case.
[277] Both Mr. Ashurov and Ms. Mackenzie also, of course, refer the Court to the principles established by the Supreme Court of Canada in [R. v. Lavallee](https://www.canlii.org/en/scc/doc/1990/1990canlii95/1990canlii95.html), [1990] 1 S.C.R. 852 and the Ontario Court of Appeal decision of [R. v. Grosse (1996)](https://www.canlii.org/en/on/onca/doc/1996/1996canlii6643/1996canlii6643.html), 29 O.R. (3d) 785.
[278] I will set out some of the paragraphs from Lima, supra, in which Mr. Ashurov and also the Crown rely in part for their own respective arguments on this issue.
By doing so, I will obviate the necessity of my setting out the same paragraphs in my analysis because I obviously will also rely upon their rationale.
> 28 In establishing that an accused has not engaged in bolus drinking, the Crown is in the unenviable position of having to prove a negative.
But how does it meet that onus in circumstances where - as is likely in many cases - it has no statement or evidence from the accused as to his or her drinking pattern at the relevant time and no other witnesses or evidence to shed any light on that issue?
That is the dilemma posed, principally, by the Lima appeal.
>
> 29 At one level, the answer is straightforward: the toxicologist's report is premised - amongst other things - on there being no bolus drinking.
In the absence of something on the record to suggest the contrary, on what basis could a trier of fact conclude there was bolus drinking?
This Court has answered the question posed by concluding that triers of fact may resort to a common sense inference in such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving: see Grosse, Hall, and R. v. Bulman, 2007 ONCA 169.
As noted above, bolus drinking has been said to be a "relatively rare" phenomenon: Phillips, at pp. 158-162. "No bolus drinking" is therefore largely a matter of common knowledge and common sense about how people behave.
>
> 30 In Grosse, at p. 792, the Court said:
>
> The trial judge was also entitled to consider that it was inherently unlikely that the respondent, in the space of less than 30 minutes, before embarking on his trip home to Brampton would consume the equivalent of nine ounces of alcohol.
This was not a matter of taking judicial notice of drinking patterns but merely applying common sense as to how ordinary people behave. [Emphasis added.]
>
> 31 And in Bulman and Hall, respectively, Justices Gillese and LaForme observed:
>
> Bulman, para. 13:
>
> The jury was aware that [the toxicologist's] expert testimony was dependent on an underlying assumption that had to be proven by the Crown - namely, that the appellant had not consumed a large quantity of alcohol shortly before driving ("bolus drinking").
Whether [the expert's] underlying assumption was proven was a question of fact for the jury to decide.
In making this finding, the jurors were entitled to rely upon their common sense, and to draw inferences about how normal people behave.
A reasonable inference is that normal people do not consume large quantities of alcohol shortly before, or while, driving.
>
> Hall, para. 20:
>
> There can be no doubt that the trial judge rejected his evidence on this issue entirely [i.e., the evidence of a defence witness to the effect that the accused had consumed half a glass of beer quickly just before leaving a restaurant].
Having done so, 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 therefore entitled to rely.
>
> 32 I would frame the rationale for this approach as the imposition of a practical evidentiary burden on the accused, not to persuade or convince the trier of fact that there was bolus drinking involved, but 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.
The imposition of a practical evidentiary burden to come forward with evidence is simply another way of explaining the invitation to draw a common sense inference which puts the accused in essentially the same spot if he or she cannot point to some evidence to overcome either hurdle.
>
> 33 Grosse was also a case involving proof of the bolus drinking assumption underlying a toxicologist's "over 80" opinion.
In rejecting a Crown argument resting on the difficulty of proving a negative and urging that there should be an onus on the accused to show the consumption of large quantities of alcohol just prior to the incident - particularly since this information is private to the accused - the Court said at p. 790:
>
> [Counsel for the Crown] argued that the amount of alcohol consumed is a matter peculiarly within the knowledge of the accused and it is fair that the accused have the burden of proof of this issue.
We assume that [he] is suggesting that there be only an evidentiary burden on the accused, not a persuasive burden.
>
> In our view this argument must also be rejected.
In effect [the Crown] would have us create a common law presumption, in a case such as this, that in the absence of evidence to the contrary an accused against whom expert evidence of blood-alcohol level is tendered is deemed not to have consumed large quantities of alcohol immediately before providing a breath sample.
There is no basis for creating such an extraordinary presumption.
Parliament has by statute created a presumption to assist the Crown in proof of the blood-alcohol level at the time of the alleged offence.
That presumption, however, is based on proof of a number of facts including proof that the tests were taken within two hours of the alleged offence.
>
> It would not be appropriate for the courts to broaden the scope of the statutory presumption when the carefully created conditions in s. 258 cannot be met.
Where the Crown cannot rely upon the presumption in s. 258(1)(c) it must prove its case in the ordinary way. [Emphasis added.]
>
> 34 The common law presumption advocated by the Crown and rejected by the Court in Grosse, is not the same as the practical evidentiary burden to come forward with some evidence that arises through the application of the common sense inference described above.
In Grosse, the Court spoke of the accused having the burden of proof on the issue and of the potential creation of a presumption of law that would deem no bolus drinking to be proven in the absence of evidence to the contrary.
This is the language of persuasion.
Here, the effect of the evidentiary shift is not to require the accused to convince the trier of fact of anything, but simply to be able to point to some evidence on the basis of which it can be said the issue of bolus drinking is alive on the record.
>
> 35 Chief Justice Dickson distinguished between a persuasive burden (which, constitutionally, cannot be shifted to the accused) and an evidentiary burden (which in some circumstances may be) in [R. v. Schwartz](https://www.canlii.org/en/scc/doc/1988/1988canlii11/1988canlii11.html), [1988] 2 S.C.R. 443.
He pointed out that the former requires proof of the existence of a certain set of facts whereas the latter does not require the party with the evidential burden to convince the trier of anything.
At p. 466, he said:
>
> Judges and academics have used a variety of terms to try to capture the distinction between the two types of burdens. ...
I prefer to use the terms "persuasive burden" to refer to the requirement of proving a case or disproving defences, and "evidential burden" to mean the requirement of putting an issue into play by reference to evidence before the court.
The party who [page 467] has the persuasive burden is required to persuade the trier of fact, to convince the trier of fact that a certain set of facts existed.
Failure to persuade means that the party loses.
The party with an evidential burden is not required to convince the trier of fact of anything, only to point out evidence which suggests that certain facts existed.
The phrase "onus of proof" should be restricted to the persuasive burden, since an issue can be put into play without being proven. [Emphasis added.]
>
> 36 See also, Colvin, E. and Anand, S., Principles of Criminal Law, 3rd ed. (Toronto: Thomson Carswell, 2007) at pp. 79-85.
>
> 37 For the reasons explained above, applying the common sense inference where there is no evidence of bolus drinking in circumstances where the Crown is required to prove the negative (i.e., no bolus drinking) is simply an example of the Schwartz notion of an evidential burden, in my view.
It does not involve attaching an onus of proof to the accused or the creation of a presumption or deeming provision in the sense forbidden in Grosse.
On that basis, it would be more straightforward, it seems to me, to refer to this evidentiary exercise as a shift in the practical evidentiary burden on the basis of which - absent something to put bolus drinking in play - an inference may (but not must) be drawn.
>
> 38 As noted above, the Court in Grosse resolved the issue before it by resorting to the common sense inference that normal people do not ingest large amounts of alcohol shortly before getting into their car and driving.
This Court has adopted that same technique in Hall and Bulman.
That common sense inference was available to the trial judge and the SCAJ in Mr. Lima's case, and particularly so in view of the following factors:
>
> a) Mr. Lima was stopped while driving his vehicle in an unusual fashion;
>
> b) He exhibited signs of driving while intoxicated at the time (smell of alcohol on his breath; red, bloodshot and glassy eyes; flushed face);
>
> c) The trial judge found by inference from the arresting officer's evidence that there was no alcohol in Mr. Lima's car, and that he had no access to alcohol from the time of his arrest to the time of the breathalyzer tests;
>
> d) There was no evidence that Mr. Lima had just come from an establishment serving alcoholic beverages; and
>
> e) The trial judge found that there was no change in the indicia of alcohol consumption during the period between his arrest and the administration of the breathalyzer tests, thus rejecting the defence argument that increased signs of intoxication were evidence of bolus drinking.
>
> 39 The fact that Mr. Lima was exhibiting signs of intoxication while driving and immediately after exiting the vehicle, while not conclusive, provides some circumstantial evidence of the absence of bolus drinking, in my view.
The effect of bolus drinking is to create a situation where the accused driver's BAC may have been below 80 milligrams of alcohol in 100 millilitres of blood at the time of the incident, yet still register "over 80" in a read-back calculation done later because it was still rising at the time of the incident.
If the BAC were less than 80 at the time of the incident, one would not expect to see such indicia of intoxication.
This is circumstantial evidence tending to support the view that there was no bolus drinking in the circumstances.
>
> 40 Given these facts, together with the application of the common sense inference, the trial judge was entitled to conclude, as she did, that the Crown had proved the facts underlying the toxicologist's "no bolus drinking" assumption.
The SCAJ correctly upheld the finding.
[279] Mr. Ashurov also referred the Court to a decision of Madam Justice Roberts of the Ontario Court of Justice cited as [R. v. Poel, [2012] O.J. No. 4146](https://www.canlii.org/en/on/oncj/doc/2012/2012canlii67819/2012canlii67819.html).
In that decision Madam Justice Roberts applied the rationale of R. v. Lima, supra, and its references to R. v. Grosse, supra, and R. v. Lavallee, supra.
On the facts of the Poel case she believed the accused when he testified that he had consumed some 24 ounces of vodka while waiting in his motor vehicle as it warmed up before he began to drive from his place of work.
After consuming the vodka and driving for a few minutes, he struck the rear end of a vehicle in front of him.
Madam Justice Roberts' conclusions are found in paragraphs 41 and 42 of that judgment:
> 41 The evidence that this Court received with respect to the state of mind of the defendant after he left his place of work and his state of mind before, it's clear that he - when he purchased the 40 ouncer [sic] that he intended to drink that evening.
There is no evidence to indicate that he drank while at work and although it is not usual for someone to consume about 24 ounces of vodka in a space of three to five minutes, it is not unheard of.
>
> 42 The evidence of the defendant raised the issue clearly of bolus drinking, and I find that the Crown has not negated that premise.
In fact, I find that the bolus drinking did take place.
[280] Mr. Ashurov refers the Court to the evidence in Mr. Mudryk's case that one empty and one part full bottle of vodka were located in the rear of the van in conjunction with Mr. Mudryk's evidence that after consuming the vodka immediately following the collision he believes that he just tossed both the empty bottle and the part full bottle over his shoulder which would place them in the rear of the van as the police arrived.
[281] With respect to the objectively realistic credibility of Mr. Mudryk's evidence that he could indeed consume some 20 ounces or so of vodka in the very short period of time of perhaps three to five minutes, based on the evidence, after the collision and before the arrival of P.C. Urie at the scene, Mr. Ashurov refers the Court to the evidence, both of Mr. Mudryk himself and also of the exhibits that were filed with respect to his alcoholism at the time.
He submits that the Court should conclude that it would not be difficult for Mr. Mudryk to have consumed such a quantity in such a short period of time given the fact that he was, in effect, a functioning alcoholic.
[282] Dealing with P.C. Caron's evidence of the discussion between him and Mr. Mudryk in the breath room which this Court earlier ruled was voluntary, Mr. Ashurov submits that his evidence that Mr. Mudryk told him about his drinking pattern and quantities of both beer and vodka consumed during the previous evening ending at about 2:00 a.m., as opposed to Mr. Mudryk's evidence at trial of his significant consumption after the collision, must be assessed in the context of Mr. Mudryk's evidence that he had no recollection whatsoever of telling P.C. Caron this story.
[283] Mr. Ashurov submits that the logical inference by the Court for his inability to recall saying those words was because of his impairment by the vodka he had consumed after the collision which, by that point in time, much later with P.C. Caron, had taken hold of him.
In other words, Mr. Ashurov submits that the Court should not rely for the truth of its contents upon those words attributed to Mr. Mudryk by P.C. Caron under those circumstances.
[284] In conclusion, Mr. Ashurov submits that the totality of the evidence should leave the Court in the position of concluding that the Crown has not disproven the evidence of bolus drinking after the collision which Mr. Mudryk has testified occurred.
Thus, he argues that the Court should not be able to rely upon the evidence of Dr. Mayers to establish Mr. Mudryk's BAC at the time of the collision and, therefore, the s. 253(1)(b) charge would not be proven beyond a reasonable doubt by the Crown.
### The 253(1)(a) Charge
[285] Mr. Ashurov submits that the only evidence available to the Court upon which the Crown can rely to prove that Mr. Mudryk's ability to operate his motor vehicle was impaired by alcohol at the time of the collision is the scientific evidence from Dr. Mayer.
By that, he means the conclusion of Dr. Mayer that every person's ability to operate a motor vehicle is impaired by alcohol at the particular BAC levels which he set out in his report, which, of course, would easily include the levels produced by Mr. Mudryk in his breath tests.
However, obviously if those breath tests are tainted by the evidence which Mr. Ashurov urges the Court to accept of the bolus drinking by Mr. Mudryk after the collision, then he submits that the Court has insufficient evidence upon which to rely to conclude beyond a reasonable doubt that Mr. Mudryk's ability to operate his motor vehicle at the time of the collision was impaired by alcohol.
[286] In particular, he submits that the mere fact that Mr. Mudryk made a left-hand turn on a yellow light in the face of the approaching dump truck with what objectively should be concluded was a sufficient distance between the two vehicles is not evidence that the Court can consider on the issue of impairment.
[287] Furthermore, he submits that the evidence of P.C. Urie of the red glassy eyes was conceded even by P.C. Urie to be equivocal evidence with respect to the issue of impairment, especially given the circumstances of the very serious impact that had just been suffered by Mr. Mudryk and his injuries therefrom.
[288] In conclusion, Mr. Ashurov submits that there is simply insufficient evidence, even on the low threshold of [R. v. Stellato](https://www.canlii.org/en/scc/doc/1994/1994canlii94/1994canlii94.html), [1994] 2 S.C.R. 478, to find Mr. Mudryk guilty beyond a reasonable doubt of the s. 253(1)(a) count once Dr. Mayer's opinions are discounted by the bolus drinking of the accused post collision.
[289] At the conclusion of Mr. Ashurov's submissions, because of the hour of the day, Ms. Mackenzie requested a remand in order to present the Crown's submissions.
She informed the Court that she intended to present them orally and estimated approximately two hours for her submissions.
This estimate actually also included an estimate for the potential reply submissions of Mr. Ashurov.
The trial was then remanded to April 3, 2013 for that purpose.
---
## Position of the Crown
### The Section 8 and 9 Charter Application
[290] Ms. Mackenzie submits that P.C. Urie's evidence should be considered as being very good, if not excellent, by the Court in the sense that he provided more than sufficient RPG for his opinion that he could arrest Mr. Mudryk on the s. 253(1)(a) count.
She argues that he was in possession of knowledge that subjectively would allow him to conclude that Mudryk had made an unsafe turn in front of the dump truck and also he had the admission from Mudryk of having consumed one beer at some point before the collision.
He also had the odour of alcohol on Mudryk's breath.
Under these circumstances, Ms. Mackenzie submits that P.C. Urie's RPG opinion would meet both the subjective and objective tests required and she relies upon the decision of Mr. Justice Hill in the Ontario Superior Court of Justice in [R. v. Censoni, [2001] O.J. No. 5189](https://www.canlii.org/en/on/onsc/doc/2001/2001canlii24627/2001canlii24627.html).
[291] Ms. Mackenzie submits that Mr. Ashurov's submissions on the s. 8 argument were exactly what Mr. Justice Hill discussed and disapproved of in R. v. Censoni, supra.
She also refers the Court to [R. v. Rhyason, [2006] S.C.C.A. No. 483](https://www.canlii.org/en/scc/doc/2006/2006canlii67819/2006canlii67819.html) and [R. v. Arrigo, [2009] O.J. No. 5520](https://www.canlii.org/en/on/onsc/doc/2009/2009canlii67819/2009canlii67819.html).
### The Section 10(b) Charter Application
[292] Ms. Mackenzie submits that Mr. Mudryk's evidence was that he did not recall the rights to counsel being given to him by P.C. Urie, and not that he did not comprehend them.
She argues that two officers said that they provided the rights to counsel to him and that he understood them.
She submits that this was especially so with the evidence of P.C. Urie.
[293] Ms. Mackenzie argues that although Mr. Mudryk testified that he was drunk and that must have contributed to his inability to comprehend, he is nevertheless concocting this position in order to try to convince the Court that he cannot recall giving a clear, unequivocal waiver of the exercising of his right to counsel to the officers.
### The Merits
### The Section 253(1)(b) Count
[294] Ms. Mackenzie argues that the only issue on this count is the bolus drinking after the collision argument if the Court dismisses the ss. 8, 9 and 10(b) Charter motions.
Ms. Mackenzie reminds the Court that the onus is on the accused on a balance of probabilities on those motions.
### The Section 253(a) Count
[295] Ms. Mackenzie submits that the Crown witnesses were unbiased and generally consistent in the delivery of their evidence.
She asks the Court to find that the dump truck was speeding eastbound down the hill on Dundas and was obviously not intending to stop for the yellow light.
She argues that this should have been obvious to Mr. Mudryk as well.
Therefore, she argues that the decision of the accused to make his left-hand turn in front of the approaching speeding dump truck should be considered by the Court as some evidence of his impairment by alcohol.
Also of importance is the fact that he proceeded slowly across the path of the dump truck instead of appearing to realize that if he was going to make the turn at that time, he should make it quickly.
[296] Ms. Mackenzie also argues that the evidence of Mr. Pejakovic should allow the Court to find that there was no realistic opportunity for Mudryk to have consumed alcohol after the collision had occurred.
[297] With respect to the evidence of P.C. Urie, Ms. Mackenzie submits that the Court could find and perhaps should find that the odour that was left behind by the exploding airbag in the vehicle could well account for why he was unable to smell alcohol on Mudryk's breath on the first occasion when he approached him at the vehicle, as opposed to concluding that that was corroborative of Mr. Mudryk's evidence that he had only consumed alcohol after the collision.
[298] Ms. Mackenzie then referred the Court to the evidence of the CFS witness, Darryl Mayers.
[299] Ms. Mackenzie then made submissions with respect to the evidence of Mr. Mudryk himself.
She argued that on both the voir dire and also on the trial evidence he gave the same ridiculous story when he claimed that he did not know that he was charged with these offences until he was released from the police station.
She simply argues that that position by Mudryk is not tenable on the totality of the evidence.
[300] Ms. Mackenzie was very circumspect about Mr. Mudryk's evidence that he was able to recall precisely what he had consumed by way of alcoholic beverages and exactly how much after the accident and yet he could not recall many other details of this case.
[301] She argues that the evidence should make it clear that he understood the instructions to provide samples of his breath, which he, in fact, did do for the Intoxilyzer operator.
[302] As a very important point, the Crown refers the Court to the evidence of P.C. Caron that Mudryk told him during the question and answer session between the first and second breath tests that he had not been drinking since the motor vehicle collision.
[303] With respect to Mr. Mudryk's wife's testimony that she had been mostly unaware of the extent of her husband's drinking during an extensive period of time before the collision was ridiculous given that he has testified that he is an admitted alcoholic and has been for some time.
[304] The Crown submits that the necessary level of impairment to substantiate a charge contrary to s. 253(1)(a) has been amply established, especially by Dr. Mayer's evidence, assuming that the Court rejects the bolus drinking defence.
### The Bolus Drinking Issue
[305] The Crown argues that the Court should be able to reject Mudryk's testimony of the bolus drinking of the vodka from the vodka bottles after the collision from the totality of the evidence of P.C. Urie and the civilian witnesses with respect to the lack of a realistic opportunity for him to have done so.
In addition, she refers the Court to the Ontario Court of Appeal decision of [R. v. Bulman, [2007] ONCA 169](https://www.canlii.org/en/on/onca/doc/2007/2007onca169/2007onca169.html).
At paragraph 13, Gillese, J.A. states:
> The jury was aware that Mr. Wigmore's expert testimony was dependent on an underlying assumption that had to be proven by the Crown – namely, that the appellant had not consumed a large quantity of alcohol shortly before driving ("bolus drinking").
Whether Mr. Wigmore's underlying assumption was proven was a question of fact for the jury to decide.
In making this finding, the jurors were entitled to rely upon their common sense, and to draw inferences about how normal people behave.
A reasonable inference is that normal people do not consume large quantities of alcohol shortly before, or while, driving.
[306] In short, the Crown argues that the bolus drinking assertion by Mr. Mudryk should be totally rejected by the Court and, if so, then both offences charged are proven beyond a reasonable doubt.
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## Defence Reply
[307] Mr. Ashurov asked the Court to consider whether or not P.C. Urie had tailored some of his evidence to fit nicely with the case for the Crown.
In effect, he asked the Court to consider whether or not P.C. Urie had perjured himself in his testimony.
In support of this submission, he refers the Court to some areas of the officer's evidence where he was giving some evidence that was not in his original notes with respect to his investigation.
In other words, his evidence seemed to be expanded for trial purposes.
[308] Mr. Ashurov also reminded the Court that P.C. Urie had agreed that whether or not the turn that was executed by Mr. Mudryk before the collision was proper or improper would be an ambivalent factor with respect to a symptom of impairment by alcohol.
[309] With respect to the RPG of P.C. Urie for his arrest, Mr. Ashurov argued that the officer should have known that the one beer consumption admitted by Mudryk at some much earlier point in the day such a breakfast would obviously have been eliminated from his system by the time of the officer's investigation of the collision.
Therefore, he questions the subject of sufficiency of the officer's opinion that he had sufficient indicia of impairment to make his arrest.
[310] Referring the Court to the s. 10(b) Charter issue, Mr. Ashurov again argued that the Court should conclude that there was no clear waiver by Mr. Mudryk in the ambulance when his response to the question of whether or not he would like to speak to a lawyer was "Not right now".
He argues that the only words that could constitute a clear unequivocable waiver objectively speaking were those spoken by Mr. Mudryk in the hospital and at that point he was, in the submission of Mr. Ashurov, heavily impaired by alcohol and under the effects of some unknown form of medication.
[311] With respect to the s. 253(1)(a) count, Mr. Ashurov argues that the only evidence in this case that is even capable of being considered as a symptom of impairment by alcohol was the manner in which Mr. Mudryk executed his left-hand turn before the collision.
Once again, he reminds the Court that P.C. Urie agreed that that act could be considered to be equivocal with respect to symptoms of impairment.
Therefore, Mr. Ashurov argues that the Crown has not even managed to reach the standard required for proof of a s. 253(1)(a) count on the low threshold of [R. v. Stellato](https://www.canlii.org/en/scc/doc/1994/1994canlii94/1994canlii94.html), [1994] 2 S.C.R. 478.
[312] Mr. Ashurov referred the Court to the evidence of Ms. Hassel and reminded the Court that she was the only one to testify that she saw Mr. Mudryk begin to make his turn when the light for him was already red, although there was one other witness who had thought that it might have been red.
The remainder of the evidence and, Mr. Ashurov submits, the bulk of the evidence would suggest that he began to make his turn when his light was still yellow.
[313] On the bolus drinking argument, Mr. Ashurov submits that while the courts may have made comments to the effect that normal people do not engage in bolus drinking, especially after an accident, the Court should remember that Mr. Mudryk is not to be considered as a normal person with respect to alcohol consumption.
He submits that it has been well established in this case that Mr. Mudryk was and is an alcoholic.
He refers the Court to the documentary exhibit of treatment for alcohol abuse as corroboration for that statement.
He refers the Court to the Ontario Court of Appeal decision of [R. v. Lima [supra]](https://www.canlii.org/en/on/onca/doc/2010/2010onca615/2010onca615.html).
[314] Finally, with respect to the issue of whether or not a motor vehicle accident or collision is explained or unexplained, he submitted that the Crown was simply wrong to submit that this particular collision was unexplained except by some sort of faulty driving by the accused.
He refers the Court to the dump truck driver's evidence when he admitted that he had been charged with having faulty brakes at the time on his truck and he also asks the Court to find that the evidence clearly supports the submission that Mr. Bimsingh, the dump truck driver, was speeding.
The dump truck driver had also testified that the light for him was green even as he entered the intersection, but no other witness agreed with that testimony.
Therefore, Mr. Ashurov submits that the Court should be able to conclude that the collision of the two vehicles was really caused by the driving pattern of the dump truck combined with its faulty brakes which would have rendered it less capable of stopping in time to avoid the collision even if the driver had tried to do so in time.
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# Analysis
## The S. 8,9 Charter Breach Argument
[315] I respectfully disagree with Mr. Ashurov's submission that an analysis of the totality of the evidence of P.C. Urie, considered in the context of the circumstances which were available to him, should cause the Court to conclude that he had no factors, or at least, insufficient factors, to either subjectively or objectively justify his belief that he possessed the reasonable grounds to arrest Mr. Mudryk on the charge of operating his motor vehicle while his ability to do so was impaired by alcohol.
[316] I specifically disagree with Mr. Ashurov that I should find that P.C. Urie perjured himself by providing testimony about some of his observations and recollections that he had not recorded in his original notes.
At best, I would agree that such a failure to do so should always raise a certain level of circumspection about the evidence thereby proffered, but when some of it, as I find was the case here, is corroborated by other witnesses that level of circumspection is rendered minimal.
[317] I also find that there was no need for P.C. Urie to resort to the ASD before forming his opinion that he had the RPG to arrest the accused on the s. 253[1][a] charge, given the constellation of factors which were available to him.
On that issue I thus agree with the Crown's argument as above summarized and disagree with Mr. Ashurov.
In arriving at my conclusion I have applied the principles stated in R.v.Censoni [supra].
I also note that Justice Sills in R .v.Hopkin [supra], an S.C.J. trial decision relied upon by Mr. Ashurov, stated at par. 14 that the only evidence available to the arresting officer that an offence involving alcohol had been committed was "the obvious odour of alcohol on his breath" and the fact of a fatal collision in which the accused had been the driver and had been seriously injured.
In addition the officer had testified that the accused had been incapable of understanding the demand or his Charter rights to counsel.
I find that scenario to be significantly distinguishable from the factors which P.C. Urie had available to him.
[318] For these reasons I find that Mr. Mudryk's s. 8 or 9 Charter rights were not infringed by P.C. Urie's arrest of him.
## The S. 10(b) Charter Issue
[319] I agree with Mr. Ashurov that there was no unequivocal waiver by the accused of his s. 10 [b] rights in the ambulance when he responded "not right now." However, I disagree with his submission that the accused's categorical words when he declined the opportunity at the hospital to speak to a lawyer to P.C.Caron did not constitute a clear, unequivocal waiver because of the surmised effects of whatever solution was in his IV and/or the effects of his impairment by alcohol which Mr. Ashurov argues had by then begun to seriously affect him after his alleged 'bolus drinking.' There is absolutely no evidence of the contents of the IV solution and the accused simply testified that he felt lighter and good after it had been installed.
[320] With respect to the suggestion that the accused's impairment by alcohol had adversely affected his ability to understand questions and his responses at the hospital I note that he himself testified that he thought that the police had offered him the opportunity to speak to a lawyer but he simply hadn't been paying too much attention.
I find that that evidence belies Mr. Ashurov's submission to a considerable extent.
[321] I also find that the accused's evidence that he agreed to provide breath samples because that was "part and parcel' of a motor vehicle accident, the same as in the Ukraine, reveals a cognitive, logical, thought process that is inconsistent with an argument that his cognitive condition at the time was akin to the lack of an operating mind.
[322] For these reasons I find that the accused has not established on the required standard of a balance of probabilities that his s. 10 [b] Charter rights were breached.
I specifically find that he unequivocally and categorically waived his right to counsel at the hospital to PC Caron.
## The Physical Symptoms Of Impairment
[323] I agree with Mr. Ashurov that the totality of the evidence reveals virtually no physical symptoms on the part of the accused before the collision that would be consistent with impairment by alcohol of his ability to operate his motor vehicle and inconsistent with an innocuous explanation such as the trauma and his sustained injuries from the obviously serious collision and noxious vapours emitted by the deployed air bag.
[315] Even his relatively slow left turn on his yellow light cannot, in my opinion, in light of the evidence about the possibly impaired ability and/or lack of an attempt of the dump truck driver to stop for his yellow light, be considered to be a probative symptom of impairment sufficient to meet the Stellato standard.
[324] Therefore, I find that the s. 253[1] [a] count will stand or fall on the result of the 'bolus drinking' issue as it relates to the impact of the toxicological evidence of Dr. Mayers.
Quite frankly the same holds true for the s. 253[1] [b] count.
## The Bolus Drinking Issue
[325] I agree with Mr. Ashurov that the totality of the evidence in the case for the Crown, quite apart from the evidence of the accused, is sufficient to "at least put the possibility that the accused had engaged in bolus drinking in play".
See par. 32 of R.v.Lima supra.
[316] Also, specifically, by his own evidence, the accused has testified that he had only consumed one beer early in the morning some 4 or 5 hours before he began to drive.
He also testified that he did consume approximately 20 ounces of vodka immediately after the collision within the span of the very few minutes that were available to him before the approach to him by the first police responder.
In addition he has provided evidence of his alcoholism which Mr. Ashurov submits should take him out of the general public of drivers who, states the Ontario Court of Appeal, would not be expected to engage in such bolus drinking.
[326] Other factors which have informed my opinion that bolus drinking by the accused after the collision is a live issue in this case include the fact that there is no evidence of aberrant driving by him before he made his left turn at the intersection and was struck by the dump truck.
I find that the preponderance of evidence at trial allows me to conclude that he made that turn on a yellow light and not on a red light, albeit seemingly somewhat slower than the witnesses thought should have been the case.
[327] There is also no suggestion that he had just recently been in a nearby licensed establishment.
[328] I also find the evidence of the presence of the empty and partly full bottle of vodka in the rear of his van to be relevant and probative with respect to the bolus drinking issue.
[329] There is also the evidence that the accused was not exhibiting manifest physical symptoms of impairment to those witnesses, including P.C. Urie, who observed him immediately after the collision, whereas he did exhibit significant symptoms later on at the hospital and during his interaction with the intoxilyzer technician.
[330] For these reasons I find that the Crown does bear the onus of proving the facts which formed the underpinning of Dr. Mayers' assumption that the accused had not engaged in 'bolus drinking'.
[331] However, I respectfully disagree with Mr. Ashurov's submission that the totality of the evidence should lead the Court to the conclusion that the Crown has not discharged its evidentiary burden of disproving the 'bolus drinking' issue.
[332] In reaching this conclusion I have engaged in the evidentiary analysis mandated by the Supreme Court of Canada in [R.v.W.D.](https://www.canlii.org/en/scc/doc/1991/1991canlii93/1991canlii93.html), 1991 63 C.C.C. 397 with respect to the entire body of evidence that was presented in the case for the Defence, including the evidence of the accused that he engaged in 'bolus drinking' after the collision, in the context of the totality of the evidence on this trial.
[333] Specifically, I find that the totality of the evidence leads me to conclude that the accused did engage in a cognitively aware discussion with P.C.Caron during the breath tests procedure wherein he categorically stated to the officer that he had not consumed any alcohol beverages since the collision.
Then, only after the officer frankly told him that he did not believe the accused's one beer story early in the day as having been the extent of his alcoholic beverage consumption did the accused tell him that he had consumed 5 to 6 beers and also lots of vodka the previous evening until about 2 am.
[334] Even then, when his attention had been directed to the officer's skepticism about his alcohol consumption on that day he did not tell him that he had consumed the large amount of vodka immediately after the collision that he is asking the Court to believe that he did.
Like the Crown, I find this to be very troublesome when I assess the credibility of the accused's evidence that he had engaged in the 'bolus drinking' that he has urged this Court to find accounts for the results of his breath tests.
[335] I find that his answer about having driven from Guelph Line to be totally anomalous with the evidence of the direction of his van before the collision but, in light of the many other logical responses that I find he made to P.C. Caron, I am not persuaded that this answer should cause me to find that his other responses should not be relied upon by the Court.
[336] I am prepared to give the accused the benefit of the doubt on the question of whether he would have been capable of consuming the 20 oz. of straight vodka in the very few minutes that were available to him after the collision and before the intervention of P.C. Urie for two reasons.
Firstly, I have no medical or scientific opinion to the contrary.
Secondly, I accept the submission of Mr. Ashurov and the evidence of the accused that his experience as an alcoholic would make it much more likely that he, as opposed to some other members of the general public, could accomplish such a feat, especially with his beverage of choice and habit, that being vodka.
[337] However, I found some of his evidence about how he managed to accomplish this consumption to lack an air of reality.
Specifically, his explanation of how he managed to undo the sealed screw top of both bottles by holding them stable with his right hand and undoing the tops with his left hand because his right elbow was severely injured and painful at the time gives me some circumspection about the credulity of that evidence.
He only discussed this when the Court asked him questions for clarification.
He is right-handed he agreed.
[338] I also found to be somewhat incredible his evidence that the huge dump truck's front end that blasted right through his passenger door and ended up just inches from his own body also just happened to deliver the 2 vodka bottles that he had purchased and placed on the passenger seat before the collision right next to his right thigh, undamaged, and within reach of his injured right arm so that he could avail himself of them in rapid succession.
[339] Also, I found his evidence that he stopped drinking as soon as he was about to be approached by the police and somehow managed to toss the empty and part full bottles into the rear of the van despite having obviously severely restricted ability to move his limbs to be troublesome.
I also query why he would be so concerned to have the police see him drinking after the collision if he did so because of the trauma of the collision as he has testified.
[340] For all of these reasons I agree with the Crown that I should reject the accused's evidence of 'bolus drinking' after the collision and I do so.
Therefore, I find that the Crown can rely upon the toxicological evidence of Dr. Mayers to establish beyond a reasonable doubt that the accused's BAC at the time of the collision was between 275 and 325 mg. of alcohol in 100 ml. of blood, well in excess of the legal limit for operating a motor vehicle of 80 mg. of alcohol in 100 ml. of blood.
[341] I also accept the opinion of Dr. Mayers that the accused's ability to operate his motor vehicle was impaired by alcohol at that BAC level.
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# Conclusion
[342] For all of these reasons I find that the Crown has proven each of the charges of s. 253(1)(a) and s. 253(1)(b) against Mr. Mudryk beyond a reasonable doubt and I find him guilty of both charges.
[343] I thank both counsel for their thorough and detailed presentation of this difficult case.
There were most certainly live issues to be litigated.
[344] These are my written reasons for my oral verdicts of guilty on each count on June 10, 2013.
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Released: August 12, 2013
Signed: "Justice F.L. Forsyth"
