Court File and Parties
Ontario Court of Justice
Date: 2013-09-16
Court File No.: Halton 2517-11
Between:
Her Majesty the Queen
— and —
Brian Beerbaum
Before: Justice L.M. Baldwin
Heard on: August 13, 2012 and January 29, 2013
Reasons for Judgment released on: September 16, 2013
Counsel:
- M. Ward, counsel for the Crown
- N. Xynnis, Counsel for the defendant Brian Beerbaum
Judgment
BALDWIN J.:
Note: Reasons for Judgment reserved to May 27, 2013 and not prepared due to in-custody reserved judgments and other reserved judgments that took priority over the preparation of reasons in this case. Reasons for Judgment were adjourned to today's date, September 16, 2013 accordingly.
Introduction
[1] Brian Beerbaum was charged with Impaired Driving and Over 80 on August 6, 2011 at the City of Burlington.
[2] This was a one issue trial – namely, the identity of the driver.
[3] It is admitted that Mr. Beerbaum was impaired by alcohol and provided breath tests that resulted in readings Over 80.
[4] It is admitted that Bryan Beerbaum and his friend Christopher Haas were in Bryan's parents' minivan at approximately 3:20 a.m. when it was involved in an accident with another vehicle at the intersection of Fairview and Brant Streets in the City of Burlington.
[5] Fairview Street was under construction at the time and a paint crew and truck were working on pavement markings.
[6] At the time of the accident the paint truck was in the intersection attempting to turn around and go in the opposite direction.
[7] There was only one lane open for all traffic exiting Fairview Street onto Brant Street. (Tr. Aug. 13/12 p. 25)
[8] A paid duty police officer was in a cruiser facing southbound on Brant street to block traffic. All the traffic coming into the intersection was forced to make right hand turns and was not allowed to proceed through the intersection in any direction.
Summary of the Testimony of Grant Townsend
[9] Mr. Townsend was driving the paint truck facing eastbound on Fairview, attempting to make a left turn onto Brant Street heading north in the intersection.
[10] He observed a minivan come up the right turn channel to go northbound on Brant Street.
[11] Mr. Townsend sort of stopped his truck to make sure that the van could go ahead of him and get out of the intersection so he could turn the paint truck around.
[12] The van stopped. Mr. Townsend motioned to the van to go ahead as in "don't worry about the big truck with the yellow lights…I'm giving you the right of way". (Tr. August 13, 2012 p.9)
[13] Mr. Townsend then noticed another vehicle pull up behind the minivan.
[14] He saw the driver of the minivan put his vehicle in reverse. He saw the minivan's reverse lights come on as reflected in the vehicle behind it.
[15] Mr. Townsend testified that he tried to indicate to the driver of the minivan not to reverse because he could see that there was a car right behind him. Mr. Townsend was waving his hands, yelling and was beeping the horn of the truck trying to get the driver's attention.
[16] Mr. Townsend testified that he could see 2 people in the minivan – the driver and a passenger. They both appeared to be young Caucasian males.
[17] He looked directly at the driver. "Driver, I thought, with glasses and passenger without…I was certain the driver was wearing glasses. That's all I could, you know, really safely say". (p. 10)
[18] Mr. Townsend testified that he was 100 percent certain that the driver was wearing glasses because he was trying to make eye contact with him and let him know that somebody was behind him.
[19] He was looking at the driver for approximately 20 seconds. (p. 11) He was looking at the driver through his windshield into the van's windshield. He was approximately 40 feet away from the minivan at the time. (p. 15)
[20] Mr. Townsend could not say if the driver of the minivan made eye contact with him. He is certain that the driver was aware of the paint truck.
[21] He saw the minivan reverse quickly into the car behind it. The van quickly pulled forward and then continued slowly cutting north on Brant. The van turned into the first easement after the intersection at a plaza.
[22] Mr. Townsend immediately tried to get the attention of the paid duty officer so the minivan would not leave the scene of the accident. He saw the paid duty officer pull into the same plaza the minivan had entered.
[23] In cross-examination, Mr. Townsend said that he thought the minivan should have pulled over to the right in the easement after the accident. He thought when he saw the van pull into the plaza parking lot and drive straight to the back that it might be trying to leave the scene of the accident because there is a way to exit the plaza and get back onto Fairview Street again. He last saw the van when it was approximately 40 meters back into the plaza parking lot. He did not see the van park.
[24] When asked to describe the glasses, Mr. Townsend said "My thought at the time was that they were big enough that I sort of recognized them. That the frames were thick enough that I sort of made that out at that point that I recognized that sort of thing…They weren't…square, John Lennon like glasses". (p. 21)
[25] Mr. Townsend repeated that he was sure the driver was wearing glasses. (p. 22)
[26] Mr. Townsend could not identify Bryan Beerbaum as being the driver in court.
[27] Christopher Haas was paged into the courtroom. Mr. Townsend could not identify Mr. Haas as being the driver.
[28] Mr. Townsend thought he saw the passenger throw his arms up after the accident.
[29] Mr. Townsend testified that it was between 10 to 20 seconds that he was looking through his windshield trying to get the attention of the driver of the minivan before the accident. The headlights of the paint truck were pointed right at the minivan.
Summary of the Testimony of Officer David Shanly
[30] Officer Shanly was on paid duty at 3:20 a.m. on August 6, 2011. He was a block north of Brant and Fairview in a fully marked cruiser blocking access to the southbound lanes at that intersection.
[31] He did not see the accident. One of the workers on site (Mr. Townsend) approached him and said "A van just backed into the lady and took off". (p. 34) He was advised that the last digits of the license plate were 788.
[32] Officer Shanly proceeded southbound towards the intersection where the worker indicated that the accident had occurred. One of the workers advised him that the van had pulled into a lot.
[33] He pulled into the lot and observed the Chevy Venture which had plate AEYE 788. It was parked next to a pickup truck that was blocking it from exiting back onto Fairview Street. (p. 34)
[34] Officer Shanly pulled up and observed all the (exterior) lights of the vehicle to be off and both passenger and driver doors were wide open, all the way.
[35] As he was approaching the driver's side of the vehicle, the person in the driver's seat, Mr. Haas, immediately said "My buddy is drunk and I am driving him home". (p. 35)
[36] Mr. Beerbaum was sitting in the passenger seat. Mr. Beerbaum was wearing big thick glasses with black frames. The same glasses, or similar to the glasses, that he is wearing in the courtroom today.
[37] Mr. Haas was not wearing any glasses.
[38] Officer Shanly only dealt with Mr. Beerbaum and Mr. Haas for a minute or two before other officers arrived and took over the investigation.
[39] He went back to Mr. Townsend and discussed with him who the driver was. Mr. Townsend told him that the driver was absolutely wearing a pair of black glasses.
[40] Officer Shanly went back to the plaza lot and advised Officer Syring (the arresting officer) that the witness stated that the driver was wearing black glasses; the vehicle had left the scene quickly and gone behind the pickup truck; when he approached the van both doors were wide open, both parties still sitting in the vehicle which he thought was abnormal after a traffic accident; that he believed that Mr. Beerbaum was the driver of the van at the time of the accident. (p. 38)
[41] In cross-examination, Officer Shanly stated that he could not recall if the driver and passenger were wearing seatbelts when he approached the van.
[42] Officer Shanly agreed that just because the doors were open does not mean that Mr. Beerbaum and Mr. Haas had switched sides.
[43] Officer Shanly agreed that Mr. Townsend could not provide any other description of the driver or passenger such as colour of hair or clothes being worn.
[44] Officer Shanly testified that Mr. Haas statement that "My buddy's drunk and I'm driving him home" seemed very odd and out of place to him. He thought Mr. Haas was nervous and was lying to him. (pp. 49, 50)
Summary of the Testimony of Bryan Beerbaum
[45] Bryan testified that he is 21 years of age, born in Hamilton. He is single and has no children.
[46] He attends Fanshawe College in London.
[47] On August 5th, 2011 he woke up and went to work in Brantford making chocolates. He worked the 3 p.m. to 11 p.m. shift. Later in his evidence he said that he made a mistake about that. He worked at a garden place in Ancaster that day.
[48] Then he drove to Burlington and attended a charity event at the Polish Banquet Hall (located on Fairview Street).
[49] He arrived at 11:45 p.m., had some drinks at the event until 2 a.m. After that he hung out in the parking lot with his sister and some friends, including Christopher Haas.
[50] His plan was to sleep in his van parked in the parking lot until the morning.
[51] Christopher decided to wait with him. Approximately half an hour later, Chris said he would drive him home. Chris had not been drinking, so Bryan gave him the keys.
[52] Two to three minutes after they started driving (westbound on Fairview Street) to Brant Street the accident happened.
[53] Bryan testified that before the accident he had his head down in the van. He looked up and saw that the windshield wipers were on and he told Chris to turn them off (it was not raining). Bryan saw the construction and could see that they had to go into the turning lane.
[54] Christopher went to turn off the wipers and accidentally put the van in neutral and the van rolled back. He felt a jolt and raised his hands up in the air and said to Chris, "What are you doing?". He told Chris to stay here, but Chris said he had to move and he pulled the van into the closest parking lot on the corner.
[55] As they pulled into a (parking) space, the car they had hit rolled in behind them. The police were there one to two minutes later.
[56] He and Christopher got out of the car and he put his glasses on.
[57] Bryan testified that he did not have his glasses on when he was sitting in the van. He did not drive the van after they left the Polish Hall.
[58] In cross-examination, Bryan stated that the van belonged to his parents. The plan was for Chris to drive him home to Stoney Creek and then Chris could just walk to his own house from there. Chris has been his best friend since Grade 1.
[59] He agreed that at the time in question he was in possession of black prominent glasses.
[60] He repeated that his plan was to sleep in the van at the Banquet Hall. He had slept in his van before after he had been drinking. Chris had not been drinking. Chris could not fit into the other cars that left the Banquet Hall. Chris said he would stay in the van with him.
[61] Bryan testified that he was reclined in the driver's seat; Chris was in the passenger seat.
[62] Chris suggested he drive them home. Bryan testified that he had not let anyone drive his parent's van before. He was concerned that if something happened to the van his parents would not let him drive it again. He told Chris he wanted to stay the night. He and Chris discussed the situation for maybe 10 minutes. He was drunk at the time and dozing off.
[63] Finally he said okay, Chris could drive them home. They switched sides and Chris starting driving home.
[64] Bryan's glasses were in the center console at the time. He was not wearing them. He needs his glasses to drive.
[65] As they were driving, Bryan had his head in his hands with his eyes covered until they approached the intersection where the accident occurred.
[66] Bryan repeated how the accident happened as testified to in-Chief.
[67] Bryan testified that he was yelling at Chris after the accident.
[68] Chris pulled about 70 feet into the parking lot and parked in a space to the left. They sat in the van and saw the police. The interior lights of the van were on so he could look for his glasses. He got his glasses and put them on and they got out of the van.
[69] Bryan did not think that the van doors were wide open when the officer approached. He testified that the officer got out of his cruiser at about the same time as he and Chris got out of the van.
[70] Bryan does not remember Chris saying, "My buddy's drunk and I'm driving him home".
Summary of the Testimony of Christopher Haas
[71] Chris is 21 years old and was born in Hamilton.
[72] He presently attends Mohawk College.
[73] In August of 2011 he worked in Brantford from 3 p.m. until 11 p.m.
[74] He headed home and changed into a black T-shirt and brown shorts.
[75] Friends drove him to the Polish Banquet Hall. They arrived after midnight. He thought he was getting a ride home with one of his friends. That didn't happen.
[76] He decided to stay with Bryan because Bryan was drunk.
[77] Chris testified that the Banquet Hall event was a 'white party' and Bryan was dressed in a fancy white suit, tie and shoes.
[78] Chris did not get into the event because of how he was attired. He had no alcohol to drink that night.
[79] When he first got into Bryan's van to stay with him, Bryan was in the driver's seat and he was in the passenger seat. Bryan had planned to sleep in the van for the night. The motor vehicle was off.
[80] Bryan was drunk and feeling sick. He would not allow Chris to call his parents to come and pick them up. After a discussion, Bryan finally agreed to let Chris drive him home. Bryan threw-up before they switched seats. It took some time to get Bryan into the passenger seat.
[81] As Chris was driving, Bryan had his head down on the dash on his arms and was feeling sick.
[82] Chris testified that Bryan didn't want him to drive because he was feeling sick.
[83] Chris testified that he had never driven a van before. He was a new driver and holder of a G2 licence.
[84] When he went into the turning lane (on Brant Street) Bryan asked him to turn the wipers off. They had been on the entire time he had been driving.
[85] Chris testified that he mistakenly used the shifter in an attempt to turn off the wipers. His foot was on the gas and the van went into neutral. He accidentally hit the car behind them and pulled into a parking lot about 30 feet away.
[86] In the parking lot he helped Bryan find his glasses.
[87] The lady whose car he hit pulled up adjacent to the parking lot.
[88] As soon as he and Bryan got out of the van to speak to the lady the police showed up. He and Bryan then stayed in the van.
[89] Chris testified that Bryan did not turn on or drive the van that night.
[90] Chris testified that he was arrested for Obstruct Police in this matter.
[91] In cross-examination, Chris testified that he gave a videotaped statement to police that morning following his arrest. The DVD and the transcript were filed as trial Exhibits.
[92] Chris repeated that Bryan wanted to stay in his van overnight at the Banquet Hall. Bryan was sick and didn't want to move; he also didn't want Chris to drive the van.
[93] Chris repeated that, as he was driving, Bryan was not wearing his glasses.
[94] He agreed that he may have blurted out "My buddy's drunk and I'm driving him home" to the officer. He testified that he needed to explain himself in case the police thought he had fled the scene and was trying to drive away. Chris testified that he was nervous dealing with the police. He had never had an accident before.
[95] He helped Bryan find his glasses before they got out of the van. The glasses were in the basket between the two seats. They were also trying to find the documents to exchange with the person involved in the accident. Bryan was intoxicated and not being very helpful.
[96] Chris agreed that the van doors were wide open when the cruiser pulled up because they were about to get out of the van at the time.
[97] Chris testified that he thought the difference in the way he and Bryan were dressed that night would be more obvious to observers than the glasses issue.
Exhibit #1 – Video Statement
[98] In his videotaped statement given to police that morning at 5:44 a.m., Christopher Haas repeated the same version of events that he testified to at trial.
[99] In summary, Bryan was drunk and sick and wanted to sleep in his van at the Banquet Hall. Chris did not want to leave him there alone. Chris convinced Bryan to let him drive the van home.
[100] Chris was an inexperienced driver and had not driven a van before. He also did not know Burlington very well and had never driven on a highway.
[101] Shortly after driving down Fairview Street he came upon the construction site at the Brant intersection.
[102] The van wipers were on and Bryan told him to turn them off. In his attempt to turn the wipers off, Chris reversed the van and hit the car behind.
[103] He decided to proceed ahead not to impede traffic and pulled into the lot 30 feet ahead. He signalled his turn into the lot. He had no intention to flee the scene of the accident.
Position of the Parties
Defence
[104] The defence submits that the Crown has not established the identity of the driver beyond a reasonable doubt.
[105] The defence submits that Mr. Townsend's identification evidence must be assessed in light of the frailties commonly associated with eyewitness identification. Counsel referenced that case of R. v. Quintin Danvers, [2005] O.J. No. 3532.
[106] The defence submits that Mr. Townsend had only a fleeting 10 to 20 second look at the driver from some distance away at the busy construction site. The defence submits that Mr. Townsend was honestly mistaken as to what he saw.
[107] The defence submits that both Bryan and Chris have given straightforward accounts and they are adamant that Chris was the driver.
Crown
[108] The Crown submits that Mr. Townsend was a careful and reliable witness.
[109] The Crown submits that it defies common sense that Mr. Townsend would be mistaken about the driver wearing thick black glasses and the passenger was wearing no glasses. Mr. Townsend was focused on the driver because he was trying to prevent that driver from causing an accident.
[110] The Crown submits that identification has been proven beyond a reasonable doubt.
Findings of Fact
[111] I have applied the three-pronged test in set out in R. v. W.D. by the Supreme Court of Canada in assessing the evidence heard in this matter.
[112] Mr. Townsend was a credible and careful witness. For 10 to 20 seconds the lights of his paint truck were beaming into the windshield of the van Bryan and Christopher were in. He had a clear and unobstructed view into that van from a distance of approximately 40 feet away.
[113] He observed two young Caucasian men in the front of the van. He was 100 percent certain that the driver was wearing glasses and the passenger was not.
[114] The glasses he described seeing were thick black-framed distinctive glasses.
[115] In court, Bryan was wearing similar thick black-framed distinctive (Buddy Holly style) glasses.
[116] There was nothing in the evidence to suggest that Mr. Townsend's identification evidence was tainted in any way, such as him seeing Bryan and Christopher in the parking lot after the accident or being told by someone else on the scene that the driver was wearing glasses.
[117] Standing on its own, the evidence of Mr. Townsend makes out the case for the Crown beyond a reasonable doubt.
[118] However, the evidence as to who was driving as related by both Bryan and Christopher has been consistent throughout. Christopher's version is the most reliable given that he was sober during the events in question.
[119] Christopher has explained why he pulled into the parking lot instead of to the side of the road in the turning lane. Christopher has explained how his inexperience with driving in general, and operating a van in particular, resulted in him reversing the van into the vehicle behind him. Christopher has explained what happened after he parked the van in the plaza both before and after the police arrived.
[120] I have no reason to reject Christopher's version of events which is supported by Bryan's. I assessed both young men to be sincere and credible witnesses.
[121] There was no evidence that anyone saw these young men switch positions in the parking lot. Officer Shanly's evidence does not lead me to draw a reasonable inference that Bryan and Chris switched places after the van was parked. His evidence, without Mr. Townsend's account, is speculative at best.
[122] Accordingly, I am left with two entirely different versions of who was driving and I cannot accept one account as being more accurate, reliable and true than the other. I am left in a state of reasonable doubt in this case.
Decision
[123] Findings of not guilty are registered.
Sufficiency of Reasons for Judgment
[124] During the course of this trial, all of the witnesses' evidence, Exhibits filed, and submissions made, 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 both oral and written reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. Judgment writing time is not factored into trial time estimates. The OCJ Judges do not get judgment writing weeks like the SCJ Judges. In Halton, the fastest growing Region in Canada, judgment time is being eroded by the increasing trial case load and the pile up of long, split-up trial continuations.
[125] This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. See R. v. Vuradin 2013 SCC 38, [2013] S.C.J. No. 38; R. v. S. (T.), [2012] ONCA 289; R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Drabinsky, [2011] 107 O.R. 93; Decision-makers under new scrutiny: sufficiency of reasons and timely decision-making, David Stratas, Administrative Law Roundtable (C.I.A.J.) May 2010; 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.
Released: September 16, 2013
Signed: "Justice L.M. BALDWIN"