Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Gallican Gasana
Before: Justice Paul F. Monahan
Reasons for Judgment at Trial
Heard on: November 2 and 3, 2016
Reasons for Judgment released on: December 2, 2016
Counsel
G. Gill — counsel for the Crown
B. Starkman — counsel for the defendant Gallican Gasana
MONAHAN J.:
Introduction and Overview
1Mr. Gasana is charged with having operated a motor vehicle while his ability to do so was impaired by alcohol, contrary to s. 253(1)(a) of the Criminal Code of Canada (the "Code"). In addition, he is charged with having operated a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 mg of alcohol in 100 mL of blood, contrary to s. 253(1)(b) of the Code. The offences are alleged to have taken place on April 5, 2015.
2The defendant brought an application returnable on the first day of trial to stay this proceeding on the basis that his right to be tried within a reasonable time had been violated contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter"). I heard argument on the s. 11(b) application and then deferred my ruling on it and proceeded to hear the trial evidence on the basis that I would first determine the s. 11(b) application. If the application was successful, that would lead to a stay and be the end of the matter. If the application was unsuccessful, I would proceed to make a decision on the trial proper. For separate reasons released December 2, 2016, I dismissed the s. 11(b) application. Accordingly, these are my reasons on the trial proper.
3Mr. Gasana also brought a s. 8 Charter application at trial. On consent, it was heard on a blended basis with the trial proper.
4At trial, the Crown called five witnesses: Mr. K. Johansen, a paramedic; Ms. B. McComb, a paramedic; Officer D. Matlashewski, the arresting officer; Officer D. Clarkson, an officer who assisted in the arrest; and Officer A. Scarchilli, the breath technician.
5After the Crown's case was complete, the defence conceded that the s. 8 Charter application could not succeed and also conceded that the Crown had proved the over 80 charge beyond a reasonable doubt. The defence maintained that the Crown could not prove the case on the impaired driving charge beyond a reasonable doubt. The Crown was not prepared to accept a finding on only the over 80 charge and the case continued. The defence called one witness on the trial proper, namely Constable A. Wong, who assisted the investigation by taking a statement from the two paramedics.
6I accept the defence's concession on the s. 8 Charter application and the over 80 charge. I find that there were reasonable and probable grounds for the arrest and that the evidence does prove the over 80 case beyond a reasonable doubt.
7The only remaining issue is whether the Crown has proved the impaired driving charge beyond a reasonable doubt. In order to determine this question, I will briefly review some of the evidence. I may expand on that evidence in my analysis below.
Overview of the Evidence
(i) K. Johansen
8Mr. Johansen was on duty as a paramedic on April 5, 2015. It was approximately 3:20 AM. He was driving an ambulance. He was accompanied by his colleague, Ms. B. McComb, also a paramedic, who was seated beside him in the passenger seat of the ambulance. Mr. Johansen had been a paramedic as of the time of his trial testimony for 5 years.
9The two paramedics were westbound on Queen Street stopped at a red light at Dixie Road in the City of Brampton. The vehicle the defendant was operating was northbound on Dixie, about to turn left and head west on Queen Street. There was a car behind it honking at the defendant's vehicle to turn left which it did almost causing an accident with a vehicle headed southbound on Dixie.
10Mr. Johansen testified that he and Ms. McComb followed the defendant's vehicle and he said he observed it driving erratically, fast and slow and drifting over the lane median. He said that Ms. McComb contacted the paramedics' dispatcher and, thereafter, directly contacted the police dispatcher as they were both concerned that the driver of the vehicle they were observing was impaired.
11Mr. Johansen said that they were always within 100 meters of the vehicle. He said that the erratic driving pattern remained the same and that they followed the vehicle for about 10 minutes.
12The police ultimately pursued the defendant's vehicle and pulled it over. Mr. Johansen and his partner Ms. McComb gave a joint statement to police. He testified that he had refreshed his memory the morning of his trial testimony by reviewing the joint statement. He testified that both he and his partner contributed to the statement. He said that the matters testified to at trial were matters that he recalled.
(ii) B. McComb
13She testified that she had been a paramedic for 18 years as of the time of her testimony.
14She testified to being stopped at a red light westbound Queen at Dixie. She said that she and her partner Mr. Johansen had witnessed a near miss accident which nearly "took our breath away". The defendant was attempting to turn his vehicle left from the northbound Dixie lanes onto westbound Queen. He had a green light. He turned in front of a vehicle which was southbound Dixie and nearly caused an accident.
15They followed the defendant's vehicle. They put their ambulance floodlights on for safety. They pulled alongside of the defendant's vehicle and she got a good look at the driver who she said was very slow in his movements and was not able to make eye contact with her. She said that she had been a paramedic for a long time and that she had seen a lot of people who were sick, impaired or perfectly fine. She thought, based on her experience, that he was impaired by drugs, alcohol or illness. She said that it was "blatantly obvious" that he was not fit to drive. She said there were five people in the car including the driver.
16She telephoned the paramedics' dispatcher and then called the police dispatcher directly to express concern about an impaired driver.
17She observed that the defendant's vehicle was going slow and then going fast and doing odd things like stopping far from a red light and then accelerating towards the light.
18She testified to being a couple of car lengths back from the vehicle but that it changed from time to time. She said they were generally either a couple of car lengths or a car length away from it. She disagreed when it was suggested to her that they were a 100 meters from the vehicle.
19The police ultimately took over the pursuit of the vehicle and pulled it over. The paramedics stopped and gave a joint statement to the police. She said that they both contributed to the statement.
20She testified to reviewing the joint statement to refresh her memory the morning of her trial testimony but testified that she did not need the statement to recall what had occurred and what she had observed.
(iii) Officer D. Matlashewski
21Officer Matlashewski has been an officer with Peel Regional Police for 6 years. He was on uniformed patrol in a fully marked cruiser on April 5, 2015. He received a call for a possible impaired driver. The call was received at 3:27 AM.
22When he saw the defendant's vehicle, the officer was eastbound on Queen Street in Brampton. The defendant's vehicle was coming from Beech onto Queen Street West. It was initially going at a high rate of speed and straddling 2 lanes. The officer did a U-turn to follow the vehicle.
23As the defendant's vehicle approached Main Street, the vehicle signalled left but then changed lanes to the right lane and signalled right and turn right onto Main Street. The vehicle then turned onto a side street and was going very slowly and was weaving within its lane on that side street. The officer effected a tandem stop with another police vehicle driven by Officer Clarkson.
24The officer acknowledged in cross-examination that as the defendant was straddling the lanes (when the officer first saw him) he was in the process of changing lanes. After that, the defendant held a reasonable speed for two kilometres. His right turn on Main Street was appropriate. After he turned onto the side street he was doing 30 km an hour in a 50 km zone. The officer acknowledged that people often slow down when a police cruiser is behind them. Further, the tandem stop was a routine method used by the officer to stop a vehicle.
25He approached the vehicle and spoke to the driver who was the defendant. He detected the smell of alcohol from the breath of the driver. He said that as the driver exited the vehicle, the vehicle lurched forward as if he had failed to properly put the vehicle in park.
26The officer observed that the defendant had red rimmed and watery eyes. After he got out of the vehicle, as he walked along the police cruiser, he reached out his hand to the cruiser apparently to steady himself. He had difficulty retrieving his licence from his wallet.
27At this point in time, the officer formed the opinion that Mr. Gasana's ability to operate a motor vehicle was impaired by alcohol and he placed him under arrest for this charge. He was read his rights to counsel and cautioned.
28Back at the station, there was no unsteadiness on his feet and Mr. Gasana was cooperative. Mr. Gasana's speech was normal throughout.
(iv) Officer D. Clarkson
29Officer Clarkson was the second officer who assisted with the arrest. He was driving a separate police marked vehicle and he was involved in the tandem stop. He also approached the vehicle and detected alcohol on the breath of the driver who was the defendant. He said the driver had red eyes and a very blank confused look on his face. He observed the lurching forward of the vehicle as the driver was stepping out of it without properly putting it into park.
(v) Officer A. Scarchilli
30Officer Scarchilli is a qualified breath technician. He received grounds for the arrest from Officer Matlashewski and receive custody of the defendant. He obtained two breath samples from the defendant. The first was at 4:25 AM and registered 180 mg of alcohol in 100 mL of blood. The second was at 4:47 AM and registered 170 mg of alcohol in 100 mL of blood.
31He observed the defendant to have bloodshot and watery eyes and had a smell of alcohol emanating from this breath. He was cooperative.
32Officer Scarchilli testified that based on the test results and his observations of the defendant, he formed the opinion that the defendant's ability to operate a motor vehicle was impaired by alcohol and that he had been operating a motor vehicle with excess blood alcohol.
(vi) Constable A. Wong
33Constable Wong was called as a witness at trial by the defence.
34He had only been a police officer for 8 months at the time of the alleged offence date of April 5, 2015. He took the statement of the two paramedics as a single joint statement that they both signed. He testified that he recognized now that he should not have done it that way and that he should have taken separate statements. He did it by way of a joint statement because of his inexperience. He recalled that most of the statement was based on what the driver (Mr. Johansen) had said.
Has the Crown Proved the Impaired Driving Charge Beyond a Reasonable Doubt?
35The only issue in the case is whether the Crown has proved beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by alcohol at the relevant time.
36The following test for proof of impaired care or control of a motor vehicle was stated by Labrosse J.A. for the Ontario Court of Appeal and approved of by the Supreme Court of Canada (see R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont.C.A.) at 384 affirmed, [1994] 2 S.C.R. 478):
In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (emphasis added)
37The Court can consider the views and perspectives of police officers and laypersons on whether at the time they thought the defendant was impaired in his ability to operate a motor vehicle: see R. v. Graat, [1982] 2 S.C.R 819.
38Absent expert evidence, the Court cannot consider the blood-alcohol readings alone as evidence that the defendant was impaired in his ability to operate a motor vehicle. However, the blood alcohol readings are evidence of the fact that the defendant had alcohol in his system. Together with other evidence, the blood alcohol readings may be considered for the purpose of determining whether the defendant was impaired in his ability to operate a motor vehicle: see R. v. Nandlall, [2009] O.J. No. 3452 (S.C.J.) (per Himel J.) at para. 6 and R. v. Selvarajah [2011] O.J. 4158 (C.J.) (per Melvyn Green J.) at para. 17.
39Ultimately, the Court must ask itself whether on a consideration of all of the evidence, the Crown has proved beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by alcohol.
40Notwithstanding defence counsel's able arguments, it is my view that a consideration of the evidence as a whole leads to only one conclusion: the defendant operated a motor vehicle while his ability to do so was impaired by alcohol and that this conclusion has been proved beyond a reasonable doubt. I base this conclusion on a consideration of the evidence as a whole including the following:
(i) Ms. McComb was a strong witness in my view. By reason of her lengthy experience as a paramedic (more than 16 years at the time of the events in question) she had seen many impaired people. She observed the defendant's vehicle almost get in an accident with another vehicle at Queen Street and Dixie; she saw erratic driving thereafter and she got a good close look at the defendant while he was behind the wheel. She expressed the view that it was blatantly obvious that he should not have been driving and that she thought he was impaired by drug, alcohol or illness. She was sufficiently concerned that she immediately called the paramedics' dispatcher and then called the police dispatcher directly. She and her partner followed the defendant for 5 to 10 minutes over a number of roadways and she observed erratic driving over that period of time including driving fast and slow; and stopping much earlier than he should have at an intersection and then accelerating inappropriately;
(ii) Mr. Johansen also saw the near accident described above and also observed erratic driving on the part of the defendant;
(iii) While most of the driving observed by Officer Matlashewski would not in and of itself support an impaired driving charge, there was some poor driving observed as well as other indicators pointing towards impairment: a high rate of speed at the beginning; signalling left and then signalling right at Main Street; weaving within his lane on the side street; allowing the vehicle to lurch forward as he was getting out of it without properly putting the vehicle in park; the defendant needed to steady himself as he walked beside the cruiser and he had difficulty retrieving his license; and the arresting officer observed red rimmed and watery eyes together with a smell of alcohol coming from the defendant's breath;
(iv) Officer Clarkson observed the lurching of the vehicle forward as the defendant was getting out of the vehicle and he noted a confused blank look on the face of the defendant; and
(v) The breath technician received the blood alcohol samples of 180 mg and 170 mg of alcohol in 100 mL of blood and formed the view based on these readings and his observations of the defendant that his ability to operate a motor vehicle was impaired by alcohol. The main point I derive from this evidence is that the defendant clearly had alcohol in his system.
41It is not any one of the foregoing factors that I rely upon for my conclusion that the impaired driving charge has been proved. Rather, it is my cumulative consideration of the foregoing factors in the context of the evidence as a whole.
42The defence submits that the circumstances are suspicious but that they do not amount to proof beyond a reasonable doubt. The defence submits that the evidence of the two paramedics (Mr. Johansen and Ms. McComb) is tainted and therefore unreliable because they both refreshed their respective memories of the events by using a joint statement given at the time of the events. This submission continues that a joint statement is improper and in any event, makes it impossible to now reliably determine what each paramedic saw and what they did not see. The defence supports this argument by pointing out that the driving observed by the arresting officer was not such that one would say that the defendant was impaired and, further, that the roadside observations of unsteadiness and difficulty finding his license were minor and are to be distinguished from the observations at the police station where Mr. Gasana appeared steady and cooperative with normal speech.
43Let me address the joint statement point relating to the evidence of the paramedics Mr. Johansen and Ms. McComb. I agree with the defence that it is not helpful that they both gave a joint statement at the time and then refreshed their memories with the joint statement before testifying. However, in my view, that goes to the question of the reliability and weight to be given to their testimony. Notwithstanding the joint statement, in considering their testimony at trial before me, I was not left with any concern that either of the paramedics had testified to matters that they did not actually witness and recall; or had misremembered the events. Neither witness was contradicted with the joint statement at all. The Court was not left with any impression or concern that Mr. Johansen and Ms. McComb had confused their actual memories of the events by reason of the joint statement. Each witness had an independent recollection of the events. Their testimony was similar in many respects but different in others. It makes sense that two people seeing the same thing might recount the events differently. Nevertheless, there was a central core observation running through both of their testimonies that they never moved off of: the defendant was involved in a near accident and was driving his vehicle in an erratic fashion over an extended period of time.
44Consider, for example, Ms. McComb's evidence regarding her up close view of the defendant and her observation that she thought he was impaired by drug, alcohol or illness and that it was blatantly obvious that he should not have been driving. Her evidence was not challenged on this point at all. There was no suggestion, for example, that it was in fact Mr. Johansen who made this up close observation of the defendant and that Ms. McComb had related it at trial as if it was her own observation. I do understand that Mr. Johansen did testify to seeing the defendant up close but he did not have the same close vantage point as Ms. McComb and he was occupied driving the ambulance. He did not relate the same point about the defendant looking impaired when seen up close.
45The evidence of Constable Wong that he thought that Mr. Johansen had contributed more to the statement than Ms. McComb did is of no moment. He was the officer who made the error in doing a joint statement in the first place so I hesitate to put too much weight on his evidence. In any event, the paramedics testified at trial to what they were recalled regardless of who contributed more to the statement.
46I recognize as well that the driving observed by the arresting officer was not nearly as bad as the driving observed by the paramedics but that does not cause me to doubt the poor driving the two paramedics said that they observed.
47The defence also points out that the defendant was walking steadily back at the station and that his speech was fine throughout and that this ought to cause the Court to question the reliability of the other evidence which suggests impairment.
48As far as I am concerned, none of the conflicting evidence (including the driving observed by the arresting officer and the defendant's apparent stability and good speech at the police station) raises a reasonable doubt in my mind when the evidence as a whole is considered. Considering all of the evidence, the charge of impaired driving has been proved beyond a reasonable doubt.
Summary and Conclusion
49For the foregoing reasons, the over 80 and the impaired driving charges have been proved beyond a reasonable doubt. I will invite submissions of counsel as to whether one of the proceedings should be stayed in light of the double jeopardy principle.
Released: December 2, 2016
Justice Paul F. Monahan