Court File and Parties

Court File No.: Toronto 12003518/10

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Marianne Skrinjar

Before: Justice Paul H. Reinhardt

Heard on: 28 October 2011, 18 January 2012

Reasons for Judgment released on: 9 February 2012

Counsel:

• Helen Song for the Crown
• Anthony Bak for the Defendant

REINHARDT J.:

Charges

[1] Marianne Skrinjar is charged that on or about 6 August 2010, in the City of Toronto, in the Toronto Region, she did:

(1) While her ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to the Criminal Code; and further,

(2) Having the care of a motor vehicle that was involved in an accident with Muzaffar Abbas at Lakeshore Boulevard West, with intent to escape civil or criminal liability, fail to give her name and address to Muzaffar Abbas, contrary to the Criminal Code; and further,

(3) While her ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to the Criminal Code.

[2] In this proceeding I heard from four witnesses over two days: Constable Karey St. Clair, Badge 9619, Constable Paul Strangways, Badge 1439, Muzaffar Abbas and Nancy "Gail" Skrinjar, the mother of the defendant.

1: Summary of Facts

[3] Karey St. Clair testified that on 6 August 2010 he was driving a marked cruiser westbound on Lakeshore Boulevard West in downtown Toronto, approaching the Boulevard Club at about 1:40 a.m. in the morning when he was flagged down by a pedestrian, Mr. Muzaffar Abbas, who appeared to him distressed and upset. Mr. Abbas described to him an incident that had occurred moments earlier in which his car had been hit from behind by a red SUV, and the driver of the car, a young female, who had hit his car had engaged him in conversation, but then driven off without providing him with any personal information. He was concerned that the young woman driver was clearly under the influence of alcohol.

[4] Constable St. Clair also testified that Mr. Abbas had filmed part of his encounter with the young driver, on his cell phone, and showed the video to Constable St. Clair. Constable St. Clair testified that he subsequently forwarded by e-mail the video to his colleague, Constable Paul Strangways.

[5] Constable St. Clair also testified that, from the information provided to him by Mr. Abbas and from his own observations, he prepared a collision report, which became Exhibit 1 in this proceeding, and he also forwarded that report to Constable Strangways.

[6] In cross-examination, Constable St. Clair confirmed that he observed damage to the Abbas vehicle which included scrapping along the rear driver's-side of the car.

[7] In cross-examination, Constable St. Clair also confirmed that he took a witness statement from the civilian, Mr. Abbas, at the scene.

[8] Constable St. Clair testified that when asked by Constable St. Clair if he could identify the driver, Mr. Abbas replied "I can't really".

[9] Marked as Exhibit 2 in this proceeding were Constable St. Clair's field notes covering his interview with Mr. Abbas.

[10] Constable Paul Strangways also testified.

[11] Constable Strangways testified that on 6 August 2010 he had a brief conversation with Constable St. Clair about his investigation of this case. He initially received a licence plate number, AAPD056 and a video from the scene, by e-mail, as well as a Collision Report.

[12] Constable Strangways testified that he received the full paper file from Constable St. Clair on 7 August 2010, and commenced his investigation, by doing a Driver Record search, which provided him initially with a vehicle model ('97 GMC Yukon, Red) and a registered owner (Trans-Canada Construction, 2350 Lenworth Drive, Mississauga). Through additional searching he located a residential phone number and an address for the vehicle registered to the licence plate. He testified that he then watched the video, made a copy, and filed the video on his computer.

[13] Constable Strangways testified that shortly thereafter, at 9:40 am, he telephoned the number and spoke with a person who identified herself as Marianne Skrinjar's mother, a person who I now know to be the last witness before me, Nancy Gail Skrinjar.

[14] Constable Strangways testified that on 10 August 2010, Marianne Skrinjar came to his police station at 9 Hanna Avenue, Toronto, with her father, Josip Skrinjar, and identified herself with a valid Ontario Driver's Licence with photo identification. Constable Strangways also testified that when Ms. Skrinjar came to the station she was wearing the same pink bra that he had seen in the video taken on the night of the incident.

[15] Constable Strangways also confirmed while testifying that while Marianne Skrinjar's hair was brown, in court, on 28 October 2011, her hair had been much lighter when she came to the station to speak to him on 10 August 2010.

[16] Constable Strangways also testified that on 10 August 2010, he requested and received an e-mail from Mr. Abbas, which was disclosed to the defence. This e-mail was then marked as Exhibit A in this proceeding.

[17] Constable Strangways also testified that he observed the '97 Yukon SUV on 10 August 2010, and had it photographed when it was brought to the station by the defendant and her father.

[18] Constable Strangways testified that the only damages that he could observe on the vehicle were to the front passenger side bumper, and these damages were also captured by the police photography on the 10th.

[19] Marked as Exhibit 3 in this proceeding was the police photograph of the front bumper of the Skrinjar vehicle. Exhibits 4a to 4f were the other photographs taken by the police on the 10th.

[20] Constable Strangways conceded in cross-examination that the damage to the Skrinjar vehicle was extremely minor, as all of the contact with the Abbas vehicle appeared to be on the GMC's padded bumper.

[21] Muzaffar Abbas also testified for the Crown.

[22] Mr. Abbas testified that on 6 August 2010 at the time of these events he was driving westbound on Lakeshore Boulevard West, at a slow rate of speed, approximately ten kilometres per hour.

[23] Mr. Abbas testified that as he was approaching the Boulevard Club, a car hit his car from behind, making contact with the body of his car on his left-hand-side quarter-panel. The impact was slight, but the car that was bumping his car from behind kept pushing into his car, without braking.

[24] Mr. Abbas testified that when the two vehicles came to a stop, he got out of his vehicle, and approached the driver's-side door of the SUV.

[25] Mr. Abbas testified that he requested that the driver of the SUV provide him with her ownership and insurance, but the driver indicated she did not have these documents.

[26] Mr. Abbas testified that, by agreement, the two drivers then pulled their vehicles into the Boulevard Club parking lot.

[27] Mr. Abbas testified that it was clear to him immediately that the other driver was intoxicated.

[28] Mr. Abbas testified that she showed a number of signs of intoxication: she refused to make eye contact with him, there was a smell of alcohol on her person, she was slurring her speech, and she was wobbling on her feet once she got out of her vehicle in the parking lot.

[29] Mr. Abbas testified that, in the parking lot, when Ms. Skrinjar got out of her vehicle, he decided to pull out his cell phone and surreptitiously record their conversation. This cell phone "video" became the final exhibit in this trial.

[30] The video that Mr. Abbas made at the scene was presented to confirm elements of Mr. Abbas' testimony.

[31] Mr. Abbas testified that the young driver who encountered that evening was Ms. Marianne Skrinjar, the defendant in court in this proceeding.

[32] Mr. Abbas testified, and the video confirmed, that the two drivers' discussed whether the female would identify herself, and how she would recompense Mr. Abbas for the damage to his car.

[33] Mr. Abbas testified and the video confirms that the young female driver who I now know to be Ms. Skrinjar asserted at various points in the conversation either that her father would pay for the damage, or that she would follow Mr. Abbas to a bank machine to withdraw the funds needed.

[34] Mr. Abbas testified, and the video confirms, that during the conversation, Ms. Skrinjar would not give him her name, but said such things as "you know me" and "you have my licence plate" as alternatives to identifying herself.

[35] Mr. Abbas testified, and the video confirmed, that Mr. Abbas kept asserting that Ms. Skrinjar should not drive, should leave her car where she had parked it, because she was drunk, and she kept saying that she was able to drive.

[36] Mr. Abbas testified, and the video confirms, that Ms. Skrinjar was trying to convince him to let her drive on her own, and he was stating that he couldn't do this, because she was drunk, and he had to report the accident to the police.

[37] Mr. Abbas testified that at the end of their conversation, Ms. Skrinjar asked him to move his vehicle, which initially was blocking her way out of the parking lot, and he did so.

[38] Mr. Abbas testified that, at this point, Ms. Skrinjar got back into her vehicle and drive it away, leaving him behind in the parking lot.

[39] Mr. Abbas testified that he then was able to flag down Constable St. Clair, almost immediately after Ms. Skrinjar left the scene, and tell the officer what had happened.

[40] In cross-examination, Mr. Abbas testified that he and Ms. Skrinjar had moved the two vehicles approximately fifty meters into the Boulevard Club parking lot from the original point of the collision on the Lakeshore Boulevard West.

[41] In cross-examination, Mr. Abbas testified that he chose to video Ms. Skrinjar, rather than call the police with his phone.

[42] In cross-examination, Mr. Abbas testified that when initially asked by Constable St. Clair to describe Ms. Skrinjar, he indicated that he could not adequately describe her, but also indicated that he had videotaped her with his cell phone camera, in order to be able to identify her.

[43] In cross-examination, Mr. Abbas was asked if, in fact, Ms. Skrinjar, despite being unable to produce any documents, had verbally identified herself.

[44] In response to this question, Mr. Abbas testified that she "Absolutely did not" identify herself verbally to him.

[45] This completed the case for the Crown.

[46] Marianne Skrinjar's mother, Nancy "Gail" Skrinjar, testified for the defence.

[47] Mrs. Skrinjar confirmed that she and her husband, along with their daughter, Marianne, reside at a residence in Mississauga. She testified that Marianne Skrinjar, their daughter, is a student at the University of Toronto.

[48] Mrs. Skrinjar testified that Marianne was diagnosed in Grade 8 as having a hearing deficit, having only 60% acuity in her right ear and 40% in her left ear. She testified that this has caused her daughter to lisp, speaking regularly from the back of her mouth, sounding like "marbles" since she was approximately four-years old.

[49] Mrs. Skrinjar also testified that her daughter plays rugby and has received two concussions for which she continues to have symptoms, including migraine headaches.

[50] Mrs. Skrinjar also confirmed that the family share a 1997 GMC Truck, which is owned by her husband's company, Trans-Canada Construction, but which is regularly driven by all her four children.

[51] Mrs. Skrinjar testified that when Constable Strangways called her at home, she went to wake her daughter, who was complaining of suffering from a migraine headache, and wished to remain in bed that morning.

[52] In cross-examination, Mrs. Skrinjar testified that the ownership for the truck is kept in the glove compartment of the car, and all her children know this.

[53] In cross-examination, Mrs. Skrinjar testified that her daughters "symptoms" the morning after the accident were not due to a "hangover".

[54] In cross-examination, Mrs. Skrinjar further asserted that her family were "not a family of drinkers" and that her daughter's symptoms of "light-sensitivity", headache and not wanting to talk that morning were consistent with her "post-concussion syndrome".

[55] In cross-examination, Mrs. Skrinjar testified that her daughter was undoubtedly very worried about how Mrs. Skrinjar's husband, Josip, would react to hearing that his daughter had been in an accident and was therefore flustered and nervous, both at the scene, and later, the next day, when speaking to the police.

2.1: Position of the Defence

[56] The defence submits that the Crown has not shown either that Ms. Skrinjar was impaired, or that she failed to identify herself to Mr. Abbas.

[57] The defence submits that there is no independent evidence of how the accident took place, or sufficient evidence of Ms. Skrinjar's driving, to show that her "ability to drive was impaired by alcohol". (See R. v. Andrews, 1996 ABCA 23)

[58] The defence also suggests that the "in-court" identification of Ms. Skrinjar as the driver of the vehicle is not supported by Mr. Abbas' statement to the police at the scene, or his e-mail to the police, Exhibit A, which fail to provide any specific identification details.

[59] The defence submits that a strong odour of alcohol on the breath of Ms. Skrinjar, coupled with "erratic driving" was not sufficient to make out the offence of "impaired" (See R. v. Ruelland, [1998] O.J. No. 975)

[60] The defence also submits that where the defendant provides a plausible explanation for her behaviour at the scene, and where the defendant's name and address were "already known" to the other driver, the Crown has not proven "failure to give her name and address", Count 2, beyond a reasonable doubt. (See R. v. Mathews, [1994] N.B.J. No. 5)

[61] The defence further submits that on the facts before me, I should conclude that Ms. Skrinjar, did not, in fact, provide her name and address, because the video does not reflect the entire encounter between the defendant and Mr. Abbas that evening, and therefore parts of the conversation were not recorded.

[62] The defence also submits, because the video does not reflect the entire encounter, that the Crown has not proven beyond a reasonable doubt that Ms. Skrinjar fled the scene.

[63] The defence also submits, in the alternative, if this court finds that Ms. Skrinjar was driving while her ability to drive was impaired that this court cannot convict for more than one count of impaired driving, because of the principles in R. v. Kienapple and R. v. Kinnear

2.2: Position of the Crown

[64] The Crown submits that there is sufficient evidence of impairment from the evidence of Mr. Abbas, coupled with the video exhibit.

[65] The Crown also submits that there is sufficient Crown evidence of her failing to identify herself and fleeing the scene by way of the uncontradicted testimony of Mr. Abbas.

3: Case Law, Analysis & Findings

Has The Crown Proven Impairment?

3.1: The Case Law On Impaired

[66] Ms. Skrinjar came to the attention of the police through the scrutiny of a civilian; Mr. Muzaffar Abbas. It was Mr. Abbas flagging down of a police Constable; Constable St. Clair, after his encounter with Ms. Skrinjar, and the showing of a cell phone video to Constable St. Clair, that began the investigation. It was a day after that, when Constable Strangways began his investigations, that the Crown's evidence was gathered together.

[67] In R. v. Stellato, [1994] 2 S.C.J. No. 51, Chief Justice Antonio Lamer approved the reasoning of Justice Jean-Marc Labrosse in the Ontario Court of Appeal, where he stated, at page 384:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[68] In Stellato Mr. Justice Labrosse summarizes the findings of the trial court below:

At trial, the Crown's evidence consisted of the testimony of the arresting officer and the breathalyzer technician who had observed the classic signs of impairment: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on his feet. Both police officers had concluded that the appellant's ability to operate his vehicle was impaired by alcohol.

In his reasons, the trial judge stated:

The question then remains as to whether those observations are sufficient or indeed whether in law what the court requires, in order to convict someone of this offence, [is] a marked departure from the standard. In that regard I have always had reference to the case of R. v. Winlaw, that is a decision of the Ontario District Court, as it then was, and His Honour Judge Salhany, a case reported at 13 M.V.R. (2d) 112, 6 W.C.B. (2d) 251, a judgment rendered some two years ago, December, 1988. There, the learned judge went through the law, as was presented to him, with respect to the law of impaired driving and I take that case to stand for the proposition that the section involved here, namely, s. 253(a), creates an offence of being impaired, not markedly impaired, but simply impaired, and it does not require evidence of a marked departure from a norm or standard of sobriety; any kind of impairment, even slight, was sufficient to constitute the offence.

[69] In any proceeding, the onus lies upon the prosecution to prove the accused's guilt beyond a reasonable doubt. (See Manning, Mewett & Sankoff, Criminal Law, 4th Edition, Lexis-Nexis Canada Inc. 2009, page 31, and see Woolmington v. D.P.P., [1935] A.C. 462 at 481-82)

[70] The defence has asserted that there was not sufficient evidence of identification in the Crown's case because it was essentially "in-court" only. I must disagree. Mr. Abbas took a video of Ms. Skrinjar at the scene, and identified her in court. Ms. Skrinjar's mother confirmed that the 97 Red GMC Yukon was a family vehicle, and that her daughter had driven the vehicle the night before. There was visible damage on the vehicle bumper, observed by Constable Strangways, consistent with Mr. Abbas description of the accident. When she attended the station to be interviewed the next day, according to Constable Strangways, she was wearing the same red brassiere she was wearing in the cell-phone video the night before. In my view, that is sufficient evidence of identification to meet the Crown onus.

[71] The second defence argument, citing R. v. Andrews, supra, was that there was not sufficient evidence called by the Crown as to how the accident took place, or how Ms. Skrinjar was driving, to establish that "her ability to drive was impaired by alcohol". Again, I must disagree.

[72] The Crown, through the testimony of Mr. Abbas, does describe evidence of the manner of Ms. Skrinjar's driving. In addition to the initial bumping there was the continued application of force to the Abbas vehicle, by the Skrinjar vehicle, well after the initial contact. This is some indication of impairment in her ability to drive.

[73] In addition, there is the evidence of the effects of the consumption of alcohol: a smell of alcohol on her person, a difficulty in focusing on or making eye-contact with Mr. Abbas, wobbling on her feet as she got out of her car, as well as slurred speech.

[74] Ms. Skrinjar's mother, Nancy "Gail" Skrinjar, has testified that her daughter has suffered for many years from a "marbles" manner of speech, due to hearing difficulties, which might be confused with the slurring often attributed to alcohol consumption.

[75] Ms. Skrinjar's mother also testified that on the morning after the incident, her daughter wished to stay in her darkened bedroom and that this was consistent with her "post-concussion syndrome" and not necessarily due to the consumption of alcohol the night before.

[76] This requires me to consider whether there is sufficient evidence of intoxication, un-related to Ms. Skrinjar's manner of speech or her "post-concussion syndrome" that might lead me to conclude that she had been drinking while driving. In my view there is.

[77] Mr. Abbas described a number of indicia of intoxication that night, other than Ms. Skrinjar's manner of speech. As summarized earlier, Mr. Abbas testified that Ms. Skrinjar refused or was unable to make eye contact with him. There was a smell of alcohol on her person. She was wobbling on her feet once she got out of her vehicle in the parking lot at the Boulevard Club.

[78] But more importantly for the Crown in this trial, there is a recorded conversation, which reveals an intoxication that is having an impact on her ability to make choices about what to do at the scene.

[79] In the recorded conversation Mr. Abbas kept asserting that Ms. Skrinjar should not drive, should leave her car where she had parked it, because she was drunk, and she kept saying that she was able to drive.

[80] In my view, Ms. Skrinjar's decision to drive, in the circumstances of this case is evidence I can weigh in the determination of whether her "ability to operate" was impaired.

[81] From those circumstances, along with his physical symptoms, I have concluded that the Crown has proved that her ability to operate a motor vehicle was impaired, within the test in Stellato, beyond a reasonable doubt.

[82] In my view, the Crown has provided sufficient objective of erratic driving, consumption of alcohol, and impairment of her decision-making as a driver to meet the test set out in Stellato and therefore there will be a finding of guilt with respect to Count 1 in the Information.

Has The Crown Proved That Ms. Skrinjar Left the Scene of the Accident Without Providing Her Name & Address?

[83] The Defence argument in this count is that Ms. Skrinjar has provided a "plausible" explanation" of her behaviour at the scene sufficient to raise doubt that she failed to provide her name and address to Mr. Abbas, and cites R. v. Mathews, supra.

[84] In Mathews the accused was charged with dangerous driving. He testified that while driving, he dropped a lighted cigarette and bent down to pick it up, causing his truck to veer onto the wrong side of the road and sideswipe and oncoming truck. This explanation was found by the trial judge to be uncontradicted, and also to meet the test of "might reasonably be true."

[85] Mr. Abbas testified, and the video confirms, that during their conversation, on the Lakeshore Boulevard West and in the parking lot of the Boulevard Club on 6 August 2010 in Toronto that Ms. Skrinjar would not give him her name, but said such things as "you know me" and "you have my licence plate" as alternatives to identifying herself.

[86] Mr. Abbas testified, and the video confirmed, that Mr. Abbas kept asserting that Ms. Skrinjar should not drive, should leave her car where she had parked it, because she was drunk, and she kept saying that she was able to drive.

[87] Mr. Abbas testified, and the video confirms, that Ms. Skrinjar was trying to convince him to let her drive on her own, and he was stating that he couldn't do this, because she was drunk, and he had to report the accident to the police.

[88] Mr. Abbas testified that at the end of their conversation, Ms. Skrinjar asked him to move his vehicle, which initially was blocking her way out of the parking lot, and he did so.

[89] Mr. Abbas testified that, at this point, Ms. Skrinjar got back into her vehicle and drive it away, leaving him behind in the parking lot.

[90] In my view, the reasoning in Mathews has no application to the facts before me in this trial. Ms. Skrinjar, either in testimony or by other evidence, has not explained her reason for not providing her name and address to Mr. Abbas. She has not explained why she abruptly drove out of the parking lot at the Boulevard Club.

[91] In my view, there is, in the case at bar, no "plausible explanation" of her conduct at the scene of the accident.

[92] The defence has made the additional argument that because the "cell-phone video" is not a complete record of everything that transpired at the scene, I cannot conclude that Ms. Skrinjar fled the scene, without giving her name and address to Mr. Abbas. In my view, this argument must also fail.

[93] Mr. Abbas has testified that he was not provided with a name and address from Ms. Skrinjar. He has also described her abrupt departure, without notice to him, prior to any name or address having been provided. This is uncontradicted Crown evidence. In my view this is sufficient to establish the Crown onus on both the actus reus and mens rea of the offence.

[94] For the above reasons, there will be a finding of guilt with respect to Count 2 in the Information.

[95] The defence also submits that this court cannot convict for more than one count of impaired driving, because of the principles in Kienapple, supra.

[96] I agree that I should not enter two findings with respect to the impaired driving. I have evaluated her driving in terms of all she did while she was being scrutinized by Mr. Abbas that night and I have concluded that the entire event should be evaluated as one transaction. In the result, I will dismiss Count 3 on the Information.

Released: 9 February 2012

Signed: "Justice Paul H. Reinhardt"