Court File and Parties

Court File No.: Newmarket 11-09887 Date: 2013-02-28 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jonathan McTague

Before: Justice Joseph F. Kenkel

Heard on: January 7, 8, 9, February 6, 2013

Judgment Delivered: February 28, 2013

Counsel:

• Mr. Juriansz for the Crown
• Mr. De Cruz for the Accused

KENKEL J.:

INTRODUCTION

[1] Mr. McTague was charged with three counts of Impaired Driving Causing Bodily Harm and three counts of operating a vehicle with a blood alcohol level in excess of the legal limit where bodily harm was caused.

[2] One of Mr. McTague's passengers did not testify and there was no other evidence of bodily harm in relation to him so counts 2 and 5 were dismissed at the close of the Crown's case.

[3] The parties agree that the Crown has proved the accused was the driver of the car involved in the collision. The following issues were identified in submissions:

• Charter s.7 – Whether the accused's statements to police when they first arrived on scene may be relied upon to show the officer had reasonable suspicion for an Approved Screening Device (ASD) test per R. v. Soules.

• Charter s.7 – Whether Soules prohibits reference to the officer's other observations including an odour of alcohol on the accused's breath?

• Charter s.8 - Whether the Crown has shown that the officer had the required reasonable suspicion to conduct the ASD test?

• Charter s.8 – Whether the ASD fail result could be reasonably relied upon by the officer as grounds for arrest?

• Charter s.9 – Whether the investigating officer had reasonable grounds to detain Mr. McTague for an ASD test?

• Charter s.10(a) – Whether the police breached s.10(a) by failing to advise the accused at the time of arrest that he would be charged with Over 80 Causing Bodily Harm?

• Charter s.10(b) – Whether the accused's right to retain and instruct counsel was breached by the adding of the further Impaired CBH and provincial charges?

• Charter s.24(2) – If there was a Charter breach or multiple breaches, should the evidence of roadside statements, observations of the police officer, the ASD fail result and the approved instrument breath test readings all be excluded as evidence obtained in a manner that infringed a Charter right?

• If the breath test readings are otherwise admissible, has the Crown proved that the approved instrument was operated by a qualified technician?

• Has the Crown proved beyond a reasonable doubt that the accused operated a vehicle while his blood alcohol concentration was over the legal limit as alleged?

• Has the Crown proved beyond a reasonable doubt that the accused operated a motor vehicle while his ability to do so was impaired by the effects of alcohol consumption?

• If the Crown has proved impairment or a blood alcohol concentration (BAC) above the legal limit at the time of operation, was Ms. Pellegrino nevertheless the cause of her own injuries and the injury to Mr. Johnson?

COLLISION – THE WITNESSES

[4] Mr. David Johnson was the front passenger in Mr. McTague's vehicle. They'd spent the day golfing and were returning Eastbound along Major Mackenzie Drive. At the intersection of Major Mackenzie and Islington Avenue he recalls their car being in the left of two through lanes. Just as they entered into the intersection the green light turned yellow. All of the sudden a white Honda Accord hit the front of their car. He recalled that the white car turned directly in front of them as they went through the intersection.

[5] Mr. Silverstein was returning home from work along his usual route on Highway 27 when he noticed a car tailgating him. He turned right onto Major Mackenzie Drive and the same car stayed very close behind him. As they approached the intersection at Islington he saw the traffic light turn yellow and he slowed down eventually coming to a stop.

[6] Mr. Silverstein's attention was then attracted to his right, as the car that had been following close behind him moved into the second right turn through lane that opened up at that intersection. It was the rapid engine noise or "revving" of that car's engine that drew Mr. Silverstein's attention.

[7] Mr. Silverstein is familiar with car makes and models and identified that car that had followed him as a large brown or beige Buick from the late 1990's or early 2000's. That car "shot past" him on the right and sped up as it entered the intersection. The Buick then crashed into a white car that had been turning left.

[8] Ms. Quarato-Capuani was travelling Westbound on Major Mackenzie in the opposite direction to Mr. Silverstein and Mr. McTague. She was driving her 4 year old son home after a play date. At the intersection with Islington she entered the left turn lane to go South on Islington. There was a white car ahead of her in that lane. She saw the traffic light turn yellow and the Eastbound cars on Major Mackenzie come to a stop.

[9] Once the Eastbound cars had stopped the white vehicle ahead of her started her left hand turn. Ms. Quarato-Capuani did not follow as the light was a very stale yellow about to turn red. As the white car turned through the intersection it was struck by a car travelling at a fast speed from the right turn lane that extends through the intersection.

[10] Ms. Quarato-Capuani explained in cross-examination that the Eastbound cars in the left turn lane were stopped. The Eastbound cars in the centre through lane were stopped. There were 15 to 20 cars that had come to a stop at the intersection before the white car started its turn. She didn't see any cars in the Eastbound right turn lane at that point. She confirmed she would have been able to see a vehicle in the right turn lane if it had been there. The white vehicle was half way through the turn when Ms. Quarato-Capuani saw a car drive into the right turn lane and drive into the white car.

[11] Ms. Pellegrino was on her way to tutor a student when she entered the left turn lane on Major Mackenzie Westbound at Islington. She was driving a white Nissan Versa. She waited for the Eastbound cars to come to a stop on the yellow light and then she started her left turn South onto Islington. She was hit by a car travelling Eastbound in the right turn lane which extends through the intersection.

COLLISION – ANALYSIS

[12] Mr. Johnson testified that Mr. McTague was travelling normally in the left lane when another car suddenly turned directly into their path. Mr. Johnson's description of the collision is illogical and improbable. If Mr. McTague's vehicle entered the intersection on a green light in the centre through lane, directly in front of those turning left from the other direction, there would have been no reason for Ms. Pellegrino to drive into their path.

[13] Mr. Johnson and Mr. McTeague spent the day playing golf and drinking at the golf course. Mr. Johnson estimated that he had 6 beers purchased from the club via golf cart on the green. He also had two beers in his bag which he brought with him. After their golf game the group had two or three more beers in the club house just before leaving to get food and drive home. I find that the amount and timing of Mr. Johnson's drinking that day substantially detracts from the reliability of his present recollection.

[14] Given his level of drinking and his position as passenger it's not surprising that Mr. Johnson had problems recalling the details of the circumstances surrounding the collision. He did not know the posted speed in that area. He did not remember whether other cars travelling in the same direction had stopped at the intersection. He couldn't say how fast the other car was going. He didn't know if the car he was in was speeding. His responses in cross-examination show little if any memory of those events – "I can't say … I would imagine …".

[15] Mr. Johnson suffered serious injury and was taken from the scene to hospital. He was at Sunnybrook hospital for three weeks and thereafter he was sent to a rehabilitation hospital for another three weeks. He did not speak to police until shortly before the trial and he had no other notes or contemporaneous statement to aid his recollection at trial.

[16] Mr. Johnson described himself as "best friends" with Mr. McTague. He was not a neutral witness. I find his stated certainty attributing the cause of the accident to others when he's so uncertain about the surrounding details is unreliable and must be influenced by his relationship with the accused.

[17] Mr. Johnson's evidence is contradicted by the testimony of three sober drivers who had direct views of the intersection and the circumstances of the collision. The complainant and the two independent witnesses were all driving and paying attention to the traffic and the lights at Islington as they approached the intersection. All three confirm that traffic was slowing then stopping for a yellow light as they approached. All three confirm that the front car in the left turn lane and the front car in the centre through lane had stopped for the yellow prior to the white car entering the intersection.

[18] All four witnesses to the collision agreed that Mr. McTeague's car was Eastbound on Major Mackenzie as it went through the intersection. Mr. Silverstein saw Mr. McTague's vehicle move into the right turn lane which goes through the intersection before merging back into a single lane. Ms. Quarto-Capuani saw Mr. McTague's car come from that right Eastbound lane as well. Ms. Pellegrino confirmed that the cars in the oncoming left and centre lanes were stopped and although she didn't see Mr. McTeague's car until it hit her, on her evidence it must have come from that same right lane.

[19] Mr. Silverstein's evidence that McTeague's car accelerated through the intersection is supported by Ms. Quarato-Capuani's evidence and by the fact that the complainant did not see any oncoming car in the right Eastbound lane when she entered the intersection.

[20] The credible and reliable evidence of the complainant and the two independent witnesses shows that Mr. McTeague was tailgating Mr. Silverstein's car on Highway 27, continued to follow too closely across Major Mackenzie, and as the single lane expanded into left and right turn lanes at Islington he moved into the right turn lane which goes through that intersection before the road merges back into a single lane.

[21] The traffic light at Islington turned yellow well before Mr. McTeague reached the intersection such that the car directly in front of him, the car in the turn lane to the left and the other cars around him were stopping or had come to a complete stop. Rather than stop with the rest of traffic, Mr. McTeague pulled into the right turn lane and attempted to pass the stopped cars on the right and accelerate through the intersection. He drove right into Ms. Pellegrino making her turn at the end of the yellow light. This description of the collision is logical, reasonably accounts for the actions of all four drivers, and is the only conclusion consistent with the credible and reliable evidence at trial.

IMPAIRMENT

[22] Mr. De Cruz submits that despite the driving evidence many of the signs of intoxication such as swaying, loss of balance, lack of co-ordination, slurred speech are absent in this case. The defence submits that without signs of intoxication, there must be a reasonable doubt with respect to impairment.

[23] The defence submission on this point is not a correct statement of the law nor is it factually correct given the evidence in this case.

[24] Dr. Langille is a Toxicologist with the Centre of Forensic Sciences and a member of the Alcohol Test Committee established to advise Parliament in matters related to drinking and driving. He explained that driving is a complex task which requires a number of mental faculties and skills all of which are particularly sensitive to the influence of alcohol. A driver must judge speed and distance, divide his or her attention among a number of tasks, be alert to the road and traffic conditions, and respond promptly to changes, and be mentally and physically capable of operating the vehicle.

[25] The two faculties most sensitive to the effects of alcohol are divided attention and reaction time. Divided attention refers to the ability to pay attention to the roadway directly ahead while at the same time taking note of traffic signals and signs, other vehicles not directly ahead, noises such as sirens and car horns and other factors such as persons in crosswalks or standing near the roadway. Dr. Langille explained that studies have shown that the ability to monitor all of the factors necessary to operate a motor vehicle decreases at blood alcohol levels as low as 15 milligrams/100ml of blood alcohol concentration (BAC) and diminishes further as the BAC increases.

[26] Studies have also shown that reaction time is also negatively affected beginning at very low blood alcohol concentrations.

[27] Dr. Langille was asked whether there's any correlation between impairment in the ability to drive and outward signs of intoxication such as slurred speech and problems with balance. He explained that intoxication is an advanced state of impairment where balance, speech and gross motor skills are impaired by the effects of alcohol. Some experienced drinkers learn over time to control the intoxicating effects of alcohol and display an apparent tolerance such that they do not show signs of intoxication until higher BAC levels.

[28] Even experienced drinkers though cannot adapt to the effects of alcohol on mental faculties such as reaction time and divided attention tasks. Dr. Langille explained that those faculties are unconscious and are not amenable to any degree of tolerance. Thus a person's ability to operate a motor vehicle can be impaired even where the signs of intoxication are not present.

[29] As Dr. Langille mentioned, in 1951 Parliament amended the Criminal Code to replace the offence of "Driving While Intoxicated" with a lower standard, "Driving while Impaired" in response to the scientific evidence at that time showing impairment in driving ability well before the more advanced state of intoxication was reached.

[30] The Crown is not required to prove intoxication or a marked level of impairment. R. v. Stellato. Section 253(1)(a) requires that the Crown prove beyond a reasonable doubt that the accused's ability to operate a vehicle was impaired by alcohol or drug consumption. Any degree of impairment proved beyond a reasonable doubt results in a conviction. R. v. Andrews, 1996 ABCA 23.

[31] Mr. McTague's tailgating on Highway 27 and Major Mackenzie drive shows an inability to judge distance in relation to other traffic over a distance that is significant. His failure to stop along with all of the other cars around him when the yellow traffic light ended shows an inability to perceive signals and the traffic around him and react accordingly. Mr. McTague's decision to move into the right turn lane, accelerate and attempt to pass at high speed is deliberate risk taking that shows a complete lack of awareness and judgment. Although his failure to see the car turning left in front of him results in part from his attempt to pass on the right, the notion that a car might be completing such a turn at the end of a yellow at that busy intersection at that time of day is likely and foreseeable.

[32] Mr. McTague's many driving errors show impairment in judgment, perception, reaction time and the ability to manage a complex task which requires that the driver pay attention to traffic signals and other vehicles on the road. These are the very mental faculties that Dr. Langille explained were susceptible to impairment by alcohol consumption.

Even if one did not know the accused's blood alcohol concentration at the time of driving, the evidence of Mr. Johnson that Mr. McTague was drinking alcohol on the golf course and in the club house combined with the driving evidence, Dr. Langille's testimony about the complex mental task of driving and the lack of any apparent external cause for the many driving errors all lead to only one reasonable conclusion - that the accused's ability to operate his vehicle was impaired by alcohol consumption as alleged.

[33] The breath test readings confirm that finding. Dr. Langille's evidence shows that the most conservative estimate places Mr. McTague's blood alcohol level at the time of driving at 180mgs which is more than twice the legal limit. Dr. Langille's testimony makes it plain that any person with that blood alcohol level would be impaired in their ability to operate a motor vehicle regardless of their experience as a drinker.

CHARTER – s.7 and R. v. Soules

[34] The defence submits that Mr. McTague's roadside statement to the officer implied that the accused was the driver of a vehicle involved in the collision. The defence submits that the officer relied upon that admission to form grounds for the approved screening device test in breach of the accused's s.7 rights per R. v. Soules, 2011 ONCJ 292. Further, the defence submits that the principles in Soules prohibit the police from taking other investigative steps at the roadside such as making observations related to drinking and driving.

[35] In the brief initial roadside conversation the officer did not ask Mr. McTague to confirm whether he was the driver of the vehicle and there was no direct admission in that regard. This is consistent with the Constable's evidence at trial that he'd already received information identifying Mr. McTague as the driver prior to speaking with him.

[36] Constable Petola did not rely upon Mr. McTague's implied admission of driving in forming his reasonable suspicion for the ASD test or as grounds for the later arrest and approved instrument demand. Before he approached Mr. McTague he spoke to one of the witnesses on scene named Mark who directly identified Mr. McTague as the driver. Constable Petola's summary of his grounds to the breath technician makes no reference to the accused's roadside statements as conceding driving but confirms that the officer relied upon the prior information received from the witness.

[37] In the alternative, if there had been reliance upon an implied admission of driving in the roadside statement it's not plain that Soules would apply. To engage Soules the defence must show that the accused was compelled by statute to report, that the statements were an accident report pursuant to the statute and that the accused gave his report in the honest and reasonable belief that he was compelled by statute to do so.

[38] In this case there's no question that the extensive damage to both vehicles and the serious injury gave rise to a duty to report pursuant to s.199 of the Highway Traffic Act.

[39] Mr. McTague did not call police to report the accident although his evidence that he knew police would attend is credible given the very serious collision and the presence of witnesses on scene. However, when police arrived there's no evidence that he approached them to make his accident report. Constable Petola was on scene for 5 to 10 minutes before he approached Mr. McTague.

[40] Constable Petola engaged in "small talk" with Mr. McTague. He asked him where he was going and where he had come from. Mr. McTague replied that they were going to a car pool location on Major Mackenzie Drive at the 400 and that they had been golfing at Goreway. There's nothing about those questions or the responses given that reasonably could suggest to Mr. McTague that he was engaging in an accident report pursuant to statute. He was not asked for his license or insurance documents. He was not asked to provide any personal details. There's no evidence that the officer was filling out any form or making special note of this "report". Most importantly, he was not asked about his driving or the circumstances of the collision. I do not find Mr. McTague's evidence that he was giving an accident report pursuant to statutory duty to be reasonable or credible.

[41] I disagree with the defence that Soules, s.7 or s.8 of the Charter prohibit officers from making observations such as the odour of alcohol on the accused's breath. In R. v. Orbanski, 2005 SCC 37 at para.58 the Supreme Court explained that the limits that apply to evidence obtained by roadside tests or statements do not apply to observations police may make of the driver. Observations such as the odour of alcohol, slurred speech and the like are admissible at trial without violating sections 7 or 8 of the Charter.

[42] I find that the accused has failed to prove the section 7 breaches alleged.

CHARTER – s.8 and REASONABLE SUSPICION s.254(2)

[43] The defence submits that Constable Petola did not have the required reasonable suspicion for the Approved Screening Device test.

[44] Constable Petola received information from a witness that identified the accused as the driver of one of two vehicles involved in a serious collision. That witness told the officer that Mr. McTague had been travelling Eastbound on either a changing or a changed red light when he drove into the intersection and collided with the second vehicle which was turning left.

[45] Constable Petola was dispatched to the accident at 4:26 p.m. Given the very serious nature of the collision, the presence of numerous witnesses to make a timely report, the presence of EMS personnel still with injured parties on scene, the fact that one passenger had not yet been extricated by the Fire Department, the fact that none of the vehicles had yet been towed away from the busy intersection, and his experience with accident investigation times for clearing intersections and extricating passengers all led the Constable to believe that the collision had occurred less than 10 minutes prior to his dispatch at 4:26 p.m. I disagree with the defence that the fact that the officer didn't know the precise time of the collision shows he didn't turn his mind to the three hour requirement in s.254(2). I find the officer's conclusion that the collision occurred within three hours and likely within a short time prior to his dispatch to be reasonable.

[46] When he spoke with Mr. McTague Constable Petola detected an odour of alcoholic beverage on the accused's breath. He formed a reasonable suspicion that Mr. McTague had been operating a motor vehicle within the past 3 hours with alcohol in his body. I find that the Crown has proved that the officer had the required reasonable suspicion for the s.254(2) ASD test. There's no evidence of a s.8 Charter breach in relation to the screening device test.

CHARTER – s.8 and REASONABLE GROUNDS s.254(3)

[47] The defence submits that Constable Petola could not reasonably rely upon the ASD test results as grounds for the arrest and approved instrument demand as he tested the ASD device only at the start of his shift and did not retest the device throughout the shift.

[48] Constable Petola testified that he used a Draeger Alcotest 7410 GLC, an approved screening device for the test. He'd tested that device and found that it powered on normally and gave him a proper zero result on the self-test without any error codes. The device was calibrated the day before. The officer testified that the device was working properly.

[49] Constable Petola had a reasonable basis for his belief that the ASD was in working order and properly calibrated. R. v. Topaltsis

[50] I find that the Crown has proved that the ASD Fail result along with the evidence identifying the accused as the driver of one of the vehicles involved in the recent collision provided objectively reasonable grounds for the arrest of the accused and the s.254(3) demand.

CHARTER – SECTION 9

[51] The defence submits that Constable Petola did not have reasonable grounds to detain Mr. McTague for an ASD test. For the reasons set out above I find that he had reasonable grounds pursuant to s.254(2) for the brief detention required for the ASD test. The failure of that test along with the other information provided reasonable grounds for the arrest and subsequent breath test demand.

[52] I find that the defence has failed to prove the s.9 breach alleged.

CHARTER – SECTIONS 10(a) and 10(b)

[53] The defence submits there's evidence of breaches of the accused's s.10(a) and 10(b) Charter rights. The issues:

• s.10(a) – Whether Mr. McTague was properly advised at the time of his arrest of the reason for his arrest?

• s.10(b) – Whether the accused's right to retain and instruct counsel was breached by the adding of Impaired Driving Causing Bodily Harm charges and other provincial offences later in the investigation?

[54] Upon the failure of the ASD test Constable Petola testified that he arrested Mr. McTague and advised him he would be charged with Over 80 Causing Bodily Harm. Although he'd not received medical information from the hospital, given the extent of the collision, the extrication of the passenger and the removal of the other driver from the scene by ambulance, the officer reasonably concluded that bodily harm was likely involved.

[55] The defence submits that the breath technician Constable Hashemi's evidence calls into question whether the accused was arrested for Over 80 or Over 80 Causing Bodily Harm. Constable Hashemi testified that dispatch requested that he attend the station in relation to an "Over 80". He testified that PC Petola told him that the accused was arrested for "over 80". His notes also indicate that PC Petola told him that the arrest was in relation to a motor vehicle collision involving personal injury.

[56] Mr. McTague's voir dire evidence that he didn't discover his charge was Over 80 Causing Bodily Harm until his bail hearing is not credible. I find his consumption of alcohol and mental impairment that day detracts from the reliability of his recollection. His testimony as to the circumstances of the collision in cross-examination submitted on the Charter voir dire was completely contradicted by the evidence of credible witnesses at trial. If his recollection as to the central event of the collision is so flawed, I find I can place no weight on his purported memory of small details such as the exact words said to him at the time of the arrest.

[57] Constable Hashemi's notes and his personal recollection were not as detailed as Constable Petola's on this point. The fact of injury related to the collision is also present in Constable Hashemis more limited notes regarding the explanation for the arrest. I accept Constable Petola's careful evidence that he advised the accused he was being charged with Over 80 causing bodily harm.

[58] Mr. McTague knew that he'd been involved in a very serious collision and he saw the same circumstances the officer did indicating that bodily harm was very likely. He knew he'd been drinking and failed the ASD test and he was advised by the officer that he was being charged with Over 80 Causing Bodily Harm. While it's true that the medical evidence confirming the extent of the bodily harm was not received until after the breath test, there's no credible evidence that Mr. McTague was unaware of his potential jeopardy when he twice declined to speak with a lawyer.

[59] The same applies with respect to the further Impaired charges and provincial offences that were laid later in the investigation. Mr. McTague conceded in cross-examination on the Charter voir dire that he knew he was operating a vehicle without a required Interlock device and with an invalid license plate. The addition of the Impaired charge did not significantly change his jeopardy and no further investigative steps were taken.

[60] I find that the defence has failed to prove the s.10 (a) and s.10(b) breaches alleged.

CHARTER – s.24(2)

[61] As there's no evidence of a Charter breach, section 24(2) is not engaged.

[62] Given the 7 different Charter breaches alleged, this is not a case where it would be practical to provide an alternative 24(2) analysis with respect to the impact of various breaches or potential combinations of breaches.

OVER 80 - QUALIFIED TECHNICIAN

[63] Constable Babick Hashemi testified that he is a certified breath technician on the Intoxilyzer 5000C and the Intoxilyzer 8000C. He testified that he passed the course for the new 8000C in June of 2010 and was designated as a qualified technician. He stated his designation was published in the Ontario Gazette on July 24th, 2010.

[64] Mr. De Cruz ended his cross-examination of Constable Hashemi by asking him if he'd been trained by the (CFS) Centre of Forensic Sciences:

Q. And in terms of your training as a technician, did you receive training through the CFS?

A. Yes Sir.

Q. And they were the ones that qualified you?

A. Yes.

Q. No other questions Your Honour thank you.

[65] Mr. De Cruz submits that this exchange left doubt as to whether Constable Hashemi is a qualified breath technician. Because he answered "yes" to Mr. De Cruz's vague suggestion that he was "qualified" by the CFS that undermines his evidence at trial and by way of certificate that he was a qualified breath technician designated under the Criminal Code.

[66] There's no contradiction in Constable Hashemi's evidence that he was designated as a qualified technician as published in the Ontario Gazette and that he was trained by CFS and qualified by them as having passed the course. The suggestion that there's an ambiguity or contradiction in that evidence was never put to the witness.

[67] Section 17 of the Canada Evidence Act requires this court to take judicial notice of orders made by the Lieutenant Governor in Council. The Ontario Gazette in its easily searchable online version (http://www.gov.on.ca/en/ontgazette/) shows in Volume 143-30 published July 24th, 2010 that Constable Hashemi is correct - he was indeed designated as a Qualified Technician for the Intoxilyzer 8000C under the Criminal Code by the Minister of Community Safety and Correctional Services of Ontario.

[68] Discussion with counsel during submissions confirmed that the purpose of the vague question in cross-examination was indeed to lay the basis for this argument. In my view, that misleading form of questioning was improper.

OVER 80

[69] The defence has challenged the admissibility of the breath test readings on Charter grounds but does not otherwise challenge the admissibility or accuracy of those readings beyond the "qualified technician" argument referred to above. The Crown has otherwise proved the admissibility of the test readings and there is no evidence which could reasonably detract from their accuracy.

[70] Dr. Langille testified that the accused's breath test readings of 211 and 182 projected back to the time of driving indicate a conservative estimate of blood alcohol concentration (BAC) between 180 and 230 milligrams of alcohol in 100ml of blood. If the collision was earlier than the time assumed in the report the readings would be higher. Dr. Langille explained the reasonable assumptions upon which that estimate is based and the evidence supports those assumptions as providing the most conservative estimate favourable to the accused in the circumstances.

[71] I accept Dr. Langille's evidence. I find that the Crown has proved beyond a reasonable doubt that the accused's blood alcohol level was at 180 mgs of alcohol in 100ml of blood or higher at the time of driving.

CAUSATION

[72] There's no issue with respect to causation. As explained above, the Crown has proved beyond a reasonable doubt that Mr. McTague's impairment and errors in driving were the sole cause of the collision. Ms. Pellegrino was completing a left turn in a legal and safe manner and her actions did not contribute in any way to the injuries she suffered or the injuries of Mr. McTague's passenger.

CONCLUSION

[73] I find that the Crown has proved counts 1, 3, 4 and 6 beyond a reasonable doubt. There will be a finding of guilt on each count.

Delivered: February 28, 2013

Justice Joseph F. Kenkel