Court File and Parties

Court File No.: Halton, 11-320 Date: 2012-05-01 Ontario Court of Justice

Between: Her Majesty the Queen — and — Darryl Andrews

Before: Justice Lesley M. Baldwin

Heard on: February 13 and February 16, 2012

Reasons for Judgment released on: May 1, 2012

Counsel:

• Arish Khoorshed for the Crown
• Bruce Daley for the accused Darryl Andrews

Judgment

BALDWIN, J.:

Introduction

[1] The evidence of three (3) civilian witnesses was read-in on consent, four (4) witnesses testified viva voce, and 10 Exhibits were filed over the course of this two (2) day trial.

[2] Mr. Andrews pled not guilty to Impaired Operation and Over 80 arising from events on December 18, 2010 in Burlington.

[3] At the conclusion of the trial evidence, the issues were narrowed as follows:

1. Did the lab technician at Joseph Brant Hospital have the lawful authorization to take a sample of Mr. Andrews' blood?

2. Has the Crown proven beyond a reasonable doubt that Mr. Andrews' ability to operate a motor vehicle was impaired by alcohol?

Driving Evidence

[4] Three civilians witnessed a serious single motor vehicle collision on the QEW highway on Saturday, December 18, 2010 at approximately 12:15 am.

[5] There is no issue that Mr. Andrews was the sole occupant and driver of the vehicle.

[6] According to Shirley Ball, she was about 10 car lengths behind Mr. Andrews' pick-up truck, going south bound on the QEW, when she observed his truck start to roll.

[7] The weather was "clear and no snow, roads (were) dry."

[8] She did not observe any driving prior to the "roll."

[9] A couple of cars may have been between her vehicle and the truck when she made her initial observation.

[10] She pulled her car over in front of the truck after it rolled and went back to assist.

[11] She observed Mr. Andrews sitting behind the wheel of the truck. "He was a big guy, looked around 48."

[12] Ms. Ball, and another woman who came to assist, held Mr. Andrews up when he got out of the truck.

[13] The other woman asked Mr. Andrews "age, date? He knew the answers."

"His speech was pretty normal, a little bit slurred. He did say he had been drinking."

[14] Ms. Ball saw blood on Mr. Andrews' face and a cut on his head; she smelled something that could have been an alcoholic beverage on him; he was swaying sideways.

[15] Ms. Ball was present when the ambulance attendants arrived and put a collar on Mr. Andrews and placed him on a stretcher.

[16] Mr. Andrews did not consume any alcohol after the accident.

[17] Mr. Thomas Trindade was driving in the left lane on the QEW near Brant street.

"Traffic was perfectly fine. Roads were dry – it was dark and clear".

[18] As he was driving past the split to the 403, he saw Mr. Andrews' truck across the right lane facing to the right.

[19] Mr. Trindade pulled over to the left shoulder and ran up to the truck to see how the driver was.

[20] He saw Mr. Andrews laying face down across the centre console and passenger seat. "He looked unconscious."

"The music was blaring incredibly – I could hear it from my car 15 – 20 feet away."

[21] Mr. Andrews did not have his seat belt on.

[22] After a minute or so, Mr. Andrews began to "stir."

[23] A female passenger in Mr. Trindade's car kept yelling at Mr. Andrews to wake up.

[24] When Mr. Andrews became conscious, he said "just a minute" and he "kept trying to start the truck over and over."

"We finally got him out of the truck and walked him over to the guardrail. It looked like he was able to stand. Gabby (Trindade's female passenger) asked him questions like what was his birthday and name and he answered them fine. He first said he was 20 but then quickly changed it to 45."

[25] Mr. Chris Sheen was driving westbound on the QEW from Mississauga heading home to Hamilton.

"Traffic was average, not busy. It was dark and the roads were dry. The traffic was going around 100 km/hr."

[26] Mr. Sheen drove to the QEW/403 split and took the QEW southbound.

[27] He was in the curve of the right lane when he saw the truck 30 to 40 feet ahead.

"The truck rolled…5 or 6 times and then landed right side up in the right lane. There weren't any vehicles near the truck before it started rolling."

[28] Mr. Sheen got out of his vehicle and ran up to the truck.

[29] He saw Mr. Andrews in the driver's seat trying to start the truck "over and over."

[30] Mr. Sheen did not see any air bags deployed, nor could he tell if Mr. Andrews was wearing a seat belt.

[31] He asked Mr. Andrews if he was okay. "He did not answer me."

"There was music blaring so loud. The driver got out of the truck with my help and another person, and walked out but was very disoriented. I didn't smell any alcohol at this time…There was blood on his face."

[32] Officer Martin Watson of the OPP arrived on scene and began a conversation with Mr. Andrews at 12:38 a.m. He got into the ambulance as Mr. Andrews was driven to the Joseph Brant Hospital in Burlington.

[33] There is no issue with respect to Officer Watson's grounds for arrest in this matter. It is not necessary for me to go through all the questions and answers that were exchanged prior to Mr. Andrews' arrest at 12:50 a.m. There were ample grounds for the arrest in this case.

[34] Mr. Andrews was read his rights to counsel and cautioned.

[35] Officer Watson clearly detected a strong odour of alcohol coming directly from Mr. Andrews' mouth. His face was flushed. His left eye was swollen and bruised. Mr. Andrews had "pissed his pants."

[36] Officer Watson formed the opinion that Mr. Andrews was intoxicated.

[37] Mr. Andrews' truck was severely damaged in the roll over.

[38] In cross-examination, Officer Watson testified that he is a qualified breath technician and he has performed approximately 120 tests in the field.

[39] Officer Watson agreed that the majority of his grounds for the Impaired Driving arrest were based on the conversation he had in the ambulance with Mr. Andrews.

Evidence re: Collection of Blood

[40] At 1:07 a.m., Mr. Andrews was seen by Dr. Aziz in the emergency department at Joseph Brant Hospital.

[41] Dr. Aziz was at the head of Mr. Andrews' bed; Officer Watson was at the rear of the bed. Several nurses were present. Mr. Andrews was conscious.

[42] Dr. Aziz made an initial assessment of Mr. Andrews.

[43] Officer Watson asked Dr. Aziz if Mr. Andrews was medically able to provide a breath sample. Dr. Aziz said no.

[44] Officer Watson asked Dr. Aziz if a blood sample would interfere with medical treatment. Dr. Aziz said no, it would not.

[45] Dr. Aziz told Officer Watson that he would have medical staff assist in taking blood samples from Mr. Andrews.

[46] At 1:17 a.m., Officer Watson read the blood demand.

[47] Dr. Aziz filled out and signed in blue ink the 'Certificate of a Qualified Medical Practitioner' that morning and it was filed as Exhibit #4 at this trial.

Exhibit #4 was defective as it states that the blood was drawn by Dr. Aziz at 1:45 and 1:48 a.m. on December 18, 2010.

Exhibit #3 at this trial was a corrected 'Certificate of Qualified Medical Practitioner' stating that Dr. Aziz caused samples of blood to be taken under his direction by a qualified technician (blood samples) as defined in subsection 254(1) from a person identified to him as Darryl Andrews. Dr. Aziz signed this amended certificate on April 5, 2011.

Exhibit #3 contains a 'Certificate of a Qualified Technician (Blood Samples)' signed by Cecile Ouzas on March 30, 2011 stating that she took two samples of blood from Darryl Andrews on December 18, 2010 at 1:45 a.m. and 1:48 a.m. under the direction of Dr. Aziz.

If the Crown had tried to rely solely on the Certificates in this case, there would be substantial proof problems. However, the Court heard testimony from the lab technician who drew the blood, Cecile Ouzas; her manager at Joseph Brant Hospital, Allan Lupish; and the toxicologist who analyzed the blood, Patricia Solbeck.

[48] Officer Watson testified that he had the blood kit brought to the hospital at 1:44 a.m.

[49] Cecile Ouzas was identified to him as the lab technician for the hospital and that she was attending to take blood samples from Mr. Andrews.

[50] This information was consistent with what Dr. Aziz had stated to the Officer shortly before.

[51] She opened up the kit at 1:45 a.m. and began taking the samples.

[52] Officer Watson observed her to clean the area with the iodine base that came with the kit.

[53] The first sample was in the vial at 1:47 a.m.; the second sample at 1:48 a.m.

[54] The containers were sealed with identifiers AMC9268 and BMC9268.

[55] A sample blood kit was filed as Exhibit #5 and the process of taking the sample was explained in detail by Officer Watson. Ms. Ouzas put seals on the vials of blood and the Officer put a seal on the outside of the blood sample box.

[56] The box was then placed in an envelope for storage at the police station and delivery to the Centre of Forensic Sciences (CFS) for analysis.

[57] On December 22, 2010, Officer Watson drove the samples to the CFS and delivered them at 11:25 a.m. The seals were intact.

[58] On February 3, 2011, Officer Watson had the CFS results and served Mr. Andrews with documents regarding the Over 80 charge.

Testimony of Cecile Ouzas

[59] Ms. Ouzas testified that she is employed as a lab technician at Joseph Brant Hospital and she was on duty on December 18, 2010.

[60] Her formal job description is called a "Medical Lab Technician" and she has been trained and certified to take blood samples.

[61] Taking blood samples is what she does all day and she has been doing that for 30 years.

[62] She is not a registered nurse or a registered technician with the Canadian Society of Lab Technicians.

[63] Her job description is located at the Joseph Brant Hospital.

[64] On December 18, 2010, she was paged to attend the emergency department to take blood samples using the kit.

[65] Dr. Aziz was dealing with Mr. Andrews and she saw Dr. Aziz in the emergency department that morning.

[66] Ms. Ouzas testified that she attends to take blood samples at the request of a nurse or an emergency room physician.

[67] Dr. Aziz was not with her when she took blood from Mr. Andrews.

[68] Ms. Ouzas believed that she signed Exhibit #3 the night she took the samples. She has no notes and could not explain why her signature is dated March 30, 2011.

[69] Ms. Ouzas testified as to how she took the two vials of blood from Mr. Andrews, and how the vials are secured by cork seal; seal over the cork seal; vials secured in the kit box; box is sealed.

Testimony of Allan Lupish

[70] Mr. Lupish is the Manager of Lab Services and Lab Systems at the Joseph Brant Hospital.

[71] Ms. Ouzas reports to him.

[72] Since 2001, Ms. Ouzas' primary job responsibility is to take blood.

[73] Her job responsibilities are set out in a document that is stored electronically at the hospital. Her job description is approved of by Mr. Lupish together with the hospital's medical director.

[74] Mr. Lupish is the person who encodes the job description in the electronic format.

[75] Each employee has a password code that they enter to acknowledge and date their job description. They sign their job description electronically.

[76] Ms. Ouzas' job description was entered as Exhibit #9.

Analysis of Blood Samples

[77] Patricia Solbeck is employed as a forensic toxicologist at the CFS.

[78] Her CV was filed as Exhibit #6 and she was qualified on consent to give opinion evidence in this matter in the areas set out on page 1 of Exhibit #6.

[79] Ms. Solbeck is also a designated analyst for purposes of section 258 of the Criminal Code of Canada.

[80] On January 6, 2011, she received the sealed blood kit in this case.

[81] The outer box had been opened per procedure by the CFS receiving officer and the seal was still affixed.

[82] The two vials of blood contained therein were still sealed with identifiers AMC9268 and BMC9268.

[83] The seals had not been "tampered" with.

[84] On January 10, 2011, she broke the seal on vial marked AMC9268 and analyzed it for ethanol (alcohol).

[85] Ms. Solbeck testified that the BAC remains fixed once the sample is taken from the subject. There is no elimination factor.

[86] She concluded that "the concentration of ethanol detected in the blood indicates a blood alcohol concentration of 258 milligrams of alcohol in 100 millilitres of blood at the time the sample was collected."

[87] Ms. Solbeck's report was filed as Exhibit #7.

[88] Ms. Solbeck testified that anyone's ability to operate a motor vehicle with a BAC of 258 would be severely impaired.

Analysis

Over 80 Charge

[89] Defence counsel, Mr. Daley, submits that there is no evidence that Ms. Ouzas was authorized in writing to take a blood sample from Mr. Andrews as required by section 258(1)(d)(iii) of the Criminal Code which reads:

"both (blood) samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner."

[90] Crown and Defence counsel referred in their submissions to the CFS instruction sheet for the collection of blood samples under this section of the Criminal Code. That document is now marked as Exhibit #10 in this trial.

[91] Exhibit #10 reads as follows:

B. INFORMATION FOR THE PERSON TAKING BLOOD SAMPLES

1. Blood samples may be taken for the purposes of the Criminal Code by a "qualified medical practitioner" or a "qualified technician in respect of blood samples". In Ontario the Solicitor General has designated persons of the following classes of persons as qualified technicians in respect of blood samples:

a. Registered nurses.

b. Registered medical technologists certified by the Canadian Society of Laboratory Technologists.

c. Persons authorized in writing by the hospital employing them to take blood samples.

[92] The Crown submits that by calling Mr. Lupish who created Ms. Ouzas' job description, and by filing that description as Exhibit #9, they have established her authority to lawfully take the blood samples in this case.

[93] The Crown submits that it is irrelevant that her job description is stored electronically rather than in paper form in a file cabinet.

[94] I agree with the Crown.

[95] The section does not read that the job description has to be in "hand writing" or "type writing", nor does it specify a certain language or a certain form (Braille for example). To do so would lead to absurdity.

[96] The section is designed to ensure that the job description is formalized and legitimate, and Ms. Ouzas' job description and authority to take blood samples clearly is.

[97] The continuity of the blood samples taken by Ms. Ouzas has been proven beyond a reasonable doubt.

[98] The analysis performed by the forensic toxicologist was thorough and without issue.

[99] There is no doubt in my mind that Mr. Andrew's blood sample resulted in a BAC of 258.

[100] There has been no Charter section 8 breach in this case and the results of the blood sample analysis is admitted into evidence.

[101] Accordingly, Mr. Andrews is found guilty of the offence of Over 80.

Impaired Driving Charge

[102] It is not disputed that at a BAC of 258, Mr. Andrews' ability to operate a motor vehicle was severely impaired.

[103] In addition to this significant reading, I note as follows:

1. there was a significant unexplained accident on a major highway;

2. after his truck had rolled over 5 to 6 times, Mr. Andrews regained consciousness and then tried to start his truck "over and over" again, despite civilians attempting to help him exit his truck after this crash;

3. the music in the truck was blaring;

4. his breath reeked of alcohol and he admitted consumption to a civilian witness, Shirley Ball.

[104] I am satisfied beyond a reasonable doubt that Mr. Andrews' ability to operate a motor vehicle was impaired by alcohol and a finding of guilt is registered on this count.

Decision

[105] Guilty on counts #1 and #2.

[106] A stay will be registered on count #2 at the Crown's request.

[107] All of the witnesses' evidence, the Exhibits filed, and submissions heard, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. (See R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Drabinsky, 2011 ONCA 582, [2011] 107 O.R. (3d) 595 (OCA).)

Released: May 1, 2012

Signed: Justice Lesley M. Baldwin