Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Hamda Mohamed
Before: Justice H. Pringle
Heard on: January 16, 2018, January 17, 2018, and February 23, 2018
Reasons for Judgment released on: April 10, 2018
Counsel
Nathan Kruger — counsel for the Crown
The defendant Hamda Mohamed — on her own behalf
Judgment
Overview
1Ms. Mohamed pled not guilty before me, on charges of Impaired Driving and Driving with Over 80 mg of Alcohol in 100 ml of Blood, contrary to ss. 253(1)(a) and (b). Sections 253(1)(a) and (b) of the Criminal Code state:
S. 253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; [hereinafter "Impaired Driving"] or
(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eight milligrams of alcohol in one hundred millilitres of blood [hereinafter "Drive While Over 80 mg"].
2The Defendant resisted the charges by advancing a s. 10(b) Charter challenge. More particularly, she argued that she was detained by police without being advised of her rights to counsel or given a chance to implement that right. The remedy she sought was exclusion of all evidence obtained after the Charter was breached, including two breath test readings. Ms. Mohamed also argued the Crown had not proven beyond a reasonable doubt that she was driving her vehicle at the relevant time.
3I have found the Defendant guilty of Impaired Driving, but not guilty of Driving While Over 80 mg of Alcohol in 100 ml of Blood. Her acquittal on the latter charge rests on the success of her Charter application. I have been persuaded to the requisite balance of probabilities standard that the Defendant's Charter rights were infringed. I have excluded the breath samples obtained after the Charter breach. However, even absent the breath test results, the evidence as a whole still persuaded me beyond a reasonable doubt that the Defendant was driving her car at the relevant time and while her ability to do so was impaired by alcohol. These are my reasons.
The Crown's Evidence At Trial
4On February 23, 2016, Ms. Mohamed went to a bar with some friends. That bar was called the "Get Well", and was located on Dundas West near Ossington. There was no table service inside the bar, so in order to get served alcohol, a person had to order from a bartender at the bar. There were two bartenders working that night – Savannah Briand and Jeb Thomas-Mitchell. Both were experienced bartenders, having years of experience in addition to Smart Serve training.
5The bar was at half capacity that night, meaning about 40 or 50 people were inside. Ms. Briand testified that Ms. Mohamed arrived at about 10 or 11 p.m. She was not intoxicated when she came in. Ms. Mohamed's friends arrived at the bar shortly after, and the group began to drink alcohol. In order to run a tab, Ms. Mohamed left a debit card at the bar with the bartenders.
6Ms. Briand personally served Ms. Mohamed four drinks. Three of those drinks were standard pour 1 oz. gin and tonics, and the other was a shot of tequila. Mr. Thomas-Mitchell knew that his colleague Ms. Briand was serving the group. He was also serving them. Personally, he served Ms. Mohamed between two to three beers and one or two shots. The more the group of friends drank, the louder they got but none of them were disruptive or acted out of line. Ms. Briand also observed Ms. Mohamed slurring her words a bit.
7Later in the evening, Mr. Thomas-Mitchell overheard a conversation between Ms. Mohamed and her friends. They were debating whether Ms. Mohamed should take an Uber home. This conversation prompted Mr. Thomas-Mitchell to ask Ms. Mohamed how she got to the bar. Ms. Mohamed replied that she had driven to the bar. In Mr. Thomas-Mitchell's opinion, based on the amount of alcohol she consumed and her "louder" behaviour, the Defendant was drunk. He grew concerned about her driving home.
8At approximately 12:30 a.m., Ms. Mohamed's friends left the bar. Before they left, they told Ms. Briand that the Defendant should not drive home. This was admitted for narrative only, as it caused Ms. Briand to put an "X" on service and cut Ms. Mohamed off from buying more alcohol. In Ms. Briand's opinion, at this point Ms. Mohamed was "very drunk". She offered to call her a cab. At some point, Ms. Mohamed appeared to be communicating with a driving service and arranging a ride. While in Ms. Briand's opinion, Ms. Mohamed was faking these calls, it was equally possible Ms. Mohamed was communicating with someone.
9In any event, the bar staff had no intention of permitting Ms. Mohamed to drive home, and were attempting to sober her up to some extent. They urged water upon her, and gave her a slice of pizza. The conversation about driving continued, with Ms. Mohamed assuring them she would not drive home. She then got a phone call, said "Oh, you are here. I'll be right out" and left the bar. Ms. Briand put the time of her departure at approximately 1:00 a.m. Security staff followed her out, tasked with ensuring she did not drive. That security person, who was not called as a witness, returned with apparently no concerns.
10About 20 or 30 minutes later, the Defendant returned to the bar. She told Mr. Thomas-Mitchell that she left her debit card at the bar. Mr. Thomas-Mitchell, surprised, replied that the Defendant had already paid her tab, and that her debit card was given back to her. At this point, he still believed that the Defendant was drunk and gave her a piece of pizza. Ms. Mohamed remained in the bar about 5 or 10 minutes more, again assuring Mr. Thomas-Mitchell that she would not drive herself home.
11Dylan Maloney was drinking at a different bar on Dundas West that night. He had two or three bottles of beer and two or three shots of whiskey. He was in a "pretty good mood" when he left the party, and claimed not to feel any effects from the alcohol he had consumed. Mr. Maloney left the bar at, he said, 11:30 p.m. He and his friends walked across Dundas West, chatting with each other. They were a few blocks away from Dundas West and Ossington.
12The streets were fairly empty, although there were two or three parked cars at the side of the road. At that hour, the two inside lanes were used for driving and the two curb lanes were used for parking. The area was dim, lit only by streetlights. To Mr. Maloney's observation, there were no other pedestrians around aside from himself and his two friends.
13After Mr. Maloney and his friends crossed Dundas Street, they heard a crash. Turning back, he observed a white hatchback on its "nose". It was in the process of flipping over. It kept flipping over until its roof was on the ground and its wheels were in the air. This white hatchback appeared to have been struck by a darker-coloured car. Both cars were in the north side curb lane. Although he did not observe the actual accident, Mr. Maloney inferred that the darker coloured car had struck the white car directly from behind.
14Stunned for a moment, Mr. Maloney gathered his composure and then ran over. He first approached the car that hit the white hatchback. A woman stepped out of the driver's side door, and Mr. Maloney asked if she was okay. She replied that she was, and asked if the white car belonged to him. He said it did not, and then walked back to the hatchback to ensure no one was inside. Luckily, no one was.
15Five or ten people had come out of the bar in response to the crash. Some began to take photos of the accident scene and the cars involved. Mr. Maloney watched as the female driver went over to them, and heard her yelling at them to stop taking photos. He wondered if she had been drinking, because she was acting "sporadic". But she was walking normally, and he had not detected the smell of alcohol when they spoke briefly.
16Mr. Maloney stepped across the street to call 911. Although he was not in close proximity to the female driver, he could still see what she was doing. He saw her interacting with one of his friends, and then hugging him. While he was on the phone with 911, which took about five minutes or so, the female driver did not leave the accident scene.
17Observing emergency lights coming down the road, Mr. Maloney told his friends it was okay to leave. The emergency vehicle was perhaps one or two traffic lights from the accident scene. It had taken five or ten minutes to arrive. When his group left, Mr. Maloney observed the female driver was still on scene, as were five or ten other people. Mr. Maloney was unsure whether the emergency vehicle was an ambulance or not, and he did not see the Camry driver interact with emergency personnel.
18Mr. Maloney identified, in court, the Defendant as the driver of that darker coloured car. He had never seen her before. This in-court identification was not supported by any other identification process, such as a photo lineup. I gave this in-court identification no weight. Mr. Maloney described the female driver, in court, as 5 foot five or six inches tall, with curly black, darker coloured hair, mid-20s, and a little "on the heftier side". In cross-examination, Mr. Maloney acknowledged that in his statement to police, he inconsistently described the driver as having a "thin to medium build" and wore black clothing. He then adopted this prior description as true.
19At 1:53 a.m. that morning, PC Shi got a radio call reporting a personal injuries collision on Dundas Street West. He arrived on scene at 2:04 a.m. Fire trucks and ambulances were on scene. PC Shi observed a black Toyota Camry with severe damage to its front end, closer to the passenger side. The passenger side door was inoperable due to front end damage. The engine appeared to be leaking fluid. The driver's side air bags had deployed. He saw a set of keys near or on the front passenger seat. The Camry was near the curb lane and faced west. The Camry's licence plate was BNCL 132. A white Ford hatchback was flipped over on its roof nearby. Its front bumper was facing west. Because of the amount of force necessary to flip the hatchback over, PC Shi concluded the black Toyota must have been traveling westbound at an excessive speed when it struck the parked vehicle.
20Based on information received from paramedics, PC Shi went over to ambulance #982. A female, the Defendant, was sitting inside. Paramedics had earlier told PC Shi she had been medically cleared. She was five foot three to five foot five, heavy set, and had long, straight black hair. She wore a black coat. She had no visible injuries and identified herself as the registered owner of the Toyota Camry.
21In response to PC Shi's inquiries, the Defendant told PC Shi that she had gone to a bar located at 1181 Dundas Street West for a few drinks with friends. At some point during the evening, she must have lost her car keys. Her car had been parked on the street near the bar and, not seeing it when she left, she concluded it had been towed. The Defendant told PC Shi that she got into an Uber and, while being driven westbound, came upon the collision scene and realized it involved her car.
22PC Shi detected a strong smell of alcohol coming from the DF's breath. Her speech was fine and there were no other observable indicia of impairment. At this point, PC Shi was not "100 percent" sure whether or not she was impaired. When he asked her about contacting Uber, she fumbled with her phone and was not able to provide information about her contact with Uber. While he knew from her own admission that she had been drinking prior to the accident, PC Shi was unsure whether she had been driving her car at the time of the accident.
23They spoke in the ambulance for about 15 minutes before PC Shi left. He did not tell her he was going to arrest her, or that she was detained. He testified he did not have grounds for an impaired arrest at that stage in his investigation. Accordingly, he did not provide her with her rights to counsel or caution her. PC Shi did not explicitly say, when he left the ambulance, that the Defendant should remain there. He did, however, say "I'll be back". He then left. The time was, by my calculation, approximately 2:15 a.m.
24PC Shi testified that, had the Defendant chosen to leave the scene and take a cab home, or go to hospital, she would have been free to do so. The only information he had, at that point, was that she was the registered owner of the vehicle involved in the accident. He intended to continue his investigation, into whether her car or car keys had been stolen and into whether she had been driving her car having consumed alcohol. He did not inform her that she was free to leave. When asked why, PC Shi testified the Defendant did not ask him if she was free to leave. Had she asked, he would have told her.
25Leaving her alone in the ambulance, PC Shi directed an officer to attend the bar she had been at. He then conducted interviews of two people – one being Dylan Maloney – who had called 911. As a result of his phone interview of Mr. Maloney, PC Shi formed grounds that the Defendant had been driving her car, while her ability to do so was impaired, at the time of the accident. These grounds were based on the speed of her car, the very strong odour of alcohol coming from the Defendant's breath, the impact on the parked vehicle, and Mr. Maloney's description of the Camry's driver that matched the Defendant.
26PC Shi returned to the ambulance, where the Defendant was still waiting, and placed her under arrest for impaired driving. It was now 3:04 a.m. He read her rights to counsel and she advised she understood. She was provided an informal primary caution about speaking with police, and then an "approved instrument" breath demand was made at 3:09 a.m.
27At the station, since the Defendant had no lawyer of choice to contact, PC Shi placed her in touch with duty counsel at 3:57 a.m. That call ended at 4:01 a.m., and the Defendant was brought over to qualified breath technician PC Simakov. PC Simakov noted no overt effects of alcohol, save and except for the weak odour of alcoholic beverage coming from the Defendant's breath. More particularly, there was no stumbling, no difficulties with speech, and no problems with the Defendant's fine motor skills.
28At 4:11 a.m., PC Simakov received a breath sample result of 155 mg of alcohol in 100 ml of the Defendant's blood. At 4:35 a.m., he received a second breath sample result of 156 mg of alcohol in 100 ml of the Defendant's blood.
29Dr. Daryl Meyers, an expert from the Centre for Forensic Science, testified following a qualification voir dire. He was permitted to opine on the absorption and distribution of alcohol in the human body, the effects of alcohol, and the operation of the Intoxilyzer 8000C. In his opinion, the Defendant's readings of 155 mg and 156 mg of alcohol in 100 ml of blood, taken at 4:11 a.m. and 4:35 a.m. respectively, would read back to:
- Between 12:30 a.m. to 1:00 a.m., a blood alcohol concentration of 160 to 225 mg of alcohol in 100 ml of blood;
- Between 1:00 a.m. to 1:30 a.m., a blood alcohol concentration of 155 mg to 215 mg of alcohol in 100 ml of blood;
- Between 1:30 a.m. to 2:00 a.m., 150 to 205 mg of alcohol in 100 ml of blood.
30Dr. Meyers testified that in his opinion, which he acknowledged was not universally accepted, a person's ability to drive a motor vehicle was impaired at 50 mg of alcohol in 100 ml of blood. It was universally accepted, he said, that as blood alcohol levels rise, impairment increases. He stated that a person whose ability to drive a motor vehicle is impaired may show no visible signs of intoxication, depending on factors like tolerance.
31The defence called no evidence at trial.
Were the Defendant's s. 10(b) Rights Breached?
32Mr. Kruger, in accordance with his role as a quasi-Minister of Justice, brought a potential Charter issue to my attention. He agreed that PC Shi's testimony should apply, in a voir dire sense, to the question of whether the Defendant was detained inside the ambulance and thus should have received her rights to counsel. I therefore considered his testimony as part of the voir dire as well as on the trial proper.
33Accordingly, the Defendant effectively advanced a Charter application. She testified on the s. 10(b) voir dire, with her testimony circumscribed to the Charter issue. The Defendant, at 34 years old, was university-educated and had no criminal record. She testified that, on the night she was arrested, she was brought into the ambulance by paramedics. This happened after she told them she was the owner of the black Camry. The paramedics checked her out medically, and then told her a police officer would come in to speak with her. So the Defendant remained there. Shortly afterwards, PC Shi came inside the ambulance.
34PC Shi questioned the Defendant about her whereabouts that night, and she answered all of his questions. She explained, in her testimony, that if you are told police want to talk to you, you talk to police and you must answer their questions. A police officer was an authority figure, in her eyes. Although PC Shi did not handcuff her or place her under arrest, her belief was that she must cooperate.
35She echoed PC Shi's testimony that when he left the ambulance, he said he would be back. This, she testified, was the reason why she stayed inside the ambulance. She did not feel free to leave. Even though the Defendant acknowledged that PC Shi never explicitly told her to stay inside the ambulance, she clearly took the statement "I'll be back" as a direction or a demand to stay there until he came back.
36When asked again whether she felt free to leave the ambulance, the Defendant responded that she had never been in this type of situation before. I interpreted this to mean she had no experience with the process of being arrested and being informed about the right to counsel following arrest or detention. She repeated that in her mind, if an officer says they will be back with you, you must wait until they come back to you.
37In cross-examination, the Defendant acknowledged telling PC Shi that her car keys were missing, that she believed her car had been towed, and that she happened onto the accident scene and concluded her car had been stolen. She admitted to hoping that the reason PC Shi left the ambulance was to investigate who stole her car. She did not think the officer was investigating her criminally. Throughout cross-examination, the Defendant maintained that she was not, in her mind, free to leave the ambulance after PC Shi said he would be back.
38She acknowledged being educated about her rights, and the Charter, and that she was not afraid to stand up for herself generally. However, when Crown counsel suggested that she knew people are not obliged to obey police, she politely answered that this did not reflect her experience with police. More specifically, she said that while this may be the Crown Attorney's experience, it was not hers. It was obvious that this was a reference to her own perceptions and experiences from the perspective of a young black female, and I found her evidence rang true here.
39The Defendant testified that even if police said they were there to help you, this was not necessarily the case in reality. Despite PC Shi's courtesy and professionalism, which the Defendant frankly acknowledged, she felt that she had to stay in order to avoid any problems. So she did. She did not even, at any point, exit the ambulance to look around. Although she had no sense of actual timeframes, from PC Shi's evidence she must have remained inside that ambulance, waiting, for at least 45 minutes after he left.
40When PC Shi returned, he placed her under arrest and advised her of her rights to counsel. She requested to speak with a lawyer.
Legal Framework and Application to the Facts
41In the seminal case of R. v. Grant, 2009 SCC 32, the Supreme Court summarized the applicable law at para. 44:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintain general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics of circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
42The evidence on this application was that of the Defendant and of PC Shi. I accepted the Defendant's testimony as both true and accurate. Indeed, it did not materially differ from the testimony of PC Shi. I accepted that she did not feel she was free to leave that ambulance once PC Shi left, and I find that this was a reasonable conclusion in all the circumstances including her own perspectives and experiences. Specifically, I have concluded she was psychologically detained based on all the voir dire evidence from both her and PC Shi and have found these to be facts:
- The Defendant was told, by the paramedics, that she was medically cleared before they left the ambulance. She knew that there was no medical reason to continue to keep her in the ambulance;
- The Defendant was told, by the paramedics, that police would be coming in to speak with her and perceived that she was to remain in the ambulance for that purpose;
- When PC Shi entered the ambulance, he was polite and professional with the Defendant, and did not place her in any form of physical restraint such as handcuffs;
- PC Shi's questions included asking the Defendant about the ownership of the car, about where she was that night, and about whether she had been drinking alcohol;
- PC Shi's questions were, at least in part, directed to investigating whether the Defendant herself had been driving her car at the time of the accident and, given the smell of alcohol he detected, whether she had been driving while impaired by alcohol;
- While PC Shi was polite and professional throughout, the Defendant perceived him as an authority figure whose directions had to be obeyed;
- The Defendant's belief in this regard was informed by her perceptions as a young woman from a racialized background;
- PC Shi, at the time he left the ambulance, did not seriously believe the Defendant's story about a stolen car but was investigating the theory that the Defendant had been driving her car while impaired and crashed it;
- At no point during his fifteen minute conversation with the Defendant did PC Shi advise her that he was investigating her criminally;
- When PC Shi left the ambulance, he stated "I'll be back" or "I'll be right back", which the Defendant reasonably interpreted to mean she was to stay inside the ambulance until he came back to deal with her;
- At no point during their initial conversation did PC Shi tell the Defendant she was free to leave, including at the point where he left and said he would be back;
- At no point prior to leaving and saying he would be back, did PC Shi provide the Defendant with information about her rights to counsel or her right to silence;
- The ambulance was a closed, confined space and the Defendant was, for the next 45 minutes or so, isolated inside save and except for a paramedic that briefly stepped in.
43Considering all of these factors, I find the Defendant was psychologically detained when PC Shi left the ambulance and directed her to stay inside by saying "I'll be back". She was deprived of the right to make a meaningful choice to simply walk away. This detention kept her available to PC Shi, once his investigation had resulted in the requisite grounds to place her under arrest.
44This is not to say that PC Shi was deceiving her, or playing games with her constitutional rights, or deliberately misleading her. He was doing none of these things. The fact remains, however, that at this juncture, the Defendant's physical liberty interest and her security of the person interest were impacted by state action.
45I find a reasonable person, in the Defendant's circumstances and with her perspectives, would have felt deprived of her right to choose whether or not to leave the ambulance. Accordingly, at this point the Defendant was entitled to information about her constitutional protections and to be informed she was being investigated criminally.
46I cannot call the Defendant's detention arbitrary in the sense of being random or unsupported. She was the target of PC Shi's continued investigation for a legitimate reason. He had an objectively reasonable basis to continue investigating into whether she had driven while impaired by alcohol. But in accordance with R. v. Suberu, 2009 SCC 33, the Defendant's right to counsel arose "immediately" upon detention. Once PC Shi's words effectively directed the Defendant to stay inside the ambulance, he was obliged to advise her of her rights to counsel and to provide her with the reasonable opportunity to implement that right. He was also obliged to inform her of the reasons for her detention.
47PC Shi did not comply with his constitutional obligations to the Defendant. On this evidentiary record, there is no good reason why the Defendant was not informed of the reason she was being detained. There is no good reason why she was not informed of her rights to counsel or afforded the opportunity to implement them. I find s. 10(b), as well as s. 10(a), were breached.
Should the Breach be Remedied by Exclusion of Evidence?
48The remedy I am imposing is to exclude the evidence pursuant to s. 24(2) of the Charter. Grant governed my analysis here. The test is whether or not admission of evidence would bring the administration of justice into disrepute. Three categories inform this analysis:
- Seriousness of the Charter-infringing State Conduct
- Impact on the Charter-protected Interests of the Accused
- Society's Interest in an Adjudication on the Merits
49Despite my conclusion that the Charter breach was not wilful, I still find it was very serious. The Defendant was deprived of information about her rights to counsel, which could have assisted her in understanding whether to continue to co-operate or not. She sat inside that ambulance for 45 minutes, which was certainly ample time for her to obtain legal advice to guide her decisions. Because of the lack of information provided about her constitutional rights, she did not appreciate this and was left to make important decisions in a vacuum.
50There was no reason that justified or explained not telling the Defendant about her right to retain and instruct counsel. The circumstances were not urgent. This was not novel law. Clearly PC Shi did not provide the Defendant with her rights to counsel upon detention because he simply did not turn his mind to it. In these circumstances, especially given that he knew he was investigating her criminally, he should have.
51I find the s. 10(b) Charter breach occurred as the result of a reckless disregard for the Defendant's constitutional rights, and that in turn elevates the seriousness of the breach: see Grant at paras. 74 and 75. Assessing the breach as serious tends in favour of evidence exclusion.
52I also find the impact of the Charter breach, on the Defendant's constitutionally-protected interests, was significant. More than one Charter right was affected here. The Defendant's physical liberty interest was impacted. The Defendant's security of the person interest was impacted. She was deprived of information about why she was being detained, contrary to s. 10(a) of the Charter. The Defendant felt compelled to remain inside the ambulance, essentially available for arrest and breath testing if PC Shi's investigation bore fruit.
53I have considered the recent Court of Appeal decision of R. v. Jennings, 2018 ONCA 260 in assessing the impact of the Charter breach. I find the Defendant's case materially differs from Jennings. I appreciate the minimal physical intrusiveness of taking a breath sample. But in the case at bar, the Defendant was not just required to provide samples of her breath at the police station. She felt compelled to remain on the accident scene, without legal advice, until PC Shi's investigation gave him grounds to make a breath demand. During those 45 minutes she had time to obtain proper legal advice to help her make informed decisions about her situation. Those decisions could have included, even, asking PC Shi if she was free to physically leave or for a justification of her detention if she was not.
54I cannot call the deprivation of constitutionally-protected information as having had little impact here. Assessing the impact of the breach as significant tends in favour of excluding the evidence.
55The final factor, society's interest in adjudication of this trial on its merits, weighs in favour of admitting the breath test results. This is reliable evidence of a serious offence. Impaired driving on its face is to be taken seriously, and in the case at bar, the outcome could have been tragic if someone was inside that parked car. The public interest in truth-finding is compelling on these facts. I should note, however, that exclusion of the evidence is not fatal to the Crown's case on both charges before the Court. Indeed, the Crown's final submissions advanced a circumstantial case on the charge of Impaired Driving, absent the breath results.
56Balancing all three factors, I have concluded that admitting evidence obtained by the s. 10(b) Charter breach would bring the administration of justice into disrepute. I have, therefore, excluded the evidence pursuant to s. 24(2) of the Charter.
57As a result, I find the Defendant not guilty of the offence of Driving with Over 80 mg of Alcohol in 100 ml of Blood.
Impaired Driving and Identification of the Camry's Driver
58The defence submitted that a reasonable doubt should arise on the issue of identification of the Camry's driver. She submitted, correctly, that Mr. Maloney's testimony presented some reliability problems. His assessment of what time he left the bar was hours off. In his police statement, he said that the Camry driver had a thin to medium build. PC Shi described the defendant, on the night of the accident, as appearing heavy-set. This was consistent with her appearance in the courtroom. It was thus concerning that Mr. Maloney, in his courtroom testimony, modified his description of the female driver as having a heavier build. The Defendant, in cross-examination, took him to the prior inconsistent statement on build, which he then adopted as true.
59I found when it came to details such as time and the driver's build, Mr. Maloney's evidence was unreliable. I was unsure whether this was the result of Maloney's own consumption of alcohol that night. I rejected the in-dock identification as without weight. I could not, however, discount all of his testimony entirely. I did find him very credible. The nature of the two inconsistencies were relevant but not compellingly material. I have thus considered the evidence I accept, from Mr. Maloney, in conjunction with all the evidence and concluded it proves identification beyond a reasonable doubt. From him, I accepted:
- That he was on Dundas Street West when the accident happened;
- That a single occupant was seen, by him, exiting the driver's seat after the accident;
- That Mr. Maloney had a brief verbal exchange with the driver, who he correctly observed to be a black female wearing black clothing;
- That the Camry's driver remained at the accident scene from the time of the crash until, at least, the time that Mr. Maloney saw emergency vehicle lights and left;
- That the Camry's driver did not leave or flee the accident scene while Mr. Maloney was present;
- That the Camry's driver engaged verbally with one of Mr. Maloney's friends;
- That the Camry's driver tried to stop people from taking pictures of the two cars.
60I considered this evidence in combination with the following:
- The Defendant was the registered owner of the Toyota Camry;
- The defendant, while at the "Get Well", acknowledged having driven her car to the bar;
- The defendant was also, while drinking in the bar, seriously contemplating whether or not she should drive home;
- The proximity between the "Get Well" and the scene of the accident, which was only a few blocks away on Dundas Street West;
- The proximity in time between the Defendant leaving the bar the second time and the time of the accident. Although the evidence did not establish specifics of either, I based this on the bartenders' testimony that Ms. Mohamed's friends left at about 12:30 a.m. and that Ms. Mohamed remained there afterwards, drinking water, communicating on her phone, and assuring the bar staff she would not drive. This was added to the testimony that about 20 or 30 minutes after leaving, the Defendant returned to the "Get Well" and stayed for another 5 to 10 minutes. PC Shi received his radio call at 1:53 a.m.;
- The Defendant's presence at the scene of the accident, even leaving aside Mr. Maloney's testimony, within minutes of it occurring;
- The Defendant's presence in the ambulance when PC Shi arrived, which was consistent with having received medical treatment and a factor that makes no sense unless the Defendant identified herself as possibly needing medical treatment after the accident.
61The evidence summarized in paragraphs 59 and 60, considered as a whole, proved beyond a reasonable doubt that the Defendant was driving her own Toyota Camry when it crashed into the parked white hatchback.
62The defendant urges upon me the possibility that someone must have found her lost keys in the bar, stole her car, and crashed it. Even approaching the identification evidence as entirely circumstantial, and then applying the case of R. v. Villaroman, 2016 SCC 33, I respectfully could not accept her submission. In Villaroman, our Supreme Court confirmed that when a case is circumstantial, guilt must be the only rational inference that could be drawn from the evidence as a whole. In this case, there was a host of improbabilities that made such a conclusion irrational.
63For example, after crashing the car, the Camry's driver remained on the scene. Had the car been stolen and then involved in a serious accident, no doubt the thief would have fled the scene of the crime. Instead, the driver actively engaged with both Dylan Maloney and his friend.
64Further, the driver drew more attention to herself by trying to stop people from taking pictures of the two cars. If the car did not belong to the person driving it at the time of the accident, it would not matter if someone took pictures of it or not. It does matter, however, if the car belonged to the person driving it when the accident occurred. There was also a risk that when the female driver tried to stop photographs from being taken, these people could later identify her. Again, if the woman Mr. Maloney saw had no legal rights to the car and had just stolen it, engaging with people trying to take pictures of the car makes no sense.
65The person who stole the car would have had to have been in the same bar as the accused, where the keys were lost, or in the same close proximity as the Defendant when she lost her keys. This is a big coincidence. The person who stole the car would have, coincidentally, been of the same gender, race, and general height as the Defendant and would have to have also been wearing black clothing.
66Having found the keys, and having located where the car that matched those keys was parked, the car thief would have either had to have driven around that same area for perhaps thirty minutes before the accident, or must have coincidentally stolen it moments before the Defendant left the bar a second time. The Defendant would have had to arrive, coincidentally taking the same route as the car thief, at the accident scene moments after Dylan Maloney and his friends left it. The Defendant also would have had to arrive at the accident scene within seconds or minutes of the car thief finally deciding to flee. Stepping back and looking at this scenario as a whole, I cannot describe it as a reasonable hypothetical.
Evidence of the Defendant's Impairment
67I have also concluded it proven, beyond a reasonable doubt, that the Defendant's ability to operate a motor vehicle was impaired at the time she was driving. Although I have excluded the breath test results, breath readings are not a requirement to prove impaired driving: R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.). The elements of this offence are made out by proof, beyond a reasonable doubt, of any degree of impairment ranging from slight to great: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.).
68The credibility and reliability of the two bartenders was not seriously challenged. I found both witnesses credible and reliable. They had no investment in the outcome of this case. Indeed, both of them were acknowledging over-serving the Defendant by failing to keep track of how much alcohol she was served in total. Mr. Thomas-Mitchell, in particular, I found very credible. He did not exaggerate and appeared to have no bias in favour of either side. Where his memory had gaps, he was frank about that and about his inability to recall some details even after refreshing his memory from his statement.
69In addition, Ms. Mohamed's alcohol consumption was brought to the bartenders' attention by her own friends. Cutting the Defendant's service off, and interacting in the hope of persuading her not to drive, would have focused their attention specifically on how much she had to drink and set her apart from other patrons.
70The bartenders' testimony established that the Defendant was drinking in their bar between 10:00 or 11:00 p.m. when she arrived, and 12:30 p.m. when she was cut off. During that short timeframe, she was served three gin and tonics, one shot of tequila, between two to three beers, and another one to two shots of liquor. This means the Defendant consumed seven to nine drinks over 1 ½ to 2½ hours. The effect of alcohol on the defendant was extensive enough that she, within a short time of having paid her tab, forgot she had paid it and returned to the bar for her debit card.
71Both bartenders characterized the Defendant as being drunk or "very drunk" proximate to the time of the accident. Their work frequently involved observing the effect of alcohol on people they were serving. They were trained in determining if a person had over-consumed alcohol. I am permitted, pursuant to R. v. Graat, [1982] 2 S.C.R. 819, to take their opinion into account and I have done so.
72The nature of the car accident was also a strong indicator of some impairment. This was not a fender bender or something attributable to momentary inattention. The Defendant hit a car that was parked, in a lane used for parking and not driving. In other words, she was driving at least partially in the parking lane, or swerved at high speed into it. PC Shi concluded, and this is not a stretch by any means of the imagination, that the Camry must have been driving at an excessive speed. The Camry hit the parked car so hard it tipped right over, landing on its own roof. I accept PC Shi's evidence on this point. I also observe that the Defendant is very lucky she was not hurt. She is also extremely lucky that there was no one sitting in that parked car.
73I appreciate that when PC Shi dealt with the Defendant, she exhibited very little outwards signs of intoxication. Her speech was fine. Her gait was fine. Her appearance was fine. There was only a strong odour of alcohol coming from her breath. However, as Dr. Meyers explained, the absence of physical signs of intoxication does not prove the person's ability to perform complex tasks must not be impaired. It did not raise a reasonable doubt for me, in light of his evidence, the testimony about how much she drank at the bar in a short timeframe, and the nature of the car accident.
74Accordingly, I have found the Defendant guilty of the offence of Impaired Driving.
Released: April 10, 2018
Signed: Justice H. Pringle