Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Darsey O'Hara

Before: Justice C. Kehoe

Decision released on: May 14, 2012

Counsel:

• Ms. S. Fountain for the Crown
• Mr. G. White for the accused, Darsey O'Hara

KEHOE, J.:

Charges

[1] Mr. O'Hara is charged that on August 8, 2010, he operated a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol contrary to section 253(1)(a) of the Criminal Code of Canada.

[2] He is also charged that on August 8, 2010, he operated a motor vehicle with a blood alcohol concentration of over 80 milligrams of alcohol per 100 millilitres of blood contrary to section 253(1)(b) of the Criminal Code of Canada.

Evidence of Amanda Black

[3] Ms. Amanda Black testified. Ms. Black is a friend of Mr. O'Hara and was with Mr. O'Hara on August 8, 2010. Ms. Black wrote a statement on the night of the incident and adopted her statement as true to the best of her knowledge on August 8, 2010. Ms. Black confirmed that when she wrote the statement she was telling the truth as to what she could remember at the time. Ms. Black identified the written statement shown to her as the statement she wrote on August 8, 2010. Ms. Black was asked what her current recollection of what happened on August 8, 2010 was. She testified that "On that day I was supposed to be going to a party with Darsey and Jesse but I wasn't feeling up to it. I wasn't feeling well so I didn't go. I met up with Darsey at his grandmother's house later in the evening once he'd come back from the party."

[4] She could not recall where the party was to be held but that it was to be earlier in the afternoon. Ms. Black testified that she had planned to spend the night at the grandmother's house on Queen Mary Street. Ms. Black testified that she met up with Darsey at around 12:30 a.m.

[5] Ms. Black testified that when she met up with Darsey, she wanted to leave. She testified "He told me we are going to pick up his brother in jail." She testified that she was tired and wasn't feeling well. "I wanted to leave". She testified that she went and got into the back seat of Darsey's car and closed her eyes and was just relaxing. She testified that she didn't know how much later but Darsey and Jesse came to the car and they left to head towards the OPP station to pick up his brother.

[6] Prior to arriving at the grandmother's house, Ms. Black was at her own house and had driven to the grandmother's herself.

[7] Asked if the plan was that she was going to sleep overnight at the grandmother's why was it that she now wanted to leave, Ms. Black testified, "I wanted to get going. It was late. I was tired. I wasn't feeling well. I told him I'd come with them to go pick up Dakota from jail, but I didn't see any point in waiting around at the house. I wanted to get going. So, I went to the car to wait for them."

[8] Ms. Black was asked who was in the car. She testified, "I don't recall. Like, like I said I was kinda nodding off in the back, wasn't paying attention. It was dark. I don't – I can't say for certain who got in the driver's seat, who got in the passenger seat".

[9] Ms. Black was asked how long it took to drive to the OPP detachment and she thought about 20 minutes maybe, but was not 100% certain. Ms. Black assumed that Darsey was driving because it was his car and he didn't normally let people drive his car.

[10] Ms. Black was directed to two parts of her statement where she was describing the driver of the car she was in and the driver of another car on the roadway. Asked if that helped her to remember who was driving the car she was in at the time, she stated: "Again it was it was, this, this was written to me. Um, when we got to the OPP station there was a female cop that came to me and said Darsey was driving recklessly on the highway and he's gonna get charged with reckless driving. So, I assumed that she knew for a fact that it was – that he had told her, 'Yeah, I was dri..' you know, at, at that, at that point I didn't have any – I thought this was solely about reckless driving. And I assumed when she told me Darsey was driving like recklessly that she knew for a fact that it was Darsey that was driving. That's why I included his name in the statement as the way the information was presented to me. Um – at the time, to the best of my knowledge, this is, this how the events occurred to me but, um, at no point was I a hundred per cent certain."

[11] Confronted with the details in her statement concerning the incident and her evidence that she didn't notice who was driving the car she was in, Ms. Black stated: "My attention was focused on the driver in the other vehicle because it kinda woke me up and, and was concerning. My immediate attention was what's going on with this person in the, in the vehicle next to us. I wasn't talking to the driver or front passenger in, in the vehicle I was in. I was preoccupied with this other swerving vehicle beside us". Ms. Black described the vehicle she was in as a Chrysler 300.

[12] Ms. Black confirmed that her evidence was that her focus was on the other car such that she did not notice who was driving the Chrysler 300. She assumed the driver was Darsey because it was his vehicle and normally he does not let others drive his vehicle.

[13] Ms. Black testified that she wrote her statement approximately a half an hour after they arrived at the OPP detachment. Ms. Black testified, "When we arrived at the OPP station, um, the car was parked. And, I'm kinda fuzzy on the details. All I remember is, um, I heard, I heard – as Darsey went into the OPP station, I heard, um, yelling and stuff coming from behind the vehicle so I looked out. I saw two officers; one seemed to look like they were handcuffing him. So I got out of the vehicle and they yelled at me to stay in the vehicle. So, at this point, I had no idea what was happening. I was very confused and overwhelmed. Um, so I got back in the car and waited until somebody came out and told me what was happening. At which point, a female officer – I don't remember who it was, ah, told me that somebody reported, um, Darsey's vehicle on the highway and driving like a maniac, and she singled out, she pointed out Darsey as the driver and told me he was driving like recklessly like a maniac, I think, and that he was gonna be charged with reckless driving. At what point, at which point, I was, I was confused that this is all happening really fast."

[14] Jesse was with Ms. Black in the vehicle when the officer spoke with her. Jesse was in the passenger seat. Ms. Black was in the back seat. Ms. Black testified that no one else had entered the vehicle from the time they left Queen Mary Street. Ms. Black testified that "when Darsey was walking into the OPP station, Darsey and Jesse both got out of the vehicle. I stayed in the vehicle. Um, then Jesse hopped back in the passenger seat".

[15] Ms. Black testified that when they drove into the OPP parking lot she did not know who the driver was because she was dozing off and not paying attention.

[16] Ms. Black testified, "…the car was parked. Um, both Jesse and Darsey got out of the car. I remember I was still sitting in the back, um, and they were both outside. Darsey proceeded to go ahead in and told Jesse, un, 'I'll go in on my own. It's fine'. And so Jesse got in the – I know he, he – Jesse got back into the passenger seat. While, we were waiting for somebody to come explain to us what was happening, ah, I was in the back and Jesse was in the front. At that point, I was more awake because of what had gone on behind me with the police officer."

[17] Ms. Black was asked what had happened on the highway on the way to the OPP detachment. She stated, "It just caught me off guard. Um, I saw a car swerving, kinda in front of us. Um, sorry, I'm just reading through this to refresh it. Um, I don't quite remember. Um, right, okay, so, as we – we notice that this green car, um, in front of us that was kind of swerving and acting unusual for highway driving. Un, we pulled up beside the car and I rolled down my back window and we are trying to get, um, the guy's attention and ask him if he was all right. Um, he was making some hand gestures and but he didn't roll down his window so we, we didn't make any contact with him. Um, and so we drove off and he, he slowed down. I'm just going by what I wrote 'cause I, I don't remember particulars. This is really…Um, okay, yeah, and then he, he, he switched lanes and came into the, the left lane, we were in the left lane. Um, the green car came behind, behind us on the left lane, ah, very close to the bumper. And I just remember like jolting forward a little bit because the brakes were tapped. Um, an then we kinda accelerated to gain some distance because we didn't wanna be close to this vehicle."

[18] Ms. Black estimated that the interaction took about 10 seconds maybe. She testified that "it was, it was, it was pretty quick and we drove off".

[19] Ms. Black admitted that she was awake and conscious at the time of the event.

[20] Asked if she saw the other vehicle get into an accident she stated: "Ah, I, I guess it's called an accident. He was, ah, far behind. He slammed his brakes. I remember, um, hearing the screeching, it was his brakes being slammed and he kinda went over. It must have been two lanes 'cause we had been in the left lane. And, ah, but he, he was – he had been braking, so, when he hit the side cement of the far right side of the highway, um, he, he wasn't going very fast. He kind of swerved off and hit. Um, I just remember hearing the noises and looking back and seeing the damage was minimal. I saw him open his door but at that point we were, were on the highway and we were – we had passed him 'cause we had accelerated to get away from him kind of thing."

[21] Asked if their vehicle stopped for the accident, Ms. Black testified that they were passed him and would have had to reverse on the highway. Asked if anyone called the police to report the accident, Ms. Black testified, "We were heading to the OPP station. And we discussed – and I also saw – we saw in the rear view mirror cars, um slowing down that had been behind him when that had happened. Um, and we were heading to the OPP station with intentions of mentioning it briefly there but the, the passenger looked to be all right so we didn't call 911 or anything like that. We mentioned it when we got to the station".

[22] Asked if they discussed the event in the car she was in, Ms. Black testified, "Ah, I can't recall those – like I can't recall that".

[23] Asked again, Ms. Black testified, "We just said like, 'Geez', like that – it wasn't – I can't recall a discussion that we had about – I don't recall particulars of the discussion, if there was a discussion that followed after that. I'd assume there was but I don't remember that conversation if there was one".

[24] The Crown asked to cross-examine Ms. Black on the inconsistencies between her prior written statement and her testimony pursuant to section 9(2) of the Canada Evidence Act. The application was granted.

[25] Ms. Black testified that her illness was "I was feeling excessively tired for some reason and with a headache." She never went to a Doctor and had experienced the symptoms occasionally prior to August 8, 2010. She testified that it was not a migraine but that she had a headache and was tired.

[26] Ms. Black agreed that at the time she wrote the statement the events of the evening were quite fresh in her mind.

[27] Ms. Black was confronted with the fact that in that statement she repeatedly indicated that Darsey was the driver of the vehicle. Ms. Black testified, "To the best of my knowledge, from based on primarily the fact that I know he doesn't often – he didn't often let people drive his vehicle. And that cop that came to me when we were at the OPP station saying, 'Your friend Darsey was – is being – is gonna get charged with driving recklessly' like she fed the idea that Darsey was driving recklessly. And so I knew that the vehicle I was in was not driving recklessly. And combined with that info that she fed me that Darsey was driving, I assumed along those lines – I thought this had to do with reckless driving. I-I didn't know it was gonna come in like up to something this big. I was just – I don't remember particulars of the night. Um, to the best of my knowledge, my statement when I wrote it was accurate."

[28] Ms. Black is taken through the written statement and she adopts all of the details of the incident on the highway as true and as what happened.

[29] Ms. Black is then asked if she wants the Court to believe, when she is able to remember all of the details of the incident on the highway, that throughout that entire period of time and with what was happening she never noticed who was driving the vehicle she was in and she states: "At the time, I might have. I don't recall detail – like particulars of looking in the front seat and making note of who was where. I was tired and when this alterca – or whatever we wanna call it with the other car happened my focus was directed to the right looking at this whole stuff happening. When it finished, decide...like get away from the vehicle. It was not – I was not, I was not focusing on who was in the front. And I can't recall who was in the front of the vehicle. Now, it's been – it's been… it's been…"

[30] Ms. Black admits that Darsey and Jesse are in the front of the vehicle and states, "Correct. I can't recall who was sitting in the driver's seat. Now, at, at the time this was accurate to the best of, of my knowledge based on, um, patterns and a pretty fair assumption and what the female cop presented to me."

[31] Concerning her evidence and her statement concerning who was driving, Ms. Black admits that in the written statement all of her references to the driver identify Darsey as the driver. She admits that the events on the highway were fresh in her mind. She admits that she was conscious in the car while the incident was occurring. She admits that at no time during the incident and while it is occurring that she did not recall who the driver was, stating, "At that time, I may have. At this time, I don't remember…those particulars."

[32] Asked if she would have remembered at the time who the driver was, Ms. Black states, "possib…at the time, like I could've – I don't know. And I can't give any more information than what, what I've going by from this."

[33] Asked, "I'm asking you to agree that at the time this statement reflects your understanding of what had occurred?" and Ms. Black states, "To the best of my abilities, yes, that's…"

[34] Confronted with the fact that Ms. Black continues to qualify her evidence with "to the best of my ability", Ms. Black admits that she was awake during the incident and that she observed and noted the incident with the other vehicle. She states, "Yes. That's what I noted definitely, yes. That was something that was unusual that was going on that attracted my attention. Um, my attention wasn't diverted to the front of the vehicle for any reason. And I can't say for certain. I can, I can read this statement and it, it would make sense."

[35] Ms. Black states, "I, I may very well have noticed then, however, I don't recall now" referring to who was driving when she was in the back seat of the vehicle on August 8, 2010.

[36] She states, when asked if that would be something you would put in a statement to police immediately following that recognition, "Correct".

[37] In cross-examination, Ms. Black agreed that the suggestion by the female officer that Darsey was the driver played a role in her identification of Darsey as the driver.

[38] Ms. Black agrees that she has no independent recollection of who was driving the vehicle when it pulled into the OPP parking lot.

[39] Ms. Black agreed that it was possible that Jesse Dozois was the driver of the vehicle, stating "it's possible, those were the only two up front, so".

[40] Ms. Black agreed that both Darsey and Jesse got out of the vehicle when they arrived at the OPP parking lot and that Jesse got back into the passenger seat, stating "He did. I know that".

[41] Ms. Black agreed that she was unable to say which seat Jesse left from, stating, "Correct. I wasn't paying attention, at that point".

[42] Ms. Black testified concerning the noise she heard and whether she saw Darsey being arrested, "I'm not sure if it – if he – if it was being arrested, if that's what was going on but I did – he did have his arms behind him. And I, I believe it was a male and a female cop. The female yelled at me to get back in the vehicle and I got scared so I got back in the vehicle and didn't see much more after that."

[43] Ms. Black was asked by the Court, that when Darsey and Jesse got out of the vehicle did she get out of the vehicle at the same time. She stated, "No, I did not".

[44] Ms. Black testified that she got out of the vehicle when she heard yelling and the altercation behind her. She testified that she got out of the vehicle, looked and started walking towards where Darsey and the police officers were.

[45] Ms. Black testified that Jesse was in the passenger seat of the vehicle.

[46] Asked when Jesse got back into the vehicle, Ms. Black testified, "When Darsey started walking towards the police station. Darsey was going into the OPP station alone to pick up Dakota, ah, Jessie got back into the passenger seat of the vehicle."

[47] Asked what side of the car Darsey got out of, she states, "I, I don't know that. At, at that point, I wasn't paying attention."

[48] Asked how she did not pay attention when they got out of the vehicle but was certain Jesse got back into the passenger seat, Ms. Black explained, "Because Jesse and I stayed sitting in the car awaiting some kind of explanation for, I'd say 15 minutes, at which point, we were having engaged conversation as to what could, what could possibly be going on at this point. So I was very much awake at that point 'cause adrenaline was going and Jesse and I were having a conversation."

[49] Ms. Black admitted discussing the case with Darsey after he was charged, while they were still in a relationship.

[50] The written statement was admitted as Exhibit 1.

Evidence of Constable Gregory Bell

[51] Cst. Gregory Bell, an OPP officer for 11 years, testified that he was on duty on August 8, 2010.

[52] Cst. Bell testified that at 1:06 a.m. on August 8, 2010, he was inside the OPP detachment, in Kanata, completing release papers for another impaired driver he had been dealing with when he overheard on his police radio that another member of his platoon being dispatched to a fail to remain motor vehicle collision. The information he heard was that the complainant had been cut off by a silver Chrysler 300, that the complainant had lost control and went into the wall. Cst. Bell knew that a silver Chrysler 300 was involved in the first matter he was dealing with and thought that it might be the same vehicle involved in the now second incident. The other officer was Cst. Nguyen. Cst. Bell advised Cst. Nguyen that there might be a possible connection between the two incidents and went back to the first matter.

[53] At approximately 1:08 a.m. Cst. Bell overheard on the police radio that the silver Chrysler 300 had failed to remain at the scene of an accident. At approximately 1:11 a.m. he heard that there was a second complainant to the fail to remain motor vehicle collision and that the second complainant was following the silver Chrysler 300 off Highway 417, westbound at Eagleson Road. That report was followed by an update that the Chrysler 300 was pulling into the OPP detachment parking lot. Cst. Bell now believed that the silver Chrysler 300, the license plate having been given over the air, was registered to a male with the last name O'Hara. The male he was dealing with from the first incident was Dakota O'Hara and the silver Chrysler came back to another O'Hara, a Darsey O'Hara. Cst. Bell put the two together that the silver Chrysler vehicle was coming to pick up Dakota O'Hara.

[54] As soon as Cst. Bell heard that the silver Chrysler 300 had pulled into the lot, he ran outside into the parking lot and observed a lone male walking across the parking lot towards him. He had also observed a pick-up truck but did not know if it was related. The pickup truck was stopped at the front of the detachment.

[55] Cst. Bell saw the silver Chrysler 300 pull into the parking lot through the detachment windows. He lost sight of it momentarily as it clearly had stopped and parked in the lot by the time he got out the back door to the lot.

[56] Cst. Bell saw the vehicle parked in the lot and a lone male walking across the parking lot towards him. He described the male walking towards him as looking identical to the male that he had in custody. He realized that the male he had in custody and the male walking towards him were identical twin brothers.

[57] Cst. Bell asked for identification from the male walking towards him. Mr. Darsey O'Hara identified himself with a valid Ontario Driver's licence.

[58] Cst. Bell did not make observations of the vehicle at the time other than it was parked in the parking lot. He did not recall anyone else getting in or out of the Chrysler 300.

[59] Cst. Bell testified that the male walked towards him and he engaged the male in conversation. Cst. Bell asked the male a series of questions, "Are you the driver of the silver Chrysler 300 that just pulled in". The male said, "Yesh", slurring the s, "I am". Cst. Bell asked, "Were you just on the 471 highway?" and the male said "Yesh" again and again slurring the s so that it sounded more like "s-h". Cst. Bell asked, "Did you just cause a vehicle to get into an accident?" The male did not respond.

[60] Cst. Bell then formed the belief that based on his non-response about whether or not he was in an accident, that he was the driver of the silver Chrysler 300 that was in the accident, the fail to remain accident. Cst. Bell also detected a moderate to heavy odour of alcohol on Darsey O'Hara's breath. Cst. Bell asked the male for identification and Darsey O'Hara handed Cst. Bell Dakota O'Hara's expired driver's licence.

[61] Cst. Bell found that unusual because he knew he had Dakota O'Hara in the cells inside the detachment so the male could not possibly be Dakota O'Hara even though the two were identical.

[62] Cst. Bell asked Darsey O'Hara about the identification and testified that Darsey O'Hara realized he had handed Cst. Bell the wrong licence and he attempted to take it back. Cst. Bell did not return it. Cst. Bell observed that Darsey O'Hara appeared to be swaying very slightly where he stood with side to side motions. He had a moderate to heavy odour of alcohol on his breath. Based on the totality of the circumstances, Cst. Bell believed that Darsey O'Hara was involved in the fail to remain accident, the moderate to heavy odour of alcohol, his physical signs, ie. swaying, he formed the opinion that Darsey O'Hara was impaired by alcohol and he arrested him for impaired operation of a motor vehicle and failing to remain at the scene of an accident. Cst. Bell place Darsey O'Hara in handcuffs and performed a safety pat-down search and led Mr. O'Hara inside the office. Mr. Darsey O'Hara was arrested between 1:14 and 1:18 a.m. Cst. Bell saw the vehicle pull into the parking lot at approximately 1:14 a.m.

[63] Once inside the detachment, Cst. Bell led Mr. O'Hara to an interview room and waited for Officer Janet Guy to attend the room so that Cst. Bell could go and speak with the pick-up truck occupants. Cst. Bell wanted to know if that person was the witness that followed the silver Chrysler 300 from the location of the accident into the detachment parking lot.

[64] Cst. Bell testified that when he was speaking with Mr. O'Hara outside in the parking lot, Cst. Guy was present.

[65] Cst. Bell testified that he had not read Mr. O'Hara his rights and cautions immediately due to Mr. O'Hara's attitude, "he was trying to perform the tough guy role, saying some rude things in regards to the fact that he was related to members of the Ottawa Police Service, 'Oh, you will see, my whole family is police. You'll regret this. You'll see.'"

[66] Cst. Bell understood that Mr. O'Hara's attitude was drunk bravado.

[67] While waiting for Cst. Guy, Cst. Bell completed a thorough search of Mr. O'Hara and started the prisoner report.

[68] Cst. Guy attended the interview room and Cst. Bell went out to the pick-up truck. Cst. Bell learned from Cst. Guy that while he was outside with the pickup truck, Cst. Guy read rights and cautions to Mr. O'Hara. Cst. Bell returned at 1:34 a.m.

[69] At that time Mr. O'Hara did want to speak with counsel and Cst. Bell phoned Mr. White. Mr. O'Hara and Mr. White then had a private conversation between 1:34 and 1:39 a.m. Mr. O'Hara opened the phone room door and yelled, "Yo, I'm done".

[70] Cst. Bell made no further observations of Mr. O'Hara at the time other than that he was drunk and being quite rude.

[71] Cst. Bell identified Mr. Darsey O'Hara in the court room. Cst. Bell testified that he was very similar in terms of differences between August 8, 2010 and March 23, 2012, in the sense that his hair was a little bit shorter on August 8, 2010. Cst. Bell was able to identify Dakota O'Hara as sitting outside the court room. Cst. Bell knew the difference between the two men.

[72] Cst. Bell turned Mr. Darsey O'Hara over to Cst. Guy who was the qualified breath technician. Cst. Bell served Mr. O'Hara with the documents including the notice to produce certificate and the certificate of the qualified breath technician at 3:20 a.m. The certificate was admitted as Exhibit 2.

[73] In cross-examination, Cst. Bell agreed that when he saw the Chrysler pull into the parking lot through the windows he did not see how many people were in the vehicle. He agreed that he did not see Darsey O'Hara get out of the vehicle.

[74] Cst. Bell did not agree that he would have asked Darsey O'Hara if he was the owner of the vehicle. Cst. Bell recalled and had noted that he asked Darsey O'Hara if he was the driver of the Chrysler. Cst. Bell testified that he recorded it the way he recalled it, ie. asking Darsey O'Hara if he was the driver.

[75] Cst. Bell agreed that Darsey O'Hara had a full set of braces at the time and he agreed that he only slurred the "s" in "yes".

Evidence of Constable Janet Guy

[76] Cst. Janet Guy, an OPP officer and qualified breath technician, testified that she was on duty on August 8, 2010.

[77] Cst. Guy received information concerning the incident over the police radio when she was at the detachment. She had just completed a breath test on another subject and was completing those documents when she received information concerning another incident over the radio. It was information that a silver Chrysler with complainants following the vehicle towards Kanata westbound on Highway 417 and that the vehicles were driving into the OPP detachment parking lot. The time was approximately 23:32.

[78] Once Cst. Guy was aware the vehicle were in the OPP detachment parking lot she walked out to the front of the building and observed a silver Chrysler drive right past the front of the building, past visitors parking and down into the back parking lot where police vehicles are parked.

[79] Cst. Guy could see where the vehicle ended up parking from where she was standing. Cst. Guy testified that Cst. Bell was ahead of her in the parking lot, walking in the direction of the vehicle. She continued to walk down the front walkway, turning left and walking east through the parking lot towards Cst. Bell and the area of the vehicle.

[80] Cst. Guy saw the vehicle go through the front entrance parking lot and down to where the police vehicles are parked. She lost sight of it momentarily as she turned and started to follow the vehicle to the back parking lot.

[81] Cst. Guy observed a male running from the vehicle. She did not see the male exit the vehicle. She did not see anyone other than the lone male outside the vehicle at that time. Cst. Guy observed that Cst. Bell was between herself and the male and the vehicle. The male was running west away from the vehicle towards Cst. Bell. When Cst. Guy got to Cst. Bell and the male there was already some engagement between them. She was standing next to the male and Cst. Bell was in the process of arresting the male that she saw running towards him.

[82] Cst. Guy was present for the arrest that took place at 1:15 a.m.

[83] Cst. Guy was present for the full interaction outside the detachment between Cst. Bell and the male. She observed the arrest, handcuffing and Cst. Bell taking the male into the detachment.

[84] Cst. Guy observed a strong odour of alcohol on Darsey O'Hara's breath as he spoke, that he was unsteady on his feet, sort of, describing it as swaying.

[85] Cst. Guy went to the Chrysler 300 after Cst. Bell took Mr. O'Hara inside. Cst. Guy spoke to the other occupants in the Chrysler: a male seated in the front passenger seat, Jesse Dozois and a female in the rear, Amanda Black.

[86] Cst. Guy testified that she did not take statements but took identification from each of them. Cst. Guy testified that the female wanted to complain about the other vehicle's driving. Cst. Guy told the female to remain with their vehicle and the investigating officer will come and speak with her.

[87] Cst. Guy did not have any further conversation with either of them.

[88] Cst. Guy testified that the female stated that she was the girlfriend of Darsey O'Hara. Cst. Guy noted that Ms. Black was sober and Mr. Dozois was intoxicated. Cst. Guy noted that there was no alcohol in the vehicle.

[89] Cst. Guy then returned to the office, passed the information concerning the vehicle and passengers on to Cst. Nguyen and Cst. Bell. Cst. Guy went to the interview room. Cst. Guy observed Darsey O'Hara to be acting belligerent or argumentative with Cst. Bell described as verbally aggressive.

[90] Cst. Guy asked Darsey O'Hara if he wished to speak with a lawyer and he indicated that he wanted to speak with Gerry White. To prevent delays, Cst. Guy read Mr. O'Hara his rights to counsel, caution, secondary caution and the breath demand at 1:28 a.m.

[91] There were no issues concerning the rights and cautions or the demand.

[92] At 1:36 a.m. Cst. Bell took Darsey O'Hara to the telephone room to speak with Mr. White. He returned at 1:39 a.m. and Cst. Guy took him directly to the breath room.

[93] The readings were 105 milligrams of alcohol per 100 millilitres of blood and 97 milligrams of alcohol per 100 millilitres of blood.

[94] Cst. Guy noted that the effects of alcohol were obvious and his behaviour was passive aggressive, i.e. he was passive, polite and cooperative with the breath technician, Cst. Guy, but belligerent and abusive with Cst. Bell. Cst. Guy noted that Darsey O'Hara was impaired by alcohol.

[95] Cst. Guy testified that she did not see anyone exit the silver Chrysler 300 when she first saw the vehicle.

[96] Asked if it was possible for someone to have exited the vehicle and for her to have missed it, Cst. Guy stated, "It could have been possible because, ah, to be honest, my focus – the whole time out in that parking lot I was not 100 per cent focused on the vehicle because we were dealing with, um, Darsey O'Hara, so in the time that Cst. Bell and I were in close proximity to him in the parking lot during the time of arrest my focus was directed on him and away from that vehicle."

[97] In cross-examination, Cst. Guy agreed that she did not see how many people were in the Chrysler as it pulled through the parking lot. She agreed that she did not see who was driving the Chrysler.

[98] She agreed that she saw a single male running towards Cst. Bell, described as walking briskly.

[99] She agreed that that was what she was focused on.

[100] Cst. Guy was asked if she told Ms. Black that Darsey O'Hara was being arrested. Cst. Guy stated, "You know I have not, ah, I may hae, ah, it could have been possible, yes".

[101] It was suggested to Cst. Guy that she would have told Ms. Black that Darsey O'Hara was being arrested for impaired driving and fail to remain. Cst. Guy testified, "Ah, I don't I will have – I had conversation with her. And I – yes, I could've told her why he was being, ah, detained, yes. But I don't recall the specifics of the conversation."

[102] Ultimately Cst. Guy agrees that she may have told Ms. Black what Mr. Darsey O'Hara was being arrested for.

[103] Cst. Guy testified that no one else was outside the vehicle initially when she saw Darsey O'Hara approaching Cst. Bell. When asked whether between the time that Darsey O'Hara first approached Cst. Bell and when she arrived was anyone else out of the vehicle, she stated, "I don't recall. There could have been but I do not – I did not make note of it in my notes".

[104] Cst. Guy testified that she did not observe Darsey O'Hara get out of the vehicle but when she first observed him he was at the rear of the driver's side running away or walking quickly towards Cst. Bell.

[105] Cst. Guy testified that when she saw Darsey O'Hara outside the vehicle at the rear of the driver's door no one else was outside of the vehicle at that time.

[106] Cst. Guy testified that both Mr. Dozois and Ms. Black were inside the vehicle when she would have told Ms. Black that Darsey O'Hara was being arrested for impaired driving.

[107] Cst. Guy testified that Jesse Dozois was intoxicated and had a strong odour of alcohol coming from his breath. She identified him as a person she saw outside of the court-room at the court house.

Evidence of Jesse Dozois

[108] Jesse Dozois testified that he and Darsey have been friends since 2009. He said that he knew Ms. Black vaguely, that he had met her a few times but didn't know her very, very well. He knew Ms. Black in 2012 as Darsey's ex-girlfriend.

[109] Mr. Dozois testified that on August 7, 2010, he was with Darsey at a family barbeque. He said that he saw Amanda around 12:30 a.m., after her shift. He testified that she was a volunteer paramedic and he saw her after a long shift that day.

[110] He testified that the plans for the evening were that he and Darsey went inside (the grandmother's house on Queen Mary Street) and met Amanda. He testified that he and Darsey told her that they had to pick up Dakota and she said fine and went outside and got into the back of the car and passed out. He said that he and Darsey were inside the grandmother's house. Mr. Dozois said that he brushed his teeth, used the washroom and got a glass of water and they left.

[111] Mr. Dozois testified that he and Darsey had been at the family barbeque during the day and arrived at Darsey's grandmother's around that Amanda arrived there after they did. When asked for times, i.e. when he and Darsey would have arrived at the Queen Mary house, or when he learned that they had to go and pick up Dakota, Mr. Dozois testified that he could not recall times although he agreed that he had just testified that they had arrived at Queen Mary around 12:00 to 12:20 a.m. He agreed that the call to pick Dakota up would have come around 12:00 a.m., August 8, 2010 or sometime before they arrived at the Queen Mary address. Mr. Dozois testified that he and Darsey had been drinking alcohol at the barbeque. He did not know whether Darsey was intoxicated or not but he did not believe that he, Jesse, was intoxicated.

[112] Mr. Dozois testified that Dakota had been at the same barbeque and they had all left the barbeque at the same time, Dakota was following he and Darsey in another vehicle. Dakota was driving the grandmother's car.

[113] Mr. Dozois testified that he did not notice any accident or see Dakota's vehicle being pulled over by police. He testified, "I didn't see him get pulled over, no, because I continued. I-I had gotten ahead of him. Um, it seemed like almost like somebody was flashing at me. But, ah, like flashing their high beams or whatever like a normal car, vehicle but, ah, I didn't really pay much attention to it and I just continued off of the off ramp at the Hunt Club exit."

[114] Mr. Dozois testified that he was driving Darsey's vehicle as Darsey had asked him to drive. Mr. Dozois testified that Darsey had told him to drive because Darsey's licence had been suspended.

[115] Mr. Dozois testified that he drove the silver Chrysler 300 to the OPP detachment because Darsey's licence was suspended, he assumed and Darsey trusted him.

[116] Mr. Dozois testified, "While we were driving I would say, probably around Maitland, there was a green vehicle and it was weaving in and out of traffic like swerving but not really going a very fast pace. It seemed pretty clear to me that he was, I don't know, on something or severely intoxicated. Almost, almost hit us and so I'd, I had decided to go in the hammer lane, and the passing lane and passed him. So I passed him and then, um, basically, he started tailgating me so I said "Okay, well I'll just switch lane, get out of this lane." I go over one more lane. He's still following me very close, I would say within a foot of my bumper. So, I lightly tapped the breaks, just to give him a signal, you know, "You're too close, back up." And then I was focusing on the road. The music was pretty loud. We were – just kept going straight, and that was all I thought about.

[117] Mr. Dozois was asked whether he stopped to see if the other driver was okay and he stated, "I didn't see anything wrong. I didn't – I was focusing on the road ahead of me."

[118] Mr. Dozois testified that they did not have any discussion in the car about what had happened. He stated, "Well, we didn't really say much of it. Darsey said, 'What was going on with this guy', and it wasn't really a big thing, went around him."

[119] Mr. Dozois testified that he did not have any communication or try to communicate with the other car stating it was "too quick". He testified that Amanda was in the back, passed out. He said he was not really focused on Amanda but it was possible that she could have glanced up, he was not sure.

[120] Asked if Amanda was lying down in the back seat the entire time, Mr. Dozois, testified, "I believe so. I wasn't really focusing on her. I didn't see her in my rear view mirror so I'm assuming."

[121] Asked if Darsey and he had any conversation about the other car he testified, "He may have said something like, 'what was going on with that guy', or whatever's – I-I-I believe I said, 'He seems very drunk' or something, intoxicated on something."

[122] Mr. Dozois testified that when they got to the detachment, "we're both exited. I was going to go to the detachment with him. He said, 'Don't worry about it'. I said, 'Okay'. And, ah, I was pretty tired by this time, it'd been a full day, so, I asked Mandy if she could drive back. She said, 'No problem' and switched spots and went into the passenger seat and that was it."

[123] Mr. Dozois testified that he pulled into the detachment from Campeau. Asked if it was into the front of the station or the back, Mr. Dozois testified, "I believe it's only one entrance". Asked where he parked the car, he stated, "In the, the parking spaces". Asked where he parked, whether in front, middle or around the back, he testified "Um, middle backish, I would say". Asked if he parked the car, he stated, "I-I did".

[124] Mr. Dozois testified that after he parked the car, "I got out of the vehicle. Darsey said, 'Don't worry about it. Stay here' and I said, 'Okay'. Well, I was hoping Mandy would drive. I switched the seat, went to the passenger and had a nap".

[125] Asked what he was expecting to happen, he stated, "I was expecting Mandy to drive". And concerning Darsey he stated, "I was expecting him to go get his brother out of the detachment and we would leave. I'm not sure if it was a bail. I'm not too sure on what happens with that sort of thing."

[126] Mr. Dozois testified, "I was exhausted. I was tired."

[127] Mr. Dozois testified when asked that he had said he had had a couple of drinks, "I did. I wouldn't necessarily say that I was under the influence. I didn't feel that way, myself. I don't know."

[128] Asked if Amanda stayed in the car the whole time, he stated, "Um, she was for the first part. I was in the passenger seat – I'm trying to think. I think she may have gotten out. I'm not sure. But by the time she'd gotten out I was probably already switched with Darsey. I don't know. I'm 90% sure." He stated, I know she got out of the car eventually, I'm sure but I'm not sure of the time when she got out. I'm not sure of what point in time she got out of the vehicle."

[129] He agreed that it could have been much later.

[130] Asked what Darsey did when he got out of the car, Mr. Dozois stated, "From that point on, I'm not sure." He testified that he did not see anything from when he left the car. Asked what was the next thing he remembered, Mr. Dozois stated, "The next thing I remember, I was in the passenger seat, there was a knock on the door, and then an officer approached me and asked me a couple of questions."

[131] Mr. Dozois recalled the officer as "a bigger gentleman, I believe. He must have been the, the fellow there, Cst. Bell."

[132] Mr. Dozois denied that a female officer ever came to speak with him, it was a male.

[133] Asked what happened when Darsey exits the car, he states, "We, we got out. He said, 'Don't worry about it. You can stay here.' I said, 'Okay, no problem' and I moved to the passenger seat of the vehicle."

[134] Asked if Amanda stayed in the back, he stated, "I am not sure. I believe so, yes. I didn't see her get up at that point."

[135] Asked when he became aware of what was happening with Darsey, he states, "I wasn't – I was in the dark for a while. Then when, ah, I guess Cst. Bell or whoever the gentleman was who spoke to me, um, I-I was questioning what was going on because he was asking me, you know, 'What happened tonight' and a few things, and I answered him, and I-I didn't actually know concretely what happened until much later, maybe, two, three o'clock later. I'm not – I'm not a hundred per cent sure about the time but I know it was much later."

[136] Mr. Dozois believed that they arrived at the detachment around 1:00 a.m. He did not recall speaking with a female officer and believed that he gave his identification to Cst. Bell. He testified that he did not make a statement and that he believed Cst. Bell asked him if he wanted to write a statement but he said no, he wasn't quite sure of to which, who it was about at, at the time. He was assuming it was maybe about his brother trying to collect more evidence or something. He wasn't quite sure.

[137] Mr. Dozois testified that Cst. Bell did not specify what he was asking for the statement about.

[138] Mr. Dozois testified that he only became aware of Darsey's arrest when they left the detachment with Darsey and Dakota. He testified that Mandy drove.

[139] Mr. Dozois testified that he didn't say anything when Darsey got back into the car and told him that he had been arrested for impaired driving. He said he didn't know what to say as he was quite rattled and quite nervous. Mr. Dozois said that Darsey wasn't very pleased with it but he, Mr. Dozois, didn't know what to say to him and he didn't know what to say to me, I guess.

[140] He testified that "there was a quite awkward silence for a little bit, yeah. He explained what happened and then I didn't know what to say at the time." He did not recall Amanda saying anything at the time. He was not aware of Darsey telling Amanda what had happened. He testified that he has never had a conversation with Amanda about the incident since August 8, 2010. He hoped his testimony at trial would clear up the awkwardness in his relationship with Darsey.

[141] Mr. Dozois still considered himself a friend of Darsey O'Hara. He hoped so. He admitted that he and Darsey O'Hara have had discussions about the incident since, stating, "here and there".

[142] Mr. Dozois said that he has told Darsey, "I was willing to go on stand previously, whenever, ah, his original court date was set, and then that I would tell them what happened and explain the situation. And, ah, basically, that was the gist of it."

[143] Asked why he had never gone to the police and given a statement he said, "I was not told that I could do that. I was – I thought it had to go to court 'cause it was – charges were laid. No one explained to me that I could go to the cop – the police station and actually explain the situation."

[144] He testified, "In all honesty, no, I did not. I was not aware of that" in answer to the question that he did not think to go to the police to give them information relevant to the case.

[145] Mr. Dozois testified that Cst. Bell would have asked him to open the door of the car and he would have told Cst. Bell that that door does not open.

[146] Mr. Dozois did not believe that Amanda was aware that he was the driver because he knew that she wasn't awake when he entered the vehicle. She was very groggy, he was sure, as she had worked a good 12 hour shift.

[147] In cross-examination Mr. Dozois testified that the first he knew of Darsey's arrest was after it was all done and Darsey came back to the car after his release. He testified that "I was not aware; no officer made me aware of previous what happened." He testified that no officer ever asked him if he was driving the motor vehicle. He agreed that he had concerns that he would be charged.

[148] Mr. Dozois was asked why he did not go into the police station and straighten out that the police had arrested the wrong person, Darsey, as the driver on August 8, 2010, when he knew he was the driver. He maintained that he did not know that he could do that.

Additional Evidence

[149] Cst. Bell was recalled and testified that he never went to the Chrysler 300 or spoke to the passengers in the vehicle. Cst. Katherine Nguyen took the statement from Amanda Black. Cst. Nguyen is also a female officer. There was no cross-examination on that evidence.

[150] Defence called no evidence.

Submissions

[151] The Crown submits that the issue is the identification of the driver on August 8, 2010.

[152] The Crown characterized the evidence of Ms. Black and Mr. Dozois as a "well-rehearsed cover-up" that is a mockery of the justice system.

[153] The Crown submits that Ms. Black and Mr. Dozois were not credible. The Crown submits that there were inconsistencies between Ms. Black and Mr. Dozois' evidence, i.e. that Ms. Black was asleep the entire time in the back when Ms. Black testified that she was awake and watching the accident on Highway 417 as it unfolded. Mr. Dozois testified that he never spoke with a female officer that night when the evidence is that Cst. Guy spoke with Ms. Black, according to Ms. Black and Cst. Guy. And that Cst. Guy, according to Cst. Guy, took the identification from both Mr. Dozois and Ms. Black. It was the evidence of Cst. Bell and Cst. Guy that Cst. Nguyen, also a female officer, would have taken the written statement from Ms. Black. According to the evidence no male officer ever attended at the Chrysler that night.

[154] The Crown submits that some of the evidence of Ms. Black can be accepted, that she admitted to her statement and to all of the references of Darsey O'Hara being the driver and that conclusion was based on what she had seen that night.

[155] The Crown submits that the only reasonable inference is that Darsey O'Hara was the driver.

[156] The Crown submits that Cst. Bell and Cst. Guy both noted that no one else is outside the vehicle except Darsey O'Hara as Cst. Bell and Cst. Guy approach the vehicle shortly after watching it pull into the detachment and park in the back. Neither witnessed a seat exchange that Mr. Dozois testified occurred.

[157] Mr. White, on behalf of Darsey O'Hara, submits that Amanda Black's recollection was prompted by a female officer telling her that Darsey O'Hara was being arrested for impaired driving and that caused her to identify Darsey as the driver.

[158] Mr. White submits that neither officer puts Darsey O'Hara in the driver's seat and they don't have him leaving the driver's seat or the driver's door.

[159] Mr. White submits that the Crown's case, at its highest, is that Mr. O'Hara is walking quickly towards Cst. Bell at the rear of the driver's vehicle on the driver's side. Mr. White questions this recollection as Cst. Guy admitted that she had not noted the position in her notes.

[160] Mr. White submits that having ended the relationship with Darsey O'Hara in July 2011, Amanda Black had no motive to lie in March 2012.

[161] Mr. White submits that Mr. Dozois had a fairly good recollection of the night and that the inconsistencies demonstrate that it was not a rehearsed story that Mr. Dozois and Ms. Black provided to the court.

[162] Mr. White submits that there is only one logical conclusion, that the Crown has not met its onus, proof beyond a reasonable doubt, as to who was driving the vehicle on August 8, 2010 and Darsey O'Hara must be found not guilty.

Decision

[163] The only issue in this case is the identification of the driver of the silver Chrysler 300 on August 8, 2010. If Darsey O'Hara is found to have been the driver, there is no issue, given Exhibit 2, the certificate of analysis, that he was operating the motor vehicle with a blood alcohol concentration above the legal limit of 80 milligrams of alcohol per 100 millilitres of blood. If Ms. Black's evidence concerning the driving on Highway 417 is found to be credible, and Darsey O'Hara is found to be the driver, that along with the physical signs of impairment, ie. moderate to strong odour of alcohol on his breath, swaying and/or unsteady on his feet, slurred speech, and failing to remain at the scene of an accident, Darsey O'Hara's ability to operate motor vehicle would have been impaired by alcohol on August 8, 2010.

[164] This is a credibility case. I reject Mr. Dozois's evidence that he was the driver of the motor vehicle that night. Mr. Dozois' version of events is inconsistent with Ms. Black's evidence that Darsey O'Hara did not let other persons drive his motor vehicle. It is completely inconsistent with any kind of common sense that if Darsey O'Hara was going to let anyone else drive his vehicle, he would have asked Ms. Black to drive, given that she was his girlfriend and completely sober that night when Mr. Dozois had been consuming alcohol at a party with both O'Hara's since noon the day before. Mr. Dozois was aware that they were going to pick Dakota up at the OPP station, why would he risk driving having consumed alcohol all day to the police station. I reject his evidence that he was ever in the driver's seat on August 8, 2010.

[165] Ms. Black testified that she had given a written statement to police on August 8, 2010. She agreed that she had identified Darsey O'Hara as the driver of the silver Chrysler 300 on August 8, 2010. Ms. Black adopted her written statement as true and that it was to the best of her knowledge, what she had written in the statement at the time that she had written the statement.

[166] Ms. Black agreed that she had identified Darsey O'Hara as the driver at least on two occasions in her written statement.

[167] At trial, Ms. Black testified that now she could not recall who was driving because of the time between the incident and the trial. She testified that she assumed it was Darsey because Darsey did not let others drive his car.

[168] Ms. Black testified that while the incident occurred, she was awake and alert. She knew the exact facts of what had occurred on the highway, saw the green vehicle hit the wall and lose control. She felt and saw "Darsey" tap the brakes which led to the green vehicle to losing control and hitting the wall shortly after. She testified that she was watching the green car lose control and hit the concrete wall out of the "rear view" mirror in the Chrysler 300. I reject her evidence at trial that she did not take notice of who was driving the Chrysler while such or after such a dramatic incident would have occurred. I reject her evidence that her identification, of her boyfriend, as the driver of the Chrysler 300, that evening, would have been influenced by Cst. Guy.

[169] Ms. Black admitted that the three would have discussed the incident after it happened and since. Ms. Black would have discussed it that night with both Mr. O'Hara and Mr. Dozois. Mr. Dozois admitted discussing the incident with Darsey O'Hara that night and since. I find that Ms. Black's evidence and the changes from her statement, given when her recollection was the best, when she was sober, warned to tell the truth and the consequences of giving a false statement (see Exh 1), and adopted as being true, are a version concocted since she gave that statement. Mr. Dozois's evidence was concocted to be consistent with Ms. Black's story, i.e. that she was asleep the whole time and that he and Mr. O'Hara had switched places while she was asleep. I disbelieve that Ms. Black was asleep when the vehicle entered the parking lot at the OPP detachment.

[170] The circumstantial evidence also points to Darsey O'Hara as the driver. Mr. Dozois' evidence that he and Mr. O'Hara switched places is impossible when he also testified that the front passenger door did not open, (his evidence that when Cst. Bell asked him to open the front passenger door, he could not because that door did not open). Cst. Guy watched the vehicle pull into the detachment and watched it go around to the back parking lot. She lost sight of it momentarily when she turned to go to the back parking lot. Cst. Bell was out in front of her and had seen the car pull into the detachment at the front through the windows but was out the back door just after it was parked. Cst. Bell and Cst. Guy saw only one person out of the car, Darsey O'Hara. Mr. O'Hara was at the back of the driver's side of the vehicle. No one else was out of the vehicle. If the front passenger door was inoperable, it would have been impossible for Mr. Dozois and Mr. O'Hara to have crawled over each other to switch places and allow Mr. O'Hara to have exited the driver's side in that short a time period. If the passenger side door did not open Mr. Dozois might have been out of the vehicle but Mr. O'Hara would not have been out and around the vehicle by the time Cst. Bell and Cst. Guy were within sight of the parked vehicle and watching one male approach Cst. Bell, Mr. Darsey O'Hara.

[171] I accept Ms. Black's written statement as past recollection recorded. She testified that it was true and she adopted the statement with equivocal qualifications and inconsistencies in her current evidence.

[172] I have no doubt that Darsey O'Hara was the driver of the vehicle on August 8, 2010 and he will be convicted of having operated the motor vehicle with a blood alcohol concentration of over 80 milligrams of alcohol per 100 millilitres of blood. I am also satisfied that he was operating the motor vehicle while his ability to operate the motor vehicle was impaired by alcohol. That charge will be stayed as per Kienapple.

Released: May 14, 2012

The Honourable Justice C. Kehoe