Court File and Parties

Court File No.: CR-17-228-00 Date: 2019-03-04 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Noah Poisson, Defendant

Counsel: Sarah Tarcza, for the Crown Leo A. Kinahan, for the Defendant

Heard: January 14, 16, 17, 18, 21, 22, 23, 24, and February 4, 5, 8, and 12, 2019

Reasons for Judgment Delivered Orally

Judge: de Sa J.

Overview

[1] The accused, Noah Poisson, is charged with 3 counts on the indictment. The Crown alleges that Noah Poisson operated a vehicle with excess blood alcohol (Count 2). The Crown also alleges that Noah Poisson operated a motor vehicle while his ability to drive was impaired thereby causing the death of Parker Pautsch (Count 3). Finally, the Crown alleges that Noah Poisson operated a motor vehicle in a manner dangerous to the public thereby causing the death of Parker Pautsch (Count 1).

[2] The three counts relate to the same incident, an accident which occurred on August 15, 2016.

[3] Mr. Poisson’s trial proceeded before me for approximately 3 weeks in January/February. At the conclusion of the trial, I reserved my decision.

[4] This is my judgment and the reasons for my decision.

Summary of Facts

The Accident

[5] On August 15, 2016, members of the Ontario Provincial Police (“OPP”) responded to a 911 call for a fatal motor vehicle collision. While travelling southbound on Line 13 North in the Township of Oro-Medonte, a Dodge Ram pick-up truck veered off the road towards the right, travelling about 107 metres off the road before hitting an embankment on the edge of a creek. Parker Pautsch was ejected from the vehicle. The vehicle rolled over onto its roof, landing on top of Parker. Parker died at the scene.

[6] Jason Mawdsley was staying in a trailer across from the collision scene. Between 10:00 p.m. and 10:55 p.m., he heard the crash and immediately attended the scene to assist.

[7] He could see a vehicle in the ditch. The only light was coming from the vehicle. He observed another vehicle approaching and realized it was the neighbour, Mr. Quinn.

[8] As he arrived at the location, he observed that a pick-up truck was overturned with its lights still facing the road. Mr. Mawdsley observed the accused calling out for someone. The accused identified himself as Noah. Noah asked Mr. Mawdsley to assist with looking for his friend.

[9] Mr. Mawdsley testified that as he got closer to Noah, he could smell a strong odour of alcohol on him. He observed some blood on his forehead, and noticed that he was missing a boot. He also had a rip in his shirt. It was apparent that Noah had been in the vehicle.

[10] After observing the situation, Mr. Mawdsley said he would call 911 for help. Noah urged Mr. Mawdsley not to call 911. According to Mr. Mawdsley, the accused had clearly been drinking. Mr. Mawdsley called 911 and told them the circumstances. He confirmed the accused’s age (19), and identified their location. Mr. Mawdsley asked Mr. Quinn to keep Noah at the side of the road as he went to look for the missing person.

Robert Quinn

[11] Robert Quinn, a neighbour, also heard the crash and attended the scene immediately. When Mr. Quinn first arrived at the scene, he observed the accused coming up from the driver side of the vehicle.

[12] According to Mr. Quinn, Noah was very concerned about his friend Parker. He was agitated that he could not find Parker. Mr. Quinn knew Parker from the area.

[13] Mr. Quinn was not with Noah for very long. He did not notice any signs of impairment nor did he smell the odour of alcohol on Noah. Noah was not slurring and seemed coherent. Mr. Quinn did overhear Noah say that he had a couple of beers.

Firefighters and EMS Arrive

Dietra Miron

[14] Ms. Dietra Miron arrived at the location at 23:08 with another EMS worker. They were the first emergency vehicle on scene. She spoke to two males, Noah and Mr. Mawdsley. Noah had some blood on his face. She determined he was an occupant of the vehicle. He had a small cut on his lip and hurt his nose. He said his lip was sore.

[15] Noah could not recall how he got out of the vehicle. He said he needed help finding his friend. He thought he may have run away. When she asked how many occupants were in the vehicle, Noah first said that there were two other people. He hesitated and then acknowledged there was only himself and a passenger.

[16] Noah told Ms. Miron he had been drinking alcohol. She told Noah to wait on the embankment as she searched for the missing person.

Mark Jermey

[17] Mark Jermey has been a member of the Oro Fire Department since 2005. When he arrived on scene, Murray Langman (another fire official) asked him to stay with Mr. Poisson at the ambulance. Mr. Jermey was standing at the back of the ambulance and the accused was sitting inside.

[18] According to Mr. Jermey, the accused was conversant and did not have problems understanding him. According to Mr. Jermey, the accused clearly smelled of alcohol. The accused said they were at a party and had to leave.

[19] According to Mr. Jermey, the accused said that he did not normally drink and drive. He believed he overheard the accused say his name was Malcolm.

Statements in the Ambulance

[20] Hugh Dunlop and his partner Graham Coulter arrived at the accident scene at 23:20. Mr. Dunlop assisted Noah from the first ambulance to their emergency vehicle. According to Mr. Dunlop, Noah seemed alert. No trauma. No clear head injuries. Minor scratches and rib pain. There was a laceration on his shin and scratches on his lower abdomen. Mr. Dunlop did not notice the smell of alcohol.

[21] Between 23:21 and 23:45 Mr. Dunlop and Mr. Coulter remained with Noah on scene. Despite Mr. Dunlop’s encouragement to go to the hospital, Noah refused to leave. He wanted to know what happened to his friend.

[22] Noah mentioned he was coming from a party. Noah could not remember how he got in the accident, or how he got out of the vehicle. He acknowledged he had been drinking. He mentioned that he had a couple of twisted teas.

[23] Mr. Coulter made notes of the utterances made by Noah while he was in the vehicle. According to Mr. Coulter, Noah stated that neither he nor the passenger were wearing their seatbelts. He was not sure if the passenger was ejected. Noah told the passenger (Parker) to put his belt on but the passenger said he did not need it.

PC Vlasic and PC Emmerson-Stringer

[24] PC Anita Vlasic and PC Anne Emmerson-Stringer from the OPP arrived on scene a short time after EMS. PC Vlasic’s notes indicate that she arrived at 23:27.

[25] Soon after arriving, she spoke to Mr. Mawdsley regarding the events. She made observations of Noah at the scene, and did not observe any signs of impairment. Even when she and PC Emmerson-Stringer were close to him in the ambulance, they could not detect any odour of alcohol. Noah seemed “jacked up” and incessantly focussed on the whereabouts of his friend.

[26] PC Emmerson-Stringer testified that the accused was able to converse but kept repeating that he had to find Parker. She asked Noah if he had been drinking and he stated that he had had six beers. She did not ask Noah at what point during the evening he had the beers.

[27] When PC Vlasic attended the Orillia Soldier’s Memorial Hospital at about 1:40 a.m. to check on Noah, she was told that the injuries were not life threatening. She went to see Noah. There were no seatbelt marks on his chest.

[28] Noah was still focussed on the whereabouts of his friend. He uttered to PC Vlasic that he must have dropped Parker off. It was apparent to PC Vlasic that this made no sense as they had already discovered Parker under the vehicle by this time.

Events Preceding the Accident

Jason Buker

[29] Jason Buker was called as a witness for the Crown. He communicated with Noah on August 15, 2016 prior to the accident.

[30] Noah had some Dodge Ram wheel flares listed for sale on Facebook. Mr. Buker had messaged Noah in the early afternoon indicating he wanted to purchase them. Noah agreed to meet with him in Gravenhurst to sell the flares. They arranged to meet at the Tim Hortons at Talisman Drive at 8:30 p.m.

[31] Noah arrived at about 8:40 p.m. in his Dodge Ram. Parker exited the passenger side of the vehicle with a drink in his hand. As they were in the parking lot, Parker continued to get “spiked” tea drinks from the passenger side of the vehicle. According to Mr. Buker, Parker had clearly been drinking and was intoxicated.

[32] They were just hanging out and talking about some girls that had pulled up. They hung out for some time. Mr. Buker recalled that Noah also had a “spiked tea” in his hand as they were talking.

[33] Noah showed Mr. Buker the wheel flares in the back of the truck. In the back, Mr. Buker noticed a number of empty alcohol cans and bottles.

[34] When Mr. Buker texted his girlfriend at 9:29 p.m., they were still hanging out.

[35] As Noah left, he drove away with Parker in the passenger seat of the truck. Noah accelerated around the corner towards the highway at an excessive speed.

[36] According to Mr. Buker, Parker was clearly drunk. While he observed Noah have a drink, he could not say if Noah was impaired.

Martin Cunningham

[37] Martin knew Noah through friends. He would see Noah from time to time.

[38] He saw Noah at his house in Orillia on the evening of August 15, 2016. Noah and Parker showed up at the house around 10:00 p.m. At the time, Martin was intoxicated himself. Martin had consumed one-half of a 26 ounce bottle of Whisky and he was heading to a bar that evening.

[39] They hung around at the front of the house for a short while. Martin recalls that when they were at the house, Parker was trying to climb the neighbour’s tree and was clearly drunk.

[40] As they were leaving, Noah mentioned that he was going to take Parker home. As they left, Noah got into the driver’s side of the vehicle and Parker got into the passenger side of the vehicle.

Blood Samples taken from the Accused

Rachel Anderson

[41] Rachel Anderson was the technologist who collected Noah’s blood on the evening in question. She was working as a technologist at Orillia Stevenson Memorial Hospital. On the evening in question (August 15, 2016), she was working at the hospital on a shift from 7:00 p.m. to 7:00 a.m.

[42] According to Ms. Anderson, there are always two technologists working in the lab at any time. That night, she was covering chemistry and phlebotomy and her colleague was covering transfusion and hematology.

[43] Noah’s blood samples and urine sample were ordered by the emergency doctor at 12:16 a.m. She was provided with the name and location of the patient (Noah Poisson). She went to collect the sample with the printed label in hand. She attended the location, and confirmed Noah’s identification before taking the sample. Once his identification was confirmed, she began to take the samples.

[44] She drew four vials of blood with a butterfly syringe. She labelled each tube with the patient’s name/printed labels and initialed them. Her notes indicate that the blood was taken at 12:30 a.m.

[45] After taking the blood, she took the samples back to the lab for analysis. Ms. Anderson testified that she maintained control of the samples until she returned to the lab to conduct the analysis. She placed them into the centrifuge to spin, and then submitted the samples for analysis. The tests showed on her screen.

[46] As part of her normal practice, she would have checked to see if there was anything critical that required immediate attention. She confirmed that the analysis showing on the screen matched the subject’s sample, and then she accepted the results. The results were then released to the patient’s file.

[47] The analysis revealed that Noah Poisson had a blood alcohol level of 34.4 mmol/L. Also, a cocaine screen of the accused’s urine tested positive.

[48] The vials were resealed and placed on the daily rack. At midnight, they would have been placed in the fridge as part of the normal routine. The blood is normally kept for four days.

[49] According to Ms. Anderson, only lab technicians would be around the blood. There would always be a lab technician in the lab. While cleaning staff were permitted entry, they would not be permitted to access the samples.

Ron Spiker

[50] Ron Spiker was also working at Orillia Soldiers Memorial Hospital at the time of the events. He was working on August 18, 2016 when the police came to seal Noah Poisson’s blood.

[51] The samples had been set aside in the fridge. Noah’s samples were marked by one of the lab technicians with “save for police” to make the samples easier to identify.

[52] When Officer Van Allen arrived, Mr. Spiker brought the samples out from the fridge and gave them to Officer Van Allen to seal.

Officer Van Allen

[53] Officer Van Allen had been tasked to affix forensic seals on the blood of Noah Poisson. She attended the hospital on August 18, 2016. At 2:07 p.m., she spoke with Ron Spiker and asked to seal the blood.

[54] Mr. Spiker retrieved the samples of Noah Poisson from the fridge and gave them to her. Officer Van Allen affixed forensic seals on them: 1) 2774864 (urine); 2) 2774865 (purple cap); 3) 2774866 (green cap); 4) 2774867 (blue cap). The samples were all placed in a single exhibit bag and marked as 2774868.

Officer Martel

[55] On August 18, 2016, Officer Majid obtained the warrant to seize the blood and medical records. After Officer Majid obtained the blood, Officer Martel, who was in charge of the case, examined the vials. He realized that Officer Van Allen’s notes had made the “T” look like a “7”. He had Officer Majid correct the warrant to correspond to the actual numbers on the samples.

[56] After the warrant was revised, the samples were taken back to the division and Officer Martel placed them in the Vault. He took them down to the Centre for Forensic Sciences (“CFS”) himself on the Monday for submission/testing.

Results of the Blood Tests and Evidence of Toxicologist

[57] Inger Bugyra was the toxicologist called by the Crown. Her C.V. was filed as an exhibit on the proceeding. She has been working in toxicology at the Centre for Forensic Sciences for 20 years.

[58] She was qualified to provide opinion evidence on various areas of blood analysis including: ingestion; absorption; distribution; elimination; calculation of blood alcohol concentration; analysis of bodily fluids to determine the presence and concentration of alcohol; interpretation of medical records/alcohol; and the effects of alcohol on the human body with respect to operation of a motor vehicle.

[59] From a review of her C.V., her qualifications and expertise are evident. There was no issue taken with respect to her qualifications to testify with respect to the issues above.

[60] Officer Martel had submitted Noah’s blood for analysis to the Centre of Forensic Sciences. Ms. Bugyra checked the vials to confirm they matched the submission form. She verified that the seals were intact. She received three evidence items for testing:

1. Urine Sample – 2T74864
2. Blood Sample – 2T74866
3. Blood Sample – 2T74867

[61] She conducted the analysis on 2T74867. The analysis revealed the ethanol content of 129 mg of alcohol in 100 ml of Noah’s blood on the evening in question. There was no indication of cocaine in the blood. There was Benzoylecgonine which was the metabolized form of cocaine. However, this could not cause impairment.

[62] Based on the results of the analysis, the projected BAC at or between approximately 10:45 p.m. and 11:00 pm, was determined to be 129 to 164 milligrams of alcohol in 100 millilitres of blood.

[63] A serum alcohol concentration 34.4 mmol/L is equivalent to a blood alcohol concentration (BAC) of 136 milligrams of alcohol in 100 millilitres of blood.

[64] Based on the results of the hospital analysis, the projected BAC at or between approximately 10:45 p.m. and 11:00 p.m. was determined to be 136 to 171 milligrams of alcohol in 100 millilitres of blood.

[65] The hospital testing was done on the serum only which would explain the slight variation in the results. The ethanol concentration changes slightly depending on the water content in the matrix. Ms. Bugyra testified that the samples results (hospital and CFS results) were in good agreement (within 10%).

[66] The calculations were based on the following assumptions: 1) a rate of elimination of blood for the alcohol of 10/20 mg per hour; 2) allowance for a plateau of up to two hours; 3) no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident; 4) no consumption of alcoholic beverages after the incident and before the blood was collected.

[67] Ms. Bugyra’s explained that to operate a motor vehicle, a driver needs both cognitive abilities and motor coordination. A driver must be able to do simultaneous tasks. Information must be received, processed, a decision must be made and an action performed. A driver must be able to judge speed and distance simultaneously.

[68] Alcohol is a central nervous system depressant, and it decreases a person’s brain function and it does so in a concentration dependent manner. The greater the blood alcohol concentration, the greater the effects the alcohol will have on the person’s cognitive abilities and motor coordination. Alcohol consumption can also cause tunnel vision.

[69] Ms. Bugyra testified that in her opinion, impairment with respect to driving will occur at a blood alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood. Even though this amount would not exceed the “legal limit”, in Ms. Bugyra’s view, one would be scientifically impaired in their ability to operate a vehicle. Accordingly, the levels in this case were well beyond the amount required to cause impairment.

[70] Observable signs of impairment are staggering gate, slurred speech and body sway. The extent to which observable signs are present is dependent on the actual blood alcohol concentration achieved and the difficulty of the task that the person is performing as well as the tolerance to the effects of alcohol.

[71] With a seasoned drinker, the effects of alcohol may not be observable. Motor coordination can be controlled by a seasoned drinker. However, cognitive functions (memory, judgment) will still be impaired. While a more seasoned drinker may not show visible signs, the judgment and reasoning can still be affected. According to Ms. Bugyra, the absence of visible signs of impairment does not change that fact that a seasoned drinker will be impaired at these levels when it comes to driving.

[72] In this case, the cocaine would not have been impairing. It may have been in the urine but it was not in the blood. Blood is a snapshot in time. Urine shows consumption over a longer period.

Investigation at the Scene and Collision Reconstruction

[73] Investigating officers noted that Line 13 North, Oro-Medonte, was straight, level and dry in the area of the collision.

[74] An examination of the scene revealed that the vehicle veered gradually from the roadway onto and through the grass shoulder and ditch area.

[75] The Dodge left the roadway and travelled through the ditch parallel to the roadway for 107.15 metres. The vehicle was leaning at an angle of approximately 31 degrees to its right as it went by the bridge.

[76] The Dodge then went airborne over the creek for 6.37 metres and struck the opposite bank. It rolled over for 13.4 metres and came to rest upside down.

[77] Parker Pautsch was ejected and the Dodge landed on top of him.

[78] The speed of the vehicle at the time it was rolling over was calculated to a range between approximately 42-57 km/h with an 85% probability of approximately 44-55 km/h.

[79] There was insufficient information to calculate an airborne speed to corroborate the speed loss from rollover.

[80] Inspection of the seats of the vehicle suggested that the driver had his seatbelt on and the passenger did not. The driver’s seatbelt was partially extended and there were loading marks on the seatbelt fabric from approximately 1.0-2.0 metres from the seatbelt anchor. The passenger seat belt had no loading marks and was found in the retracted position.

[81] Both the driver and passenger air bags deployed as a result of the collision. There was some tissue and fluid on the passenger side air bag. The blood taken from the driver’s side airbag matched the DNA profile for Noah. The probability that a randomly selected individual unrelated to the person in question would coincidentally share the observed DNA profile is 1 in 10 quadrillion.

[82] The driver’s seat was positioned .155 metres from the start of the rail to the seat close to the steering wheel and it was secure on the track. The passenger seat was positioned .6 from the start of the rail to the seat close to the rear of the cab, and it was secure on the track. The seat position suggested that a taller person would be sitting in the passenger’s seat. Parker was known to be substantially taller than Noah.

Analysis

[83] The accused, Noah Poisson, is charged with the following offences:

(a) Count 1: On or about August 15, 2016, he did operate a motor vehicle on a road in a manner that was dangerous to the public and thereby caused death to Parker Pautsch, contrary to the Criminal Code of Canada.

(b) Count 2: On or about August 15, 2016, he did operate a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, thereby causing an accident which resulted in the death of Parker Pautsch, contrary to the Criminal Code of Canada.

(c) Count 3: On or about August 15, 2016, while his ability to operate a motor vehicle was impaired by alcohol and drug, he did operate a motor vehicle and did thereby cause the death of Parker Pautsch, contrary to the Criminal Code of Canada.

Crown’s Application to Amend Indictment at the Close of the Evidence

[84] At the close of the evidence, the Crown applied to amend Count 3 on the indictment to conform to the evidence and to remove the reference to drug. The evidence of the expert confirmed that there was no cocaine or other drug that was active in the accused’s blood at the time of the accident.

[85] The defence opposed the amendment. The defence took the position that since the Crown had particularized the indictment to reference “alcohol and drug”, the Crown was required to establish both. According to the defence, a failure to prove that the accused was impaired by a combination of both should result in an acquittal. The defence argued that an amendment this late in the proceeding, at the close of the defence evidence, was unduly prejudicial. In support of its position, the defence relied on R. v. Saunders, [1990] 1 SCR 1020.

[86] I disagreed with the position advanced by the defence and granted the amendment with reasons to follow. These are the reasons for my decision.

Reasons for Decision to Grant the Amendment of the Indictment

[87] Broad powers of amendment at trial serves two important goals. First, they promote the determination of criminal cases on their merits. Second, wide powers of amendment avoid a multiplicity of proceedings. As Justice Doherty explained in R. v. Irwin, 1998 ONCA 2957 at para. 11:

Broad powers of amendment expand the scope of the special pleas and avoid multiple trials arising out of a single event or transaction. By combining broad powers of amendment with an expanded availability of the special pleas, the criminal law declares a preference for results based on the merits and arrived at in a single trial where pleadings problems are fixed and not allowed to derail the proceedings: see R. v. Moore, [1988] 1 S.C.R. 1097 at pp. 1128-31, 41 C.C.C. (3d) 289 at pp. 311-13.

[88] The amendment powers in the Criminal Code are broad and designed to facilitate adjudication on the merits and avoid results predicated on deficiencies in the charging documents. The amendment provisions in the Criminal Code even permit for a substitution of the charge provided that the amendment does not fundamentally alter the nature of the allegation.

[89] The focus is on substance, rather than form. The real question is prejudice as it pertains to the accused’s understanding of the case to be met. As explained in Irwin, supra, at paras. 25-26:

On a plain reading, the section contemplates any amendment which makes a charge conform to the evidence. The limits on that amending power are found, not in the nature of the change made to the charge by the amendment, but in the effect of the amendment on the proceedings, and particularly, on the accused's ability to meet the charge. The ultimate question is not what does the amendment do to the charge, but what effect does the amendment have on the accused?

… If the accused is prejudiced, the amendment cannot be made regardless of what it does to the charge. If no prejudice will result from the change, why should it matter how the change to the charge is described? [Emphasis added]

[90] Obviously, an amendment made during the course of the trial which changes the factual focus of the inquiry to a different transaction will cause prejudice to the accused. The accused has the right to know the allegations and the case to be met.

[91] In this case, however, granting the amendment sought does not change the nature of the allegations or the focus of the charge. It was always understood that the Crown allegation pertained to impairment by alcohol and/or drug leading to the death of Parker Pautsch on the evening of August 15, 2016.

[92] The removal of the reference to “drug” in the indictment does not materially change the nature of the allegation, nor does it change the substance of the offence, namely: impairment.

[93] The Crown is not required to prove impairment by both alcohol and drug. It would be sufficient to prove impairment by alcohol or drug, or a combination of both. See also R. v. Reinhert, [2011] S.J. No. 441 (Sask Prov Ct.).

[94] Notably, section 253(1)(a) of the Criminal Code specifically provides that one is culpable if impaired either by alcohol, or drugs. Section 253(2) explains that the reference to impairment by alcohol or a drug includes impairment by a combination of alcohol and a drug.

[95] No doubt, in a specific case a reference to “drug” in the indictment may be sufficient to constitute a material particular necessary for the Crown to prove. See R. v. Saunders, supra. However, that is not the case here.

[96] In my view, the accused’s reliance on the case of R. v. Saunders, [1990] 1 SCR 1020 in this regard is misplaced.

[97] In Saunders, the accused was charged with conspiracy to import heroin into Canada. In the course of the trial the Crown was permitted to lead evidence of the importation of cocaine. On this basis the accused took the stand and testified that while he had been involved in conspiracies to import other drugs, he had not been involved in a conspiracy to import heroin.

[98] In his charge, the trial judge told the jury that the accused could be convicted in the absence of proof that they conspired to import heroin, so long as the jury were satisfied that they had conspired to import a narcotic of any kind. The jury convicted the accused. In directing a new trial, the Supreme Court explained:

The Crown chose to particularize the offence in this case as a conspiracy to import heroin. Having done so, it was obliged to prove the offence thus particularized. To permit the Crown to prove some other offence characterized by different particulars would be to undermine the purpose of providing particulars, which is to permit "the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial": R. v. Côté, [1978] 1 S.C.R. 8, at p. 13. [Emphasis added]

[99] In Saunders, the allegation was clearly directed at the importation of heroin. The accused acknowledged that he trafficked in other drugs as part of his defence. To not require the Crown to prove the specific drug particularized in the indictment in those circumstances changed the entire focus of case. Given the accused’s choice to testify admitting the importation of other drugs, the prejudice caused by the trial judge’s charge was evident. In such a case, the particulars referenced in the indictment (heroin) became significant and had to be proven.

[100] Unlike Saunders, the allegations here always dealt with the accused’s impairment by alcohol as they pertained to the accident on August 15, 2016. Indeed, Count 2 on the Indictment specifically references alcohol alone. The defence was not misled by the nature of the allegations. No doubt, the expert evidence removed any possibility that the cocaine found in his urine had any effect on his driving. However, I fail to see how this would change the case as they pertain to the allegations of impaired driving. See also R. v. B. (G.), [1990] 2 SCR 30.

[101] The nature of the allegations here were well understood. The defences advanced by the accused in this case makes that clear. There was nothing in the way the defence was conducted that would prejudice the accused by granting the amendment. I do not accept counsel’s assertion that the focus may have been different if the indictment did not include a reference to drug.

[102] In my view, to refuse to amend in the circumstances here with a view to permitting the accused escape a trial on the merits would place form over substance and indeed would undermine the administration of justice.

[103] The amending jurisprudence specifically seeks to prevent technical arguments like the one advanced by the defence here to prevail. The focus is on actual prejudice. Would the amendment change the general nature of the allegations faced so as to cause prejudice? In my view, it would not. Accordingly, I granted the Crown’s application to amend and remove the reference to drug in Count 3.

Analysis of the Evidence in relation to the Charges

Continuity of the Blood Samples

[104] Clearly the blood results indicate that the accused’s blood/alcohol concentration exceeded the legal limit at the time of testing. The sample taken had an ethanol content of 129 mg of alcohol in 100 ml of blood. The 34.4 mmol of ethanol in the medical test would be the equivalent of 136mg/100ml.

[105] Based on the results of the hospital sample of 34.4 mmol, the expert projected a BAC of 136 to 171 mg of alcohol in 100 ml of blood at the time of the collision.

[106] From the CFS results, the expert projected BAC of 129 to 164 mg of alcohol in 100 ml of blood at the time of the collision (between 10:45 and 11:00 p.m.).

[107] The defence challenges the blood/alcohol concentration put forward by the Crown on the basis of continuity. The defence takes the position that there is a difference in the times recorded in the nurse’s notes as to the precise time the blood was taken. The nurse’s notes indicate that the lab technician attended between 12:20 a.m. and 12:30 a.m. whereas Ms. Anderson noted that the samples were taken at 12:30 a.m.

[108] The defence also points out that the sample remained in the lab, and the blood could have been accessed by anyone between the time it was taken and the time that Officer Van Allen forensically sealed the blood on August 18, 2016. According to the defence, anyone could have accessed the blood or tampered with it in the intervening period.

[109] The defence also argues that the credibility and reliability of the evidence of both Rachel Anderson and Ron Spiker is highly suspect given that they communicated during the trial despite the presence of a witness exclusion order. According to the defence, I should place no weight on their evidence, and accordingly, the blood results should not be accepted.

[110] I do not accept the challenges raised by the defence. I have no concerns regarding the continuity of the samples in this case.

[111] I find that the difference in time in the nurse’s notes is a function of the more general nature of the nurse’s note taking. In my view, it has no significance to the issue of continuity.

[112] I also find Rachel Anderson to be a credible witness. Nothing about her communication with Mr. Spiker would give me concerns in this regard. The nature of the communications between her and Mr. Spiker were innocent in nature. In my view, their communication would have had no possible effect on her evidence or its reliability.

[113] Ms. Anderson testified that she confirmed the accused’s identity prior to drawing the blood. She then drew the blood and labelled the blood after drawing it (initialled the labels and put the time the sample was taken).

[114] She retained possession of the blood until she went to the lab. She then went to the lab and placed the blood in the centrifuge and ran the blood for testing immediately. When the results came on screen, she verified them, and submitted them. In my view, I see no concern regarding the continuity of the results as disclosed in the medical records.

[115] Rachel Anderson also testified that the blood would have been kept on the rack until midnight at which time it would be placed in the fridge. When police advised the hospital that they would be obtaining a warrant for the blood, the blood was set aside for police. The police attended the hospital and secured the blood. When the warrant was obtained, they seized it, and submitted it to CFS for analysis.

[116] The CFS report confirms that the samples were identified and labelled with the accused’s name and numbered consistent with those secured by Officer Van Allen at the hospital. The CFS blood results were consistent with the results of the testing conducted at the hospital.

[117] Having regard to the evidence tendered by the Crown, I am satisfied that the Crown has established continuity in relation to the samples. I have no doubt that the samples which were tested at the hospital and by CFS were those of Noah Poisson.

Evidence Establishing the Accused was the Driver

[118] The Crown must establish that the accused was the driver of the vehicle beyond a reasonable doubt. The defence takes the position that the Crown has failed to do so.

[119] I disagree with the defence. In my view, the evidence that the accused was the driver of the vehicle in this case is overwhelming. Relevant evidence on this point includes:

1. The accused told EMS (Graham Coulter) that neither he nor the passenger were wearing their seatbelts. He also said to Mr. Coulter that he told the passenger (Parker Pautsch) to put his seatbelt on. This utterance clearly suggests that Noah was driving.
2. The accused told Ms. Miron that there was a passenger that was missing.
3. According to Mr. Buker, Noah left the Tim Hortons after 9:29 with Parker in the passenger’s seat. He arrived in Orillia to meet with Martin Cunningham after 10:00 p.m. that evening. After spending some time with Martin, he mentioned that he was going to take Parker home. Parker was evidently intoxicated, much more so than Noah. Noah left that location driving with Parker in the passenger seat. The accident occurred prior to 11:00 p.m. The timing here clearly suggests that Noah was driving at the time of the accident.
4. Noah told Mr. Jermey that he left a party and that he did not normally drink and drive.
5. When in the hospital, Noah stated to PC Vlasic that he must have dropped Parker off suggesting he was driving.
6. The accused’s blood was located on the driver’s airbag. Noah also had scratches on his face consistent with his blood being located on the driver’s airbag.
7. The seat position was consistent with a shorter person being in the driver’s seat of the vehicle. Noah was significantly shorter than Parker.
8. The vehicle belonged to Noah.
9. At no point during the evening was anyone other than Noah observed to be driving the vehicle.

[120] Having regard to the evidence as a whole, I am satisfied beyond a reasonable doubt that the accused was the driver of the vehicle at the time of the accident.

Evidence of Impairment

1) Blood Alcohol Concentration

[121] Based on the results of the hospital sample, the expert calculated a projected BAC of 136 to 171 mg. of alcohol in 100 ml of blood at the time of the collision.

[122] From the samples tested, she projected BAC of 129 to 164 mg of alcohol in 100 ml of blood at the time of the collision (between 10:45 and 11:00 p.m.).

[123] Inger Bugyra was the toxicologist called by the Crown. Her qualifications were outlined above and not disputed. According to Ms. Bugyra, memory, reasoning and judgment would be affected at this level even if the individual was a seasoned drinker and did not show obvious signs of impairment.

[124] As Ms. Bugyra explained, a driver must be able to do simultaneous tasks. To judge speed and distance. Alcohol consumption tends to affect vision, may cause tunnel vision and make the driver less vigilant.

[125] In her opinion, given these results, a driver with these levels would have clearly been impaired in their ability to drive.

[126] Given the levels, the expert evidence alone is sufficient to establish impairment beyond a reasonable doubt in my view.

[127] There is no rule that prevents a trier of fact from relying on this type of evidence alone to conclude beyond a reasonable doubt that an individual’s ability to operate a motor vehicle is impaired by alcohol: R. v. Phan, 2015 ONSC 2088, R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.), at p. 230, R. v. Laprise (1996), 113 C.C.C. (3d) 87 (Que. C.A.), at pp. 92-93 and R. v. Hoffner (2004), 24 M.V.R. (5th) 280 (Ont. S.C.J.), at para. 66.

[128] However, there are also various other factors that support this conclusion.

2) Nature of the Driving

[129] Line 13 was straight, level and dry in the area of the collision. The vehicle veered gradually from the roadway onto and through the grass shoulder and ditch area.

[130] The Dodge left the roadway and travelled through the ditch parallel to the roadway for 107.15 metres. The Dodge then went airborne over the creek for 6.37 metres and struck the opposite bank. It rolled over for 13.4 metres and came to rest upside down.

[131] While there is some dispute between the experts in terms of whether or not the vehicle damage was caused by hitting the rock after travelling 107.15 metres, this does not affect the basic findings regarding the vehicle leaving the roadway.

[132] There is no evident cause for the vehicle leaving the roadway and driving in the manner that it did.

[133] The nature of the driving points strongly towards impairment.

3) Utterances made by the accused

[134] Noah made various utterances which suggested that he had been drinking. He told EMS attendants that he had been drinking. He commented to Mr. Jermey that he did not usually drink and drive. And Mr. Buker observed him drinking a twisted tea at the Tim Hortons. (I should note that I have not taken the utterances made to PC Emmerson-Stringer into consideration here as there was a dispute regarding its voluntariness.)

[135] While I note that Mr. Mawdsley and Mr. Jermey testified that Noah smelled strongly of alcohol, I cannot place too much weight on these observations as they were contradicted by the observations of others.

[136] The accused had no memory of the events leading up to or surrounding the accident. He also could not remember if he dropped off his friend. He even mentioned to PC Vlasic that he thought he dropped him off. This is also consistent with intoxication, particularly when considered together with his BAC.

[137] The fact that Noah asked Mr. Mawdsley not to call 911 would support that he was afraid to call police because he knew he was impaired.

Bolus Drinking Defence

[138] The defence suggests that the blood/alcohol concentration should be given little or no weight because of the uncertainty about the underlying assumptions.

[139] The expert’s calculations of the blood/alcohol concentration at the relevant time were based on the following assumptions: 1) a rate of elimination of blood for the alcohol of 10/20 mg per hour; 2) allowance for a plateau of up to two hours; 3) no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident; 4) no consumption of alcoholic beverages after the incident and before the blood was collected.

[140] The case of R. v. Paszczenko, 2010 ONCA 615 essentially eliminates the first two points of contention. The jurisprudence has held that the courts can take judicial notice of these two presumptions; 1) namely the rate of elimination of blood for alcohol of 10/20 per hour, and 2) allowance for a plateau of up to two hours.

[141] Accordingly, the main two points of possible contention are the possibility of consumption of alcohol by the accused either just before or after the accident which may have skewed the results.

[142] The accused points to the fact that there were cans of alcohol in the vehicle which would be consistent with recent alcohol consumption. He argues that this gives rise to a reasonable inference that excessive amounts of alcohol were either consumed shortly before or shortly after the accident rendering the reads inaccurate.

[143] Again, I do not accept the argument advanced by the defence. The readings do not simply become questioned because of the theoretical possibility that something unusual or unforeseen (like bolus drinking) occurred. The factual matrix should give rise to concerns with the reliability of the readings in a particular case: See R. v. Paszczenko, supra; See also R. v. Balasingham, 2015 ONSC 4112. R. v. St-Onge Lamoureux, [2012] 3 SCR 187 at para. 95.

[144] In this case, there is no reason to question the levels or the accused’s impairment at the time of the offence. The presence of the cans around the vehicle do not give me pause on the issue of impairment or on the blood/alcohol concentration.

[145] Firstly, various utterances made by Noah are consistent with him drinking during the course of the evening. Nothing would suggest that the accused was drinking after the accident.

[146] In addition, the readings are substantially higher than the legal limit. It is not a close call or a marginal deviation from the acceptable levels.

[147] Finally, the accused’s impairment is evident not only from the blood/alcohol concentration, but also from the circumstances surrounding the accident as noted above.

[148] In my view, the evidence taken together eliminates any possibility that the accused was not impaired at the time of the accident.

[149] Having considered the evidence as a whole, I have no doubt that the accused was impaired by alcohol [^1], and that the impairment materially contributed to the accused’s ability to operate the vehicle, and to the accident. I also have no doubt that the blood alcohol concentration exceeded 80 mg/100 ml of blood.

Question of Causation

[150] The defence also advances the position that even if I found the accused to be impaired, and that the impairment caused the accident, the Crown still failed to establish that the impairment was the cause of Parker’s death. According to the defence, the fact that the passenger, Parker Pautsch, failed to wear his seatbelt was the actual cause of his death.

[151] The defence takes the position that if Parker had been wearing his seatbelt, he would not have died. Accordingly, the defence argues that the accused should not be found guilty of impaired driving causing death, but only the lesser included offence of impaired driving. In support of his position, the defence purports to rely on the analysis of Justice Trotter in R. v. Phan, [2015] O.J. No. 1627 (OCJ).

[152] I do not accept the position advanced by the defence. I also do not agree that the case of Phan supports the defence position. Justice Trotter’s analysis focusses on the cases where the impaired driving was not a contributing factor to the death. In other words, the ensuing death cannot be associated to the impairment in any way. As Justice Trotter explained at paras. 73 and 77:

While factual causation seeks to determine what brought about an event or consequence in the physical world, legal causation focuses on whether the conduct that gave rise to that result is blameworthy. Again, the Crown is not required to prove that Mr. Phan was the only cause of Ms. Williams’ death. The question is whether Mr. Phan was blameworthy in Ms. Williams’ death, i.e. whether he was a significant contributing cause of her death: see Stuart, supra, at p. 157.

One way of approaching this question is to ask whether the collision that killed Ms. Williams was avoidable. There are numerous decisions in which courts have concluded that, but for a person’s impairment, a collision that results in death or bodily harm was avoidable: see, for example, R. v. Hall (2004), 11 M.V.R. (5th) 188 (Ont. S.C.J.). In other circumstances, judges have found that there is no legal causation when an impaired driver is in an unavoidable collision. That is because the impairment is not a factor in bringing about the prohibited consequence(s). These cases sometimes involve pedestrians who act unpredictably or place themselves in harm’s way. Whether legal causation is established turns on the facts of each case. See also R. v. Marbus (1963), 39 C.R. 201 (Ont. C.A.). [Emphasis added]

[153] If the impairment is not connected or has no bearing on the accident, the Crown will have failed to establish causation. However, if the impairment has bearing on the accident and the death/injury flowed from the accident, then the impairment will be a contributing factor so as to establish causation. [^2]

[154] In this case, given that the accident itself was caused by the impairment, and the death was clearly related to the accident, causation has been established. The defence’s attempt to attribute liability on the passenger because he did not put on his seatbelt is misconceived. These are exactly the types of risks that should be understood to be in play when one makes the choice to drive while impaired.

Dangerous Driving

[155] The defence also takes the position that there is no evidence of dangerous driving. According to the defence, there is nothing to indicate that the nature of the driving itself which led to the accident was dangerous.

[156] I agree with the defence that dangerous driving and impaired driving are distinct offences. One can be found guilty of dangerous driving even in circumstances where no alcohol was consumed. In this respect, dangerous driving covers a broader range of activity. As Doherty J.A. explained in R. v. Ramage, 2010 ONCA 488 at para. 64:

An impaired driving charge focuses on an accused’s ability to operate a motor vehicle or, more specifically, on whether that ability was impaired by the consumption of alcohol or some other drug. A dangerous driving charge focuses on the manner in which the accused drove and, in particular, whether it presented a danger to the public having regard to the relevant circumstances identified in s. 249 of the Criminal Code. The driver’s impairment may explain why he or she drove the vehicle in a dangerous manner, but impairment is not an element of the offence. Both impaired driving and dangerous driving address road safety, a pressing societal concern. They do so, however, by focussing on different dangers posed to road safety. Impaired driving looks to the driver’s ability to operate the vehicle, while dangerous driving looks to the manner in which the driver actually operated the vehicle. [Emphasis added]

[157] Section 249(1) of the Criminal Code provides:

249 (1) Every one commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

[158] The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place.

[159] The mens rea looks to the degree of care exercised by the accused in carrying out the driving. The fault component flows from the fact that the accused has exhibited a “marked departure” from the norm expected in the circumstances. The conduct of the accused is measured against that which is expected of a reasonably prudent driver in the circumstances.

[160] It seems to me that operating a vehicle in a public place while impaired, in itself, satisfies the requirements of dangerous driving. There is no doubt that operating a motor vehicle while impaired on a public roadway creates a danger to the public. It also would constitute a marked departure from the standard of care expected of a reasonably prudent driver. So while dangerous driving may be broader and include acts other than impaired driving, in my view, if it is established that a person was driving while impaired, they will necessarily be guilty of dangerous driving.

[161] It is much like the situation where a driver who is in an extreme state of unrest, yet continues to drive, presents a danger to other pedestrians by doing so. In such circumstances, the choice to continue to drive in the face of extreme fatigue would be sufficient to make out the offence of dangerous driving. This was specifically addressed in R. v. Jiang, 2007 BCCA 270, at paras. 17 and 22. The court explained:

In my view, a sleeping driver is not driving of his or her own volition and acts committed while in that automatic state of mind cannot form the actus reus of dangerous driving. That is not to say that a sleeping driver can never be convicted of dangerous driving. The actus reus of the offence may consist not of driving while in a state of sleep, but of embarking on driving or in continuing to drive in the face of a real risk of falling asleep. As McLachlin J. (now C.J.C.) explained in R. v. Creighton, [1993] 3 S.C.R. 3 at 73, 83 C.C.C. (3d) 346, the actus reus of crimes of penal negligence “may consist in carrying out the activity in a dangerous fashion, or in embarking on the activity when in all the circumstances it is dangerous to do so.”

…… such a driver may be convicted of dangerous driving if the trier of fact is satisfied beyond a reasonable doubt that the driver embarked on driving or continued to drive in circumstances in which he knew or ought to have known that it was dangerous to do so because there was a real risk that he would fall asleep at the wheel. [Emphasis added]

[162] In my view, the same reasoning would apply in the context of impaired driving.

[163] In situations where the basis for the dangerous driving charge is simply the decision to drive while impaired, the delict would be exactly the same, and R. v. Kienapple, [1975] 1 S.C.R. 729, would apply.

[164] If the actual driving presents a separate delict, and creates a discrete example of danger apart from the impaired driving itself, there would be a basis for a trier to convict on both counts. This was addressed in Ramage, at para. 66:

In any event, on the version of events that the jury must have accepted, the appellant committed the crime of impaired driving when he got into his vehicle at the golf course where the reception was held and drove off towards his meeting many miles away. The driving that precipitated the allegation of dangerous driving occurred about a half an hour later, when the appellant drove across four lanes of traffic into oncoming vehicles. This criminal conduct cannot be described as a single delict. To the extent that Colby suggests that it can be described in this manner, I must, with respect, disagree. Even if one could imagine a case where the factual allegations supporting the charge of impaired driving are the same as the factual allegations supporting the charge of dangerous driving, that is not this case. The trial judge correctly held that Kienapple had no application.

[165] In this case, in my view, there is a complete overlap in the delicts. The wrongful conduct for the two charges is not discrete. The impaired driving causing death and the dangerous driving causing death pertain to the same delict or the same wrongful conduct. While the accused could be found guilty of both offences, in my view, Kienapple would warrant a stay of the dangerous driving in the circumstances.

[166] No doubt, even in the absence of the evidence of impaired driving, the Crown would be in a position to prove the dangerous driving charge purely on the basis of the circumstances of the accident itself. Even in the absence of impairment, there would be a strong argument that the accused was driving in a dangerous manner given the extreme nature of the accident on a straight road with clear weather conditions.

Conclusion

[167] Having considered the evidence in its totality, I am satisfied beyond a reasonable doubt that the accused, Noah Poisson, on August 15, 2016, did operate a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol and did thereby cause the death of Parker Pautsch (Count 3).

[168] I am also satisfied that Noah Poisson operated a vehicle with excess blood alcohol (Count 2) and that he operated a motor vehicle in a manner dangerous to the public thereby causing the death of Parker Pautsch (Count 1).

[169] The accused is convicted on Count 3 on the Indictment. Counts 1 and 2 will be conditionally stayed pursuant to Kienapple.

Justice C.F. de Sa

Released Orally in Court: March 4, 2019

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.

Footnotes

[^1]: The evidence need not establish profound or significant impairment. This element of the offence is satisfied if the evidence establishes any degree of impairment, from slight to great: see R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d R. v. Stellato (1994), 90 C.C.C. (3d) 160 (SCC).

[^2]: In other provinces, appellate courts have even held that is sufficient for the Crown to establish a temporal link: R. v. Koma, 2015 SKCA 92; R. v. Gaulin [2017] Q.J. No. 5110 (Q.C.A.).