Court Information and Parties
Information No.: 13-1044 Newmarket Date: 20 November 2013 Ontario Court of Justice
Between: Her Majesty the Queen — and — Dan Belcan
Before: Kenkel J.
Counsel:
- Ms. Sarah Renaud for the Crown
- Mr. Ken Anders Self Represented
Judgment
Delivered November 20, 2013
Introduction
[1] Two parents travelling to Toronto to pick up their sons noticed a Mercedes SUV driving in an erratic manner. What they saw concerned them to the point where they called police and then followed the SUV with their lights flashing and honking to warn other motorists of the danger ahead. Two police cars stopped the accused's SUV and he was arrested for impaired driving.
[2] Mr. Belcan pled not guilty to the charge of Impaired Driving. He was not arraigned on the Over 80 count.
[3] As the Crown did not proceed on the second count and given the evidence at trial the Charter application was abandoned. Two issues remain: assessing the credibility of the witnesses and whether on the whole of the evidence the Crown has proven the impaired operation alleged beyond a reasonable doubt.
Evidence of Impairment
[4] Mr. Crook was driving south on Bathurst Avenue when he noticed a white SUV make an unusually slow left hand turn onto the same street ahead of him. He followed behind the SUV and made the following observations:
The SUV overcorrected from the initial turn and slightly entered the median lane which heads towards a barrier and a light standard before the driver again corrected to the proper lane
The SUV made another abnormally slow turn at 2-3 km/hr onto Highway 9
On Highway 9 the SUV crossed between the left and right lanes wandering back and forth without signalling lane changes
The SUV then drove into the centre dividing median lane where rumble strips are located and drove 300 yards with all 4 tires in that lane which is not meant for travel
Once back in the left westbound lane it continued driving erratically in and out of the lane wandering over the painted lines on both sides
The SUV failed to respond to Mr. Crook's horn honking which was meant to get the driver's attention and cause him to pull over
The SUV continued travel while followed by Mr. Crook's car with hazard lights flashing to warn other motorists
Southbound on Weston the SUV continued erratic driving, moving at times close to the shoulder then close to the median lines but within its lane
At one point on Weston while on a hill the SUV crossed 3 feet over the centre line into oncoming lanes before correcting back into the correct southbound lanes.
[5] Mrs. Crook was in the front passenger seat travelling to Toronto with her husband to pick up their sons. Her evidence as to the driving of the SUV was similar to that of her husband but less detailed as she made the phonecall to 911 and was speaking with the operator while her husband was making driving observations. She decided to call 911 when the SUV drove into the middle median lane through the rumble strips then "swerved" back into the left westbound lane and further into the right lane. She described the SUV as swerving "all over the road" at points towards oncoming traffic and at other times towards the ditch.
[6] Constable Elliot waited at an intersection to intercept the SUV. When the accused's SUV stopped at the lights PC Elliot activated his emergency lights, turned northbound parallel and beside Mr. Belcan's vehicle then swung around immediately behind him. The in-car videos show that Constable Elliot was directly behind the accused's vehicle with emergency lights activated for about 9 seconds. During that time a second police car with emergency lights activated had pulled behind and to the left of PC Elliots car.
[7] The light turned green at 17:02:30 on the video but the accused did not react or move his vehicle for 8 seconds. When Constable Elliot stepped out of his car at 17:02:38 the accused drove through the intersection and the officer gave chase with lights and now siren activated. Mr. Belcan stopped a short distance away and thereafter was co-operative with the officers.
Constable Elliot made the following observations:
A strong smell of alcohol coming from the accused's mouth
The accused's eyes were red and glossy
The accused was slow to respond to a request to produce his license
The accused's head was swaying slightly from side to side
The accused responded very slowly to the request to get out of the vehicle and he exited the vehicle slowly such that the officer felt his physical actions were delayed.
[8] Constable Elliot arrested Mr. Belcan for operating a motor vehicle while his ability to do so was impaired by reason of alcohol consumption.
[9] In cross-examination Constable Elliot agreed that there was no slurring of speech and that the accused did not fall down or show unsteadiness in his balance. The officer conceded that the description of the accused's response to direction and movements as being slow was not recorded in his memo book although he did note that he had to ask for the keys 2-3 times.
Constable Guindon responded to the call and briefly saw the SUV driving before it was stopped. From a distance she saw the SUV swerve from one side of the lane to the other on Weston Road. She agreed in cross-examination that the reference in her notes to seeing "swerving back and forth" refers to the one instance of swerving as shown in her car video. When the driver was stopped by PC Elliot, Constable Guindon noted that the accused's movements and reactions were slow or delayed. His eyes were not overly red or glassy, he was able to walk fairly well, but she did smell an odour of alcohol coming from him while he was in her cruiser. Constable Elliot agreed in cross-examination that there was no evidence of slurred speech, the need to lean on other objects for support or other signs of intoxication that police sometimes see in impaired driving investigations.
Credibility of the Witnesses
[8] The defence submits in strong terms that the civilian witnesses "did not tell the truth" and were "caught in a lie". The defence submits that the Crown's case depends largely upon the civilian evidence and that evidence should be rejected as false.
[9] The defence further submits that Constable Guindon exaggerated when she used the term "swerving" and that the most the video shows is one swerve observed at a distance. Constable Elliot's notes did not make reference to the accused's slow responses to police direction or exiting the car so no weight should be put on the officer's present recollection on those points.
[10] Considering the evidence as a whole I can find no evidence to support the assertion that the two civilian witnesses were lying to the court. The basis for the accusation seems to be in the evidence that both witnesses were directed by police to prepare statements separately then email them to the officer-in-charge. In cross-examination Mrs. Crook explained that she read over her husband's statement first, adopted the first part of his narrative that she agreed with and she then wrote the rest of her statement to explain her different role as she called and talked to 911 while her husband kept direct observations on the accused's vehicle.
[11] The Crooks did not have the help of a police officer or a lawyer to prepare their statements. I do not find it unreasonable that Mrs. Crook thought it would be alright to adopt part of her husband's narrative until the point where she became directly involved with the incident. Her statement thereafter is her own and it differs from her husband's in ways that are consistent with her position as passenger and the fact that she contacted and spoke with the 911 operator. I find that both witnesses did their best to provide proper statements without collusion as they understood it. I do not find the manner in which they wrote their initial statements could reasonably detract from the credibility of their evidence. I find there's absolutely no basis for the assertion that either one of them lied.
[12] Mr. Crook's detailed statement was prepared first and without input from his wife. I find it credible that his recollection would be detailed as he was driving at the time of observation and was keeping direct observation of the accused's SUV and all of the surrounding traffic conditions. Mrs. Crook was not driving and was contacting 911 so I do not find it surprising that her evidence is less detailed.
[13] The Crooks were sober witnesses and were in good position behind Mr. Belcan's vehicle to directly make the observations they described.
[14] Mr. and Mrs. Crook are both independent witnesses with no interest in the outcome of the case. They contacted police only after seeing erratic driving that posed a danger to the public. Their involvement caused them to have to divert away from the 400 highway and away from picking up their sons in Toronto. They have no motive to lie and both were candid, forthright witnesses. Their actions that day were a logical and consistent response to the events they described. Neither officer was able to closely observe the accused's driving beyond the short distances shown in the videos, but I find PC Guindon's observation of a swerve in the brief seconds that she saw the accused's SUV at a distance is consistent with the Crook's evidence of ongoing swerving.
[15] I find that the Crown has shown Mr. and Mrs. Crook were both credible, reliable and truthful witnesses. I accept their evidence, particularly the more detailed account of Mr. Crook.
[16] All four Crown witnesses described slowed or delayed responses by the accused. Mr. Crook noted the abnormally slow turns, the failure to correct from the rumble strip median and the failure to respond to honking and flashing lights over a distance. Constable Guindon specifically included observing slow, delayed responses by the accused in her notes. The video evidence shows Mr. Belcan did not respond to the green light at the final intersection for 8 seconds, until after the officer got out of the cruiser to speak with him.
[17] Constable Elliot testified that he found the accused's responses slow but he didn't put that point in his notes and I agree with the defence that it seems like an important detail to leave out. Given his brief contact with the accused he doesn't make many other observations beyond that. In this case though I accept his evidence on this point as it's confirmed by Constable Guindon, has some support in his note regarding repeated requests for keys, and is consistent with the observations of Mr. and Mrs. Crook about a lack of apparent awareness, abnormally slow turns and delayed response times while driving.
Has the Crown Proved Impairment as Alleged?
[18] I agree with the defence that many of the signs of the advanced state of impairment known as intoxication are not present here. The accused was able to speak without slurring his words and he was able to move without falling or holding onto objects or persons for support. There is ample evidence though that the accused's ability to operate his vehicle was impaired.
[19] Mr. Belcan's erratic driving including extended weaving within and across lanes, his overcorrections, and his driving for 300 yards in a rumble strip median lane all show a complete inability to mentally perform the most basic element of safe driving – maintaining a true and safe course on the roadway.
[20] Mr. Belcan's abnormally slow turns, his failure to react to the rumble strips for an extended distance and time, his failure to respond to the honking and flashing lights of Mr. Crook, his apparent failure to notice or respond to the police cruiser that drove directly to him then swung in behind him, his delayed reaction at that light and his delays in response to police requests all show impairment in the mental functioning necessary to safely operate a motor vehicle.
[21] There is no apparent external cause or circumstance that could explain the many driving deficits. That driving occurred over an extended distance such that there is no reasonable possibility of momentary inattention.
[22] Considering the strong smell of alcohol coming from the accused, the physical observations consistent with alcohol consumption, the accused's delayed reactions and his manner of driving I find that the only one conclusion is consistent with the evidence - the accused's impairment resulted from his consumption of alcohol.
Conclusion
[23] I find that the Crown has proved that the accused's ability to operate his vehicle was impaired by alcohol consumption as alleged. I can find no evidence or circumstance which could reasonably leave a doubt in that regard. There will be a finding of guilt.
Delivered: November 20, 2013
Justice Joseph F. Kenkel