Court File and Parties
Court File No.: Newmarket 12-03941 Date: February 25, 2014 Ontario Court of Justice
Between: Her Majesty the Queen — and — Eric Anton Vanderlinde
Judgement
Trial April 23, 24, August 29, December 2, 2013. Judgment February 25, 2014.
Counsel: Mr. Bradley Juriansz for the Crown Mr. Jonathan Rosenthal for the accused
KENKEL J.:
Introduction
[1] Mr. Vanderlinde is charged with Impaired Operation of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code.
[2] Final submissions identified numerous issues, all focused on assessing the accuracy and credibility of witness testimony in determining whether the Crown has proved the count alleged beyond a reasonable doubt.
The Evidence
[3] Ms. Klint-Piggott had just left work and was driving home northbound on Leslie Avenue when her attention was drawn to a pickup truck travelling very slowly or stopped. She thought the pickup might turn into her lane so she slowed down but the pickup sped up and passed her "very very quickly". After the road merged to one lane each way she was behind the truck.
[4] She saw the truck swerve back and forth, over to the far right and then over to the left into the oncoming lane. The pickup slowed down and sped up but there was no traffic ahead and no apparent reason for the changes in speed. Twice the pickup went onto the shoulder beside the lane then travelled across the lane and past the divider until the whole of the vehicle was in the oncoming lane. The second time an oncoming car sounded their horn.
[5] The pickup swerved back into the northbound lane and Ms. Klint-Piggott called 911. She told the operator the make, model and license plate number of the truck. As she followed while talking to 911, the truck swerved into oncoming lanes one or two more times. As they approached Mount Albert Side Road the truck sped up much faster than the posted 80km limit so Ms. Klint-Piggott did not try to follow. Later she passed the same truck further up the road. The truck had been stopped by police so she pulled ahead and waited to speak with the officers.
[6] In cross-examination Ms. Klint-Piggott agreed that she initially thought the slowing and speeding of the truck was due to traffic ahead but she later realized that the traffic was further ahead and the truck had slowed down to a stop without any apparent external cause. It didn't appear that the slowing up and speeding down was related to traffic conditions. She disagreed with the suggestion that the accused was passing other vehicles when she saw him drive onto the wrong side of the road. The reference to passing vehicles in her email to the police referred to the driving north of Mount Albert Road as she lost sight of the truck. She did not include the observation that the truck drove onto the soft shoulder on the right side of the road in her original email statement to the police.
[7] Two officers responded to the 911 call. Constable Hodskins was northbound on Leslie responding to the possible impaired call when in his rear view mirror he saw a silver or grey pickup truck cross over the centre line of the roadway. From his right side mirror he saw that same pickup truck cross over the fog line and drive onto the right shoulder as well. He saw the truck cross over the centre line and fog lines "several times". The officer pulled over and let the truck pass him.
[8] At the intersection with Queensville Side Road the truck stopped and once the light changed to green the officer caused the truck to stop. The truck pulled over without issue.
[9] Constable Hodskins spoke with the accused who was the driver of the truck. The officer noticed that the accused's eyes were red and puffy. In his brief conversation with the accused the officer did not notice an odour of alcohol. Later, when PC Clark spoke with the accused, Constable Hodskins observed that the accused appeared unsteady, had to grab onto the side of the truck bed for balance and was swaying as he walked.
[10] In cross-examination, Constable Hodskins agreed that he did not count how many times the truck crossed over the fog line or the centre line. The truck stopped without issue for the red light and pulled over as directed once the light turned green.
[11] Constable Clark arrived at the same location a few minutes after Mr. Vanderlinde was stopped. Constable Hodskins was acting in a plain clothes capacity so he spoke with PC Clark, relayed the information he had including his brief contact with the driver and then turned the investigation over to PC Clark.
[12] Constable Clark spoke with the accused and confirmed his identity. While speaking with the accused Constable Clark noticed that the accused's eyes were "really red, bloodshot and puffy". His speech was slurred and there was an odour of alcohol in the vehicle.
[13] Constable Clark asked the accused to step out of the truck and he said the accused "slid" out. The officer testified that he had to hold onto things to get out of the car. He needed assistance to stand. The officer arrested him for impaired driving. As the accused walked back to the police car he had to steady himself on the truck bed.
[14] When the officer advised Mr. Vanderlinde of his right to consult with counsel the officer noted he was swaying back and forth and had a tough time keeping his eyes open. The accused was polite and co-operative throughout.
[15] In cross-examination Constable Clark agreed that the truck was grey in colour not gold as he had stated.
[16] Constable Clark agreed that based on initial information he'd received about the accused's driving he'd considered using an approved screening device but he changed his mind when his own observations led him to conclude he had reasonable grounds to arrest for impaired driving. The officer agreed he was mistaken as to the exact moment of arrest. His recollection that he advised the accused he was under arrest as he exited the truck was incorrect as video evidence showed that the accused was not arrested until one minute later after he'd walked behind his car and answered a few questions including one related to alcohol consumption.
[17] Constable Smockum is a qualified Intoxilyzer 8000C operator and is also qualified as a drug recognition examiner. Mr. Vanderlinde was turned over to him at 8:52 p.m. for breath testing. The officer noted that Mr. Vanderlinde had an odour of alcoholic beverage about him, his speech was heavily slurred, his eyes were red and watery, he had problems with his co-ordination and balance and he was unsteady on his feet. The officer described Mr. Vanderlinde as having been "highly intoxicated".
Right to Counsel
[18] Constable Clark called counsel on behalf of the accused at 2010h and counsel returned the call 6 minutes later. The defence submits that the accused's right to counsel was breached as the accused was placed in the cells post booking at 1949h and it was 20 minutes before the right to counsel call was made.
[19] Constable Clarke did not specifically remember what he was doing after the accused was placed in the cell but he explained that he was involved in processing the arrest. The police properly suspended their investigation until the accused spoke with a lawyer. There's no evidence of a s. 10(b) breach.
Admissibility of the Accused's Statement to the Breath Tech
[20] I find that the Crown has not proved beyond a reasonable doubt that the accused's statement to the breathalyzer technician was voluntary. The breath technician chose not to read the primary caution before taking that statement. Although I accept that a primary caution was given earlier and may well have been part of the legal advice discussed with counsel, the breath technician fairly admitted in cross-examination that the taking of the statement in this particular case was woven into the mandatory breath procedure such that it might not have been apparent to the accused that the questions and answers were voluntary and not part of the mandatory breath test requirement. While the two components were separate in the officer's mind, there remains a doubt as to whether the accused appreciated the difference.
Has the Crown Proved Impairment?
[21] Ms. Klint-Piggott followed the accused on Leslie from just south of Green Lane to the point at Mount Albert side road where the truck accelerated away. The accused's driving worried her to the point where she called 911 for help.
[22] At first Ms. Klint-Piggott explained that she thought the accused's changing speed and swerving might be caused by traffic but then she was able to see beyond the truck and she realized there wasn't traffic ahead at that point. The driving described by Ms. Klint-Piggott is highly unusual and there's no evidence that any circumstance external to the accused reasonably could account for the changes in speed or the accused's failure to maintain a true and safe course within his lane while driving.
[23] Ms. Klint-Piggott is an independent witness with no interest in the outcome of the case. She was sober at the time she made her observations and she made a contemporaneous note sent to the police via email which assisted her recollection at trial. While not every detail she described in her testimony was mentioned in her notes, she prepared them on her own and I do not find that the lack of certain details including reference to driving onto the right shoulder as opposed to swerving to the right could reasonably detract from the reliability of her evidence.
[24] Ms. Klint-Piggott described the truck she observed as a gold Tundra and the officers stopped a grey Toyota Tundra. Given the short time between the report and the police stop, the fact that the accused's vehicle was travelling in the same direction on the same road as the suspect vehicle at that time, the vehicle stopped was the same make as the witness described, the consistent unusual driving noted by both the civilian witness and the officer who stopped the truck, and the direct identification of the stopped vehicle as the one she noted earlier, I find the only reasonable inference is that the truck Ms. Klint-Piggott described is the same truck stopped by Constable Hodskins.
[25] Ms. Klint-Piggott's evidence is supported by the similar observations made by Constable Hodskins. Although he saw the accused driving further up the road the officer noted that the accused was unable to keep his vehicle within its lane. He too saw the accused's truck drive off the road to the right onto the shoulder. He also saw the accused's truck drive over the center line into the oncoming lanes several times. Although the driver was able to pull over to the side of the road without further difficulty, there is no evidence of a traffic reason or any other circumstance external to the accused to explain the deficiencies in driving.
[26] Constable Hodskins was sober and acting in a professional capacity at the time of his observations. His recollection was assisted by the notes he made at the time. His testimony at trial was consistent with his statement to PC Clark at the scene.
[27] Constable Clark described the accused sliding out of the car in an unusual manner that suggested to the officer he was intoxicated. Both officers described the accused as unsteady at that point and both noted that he grabbed the side of the truck to correct his balance. All three officers described the accused as unsteady.
[28] I agree with the defence that careful cross-examination showed that Constable Clark's notes made 3 hours after the events were poorly done. They were incorrect in certain points as to the order of events. The odour of alcohol Constable Clark recalled observing at trial was not in his notes. I agree with the defence that the lack of a note on that point is a significant omission and that the accused's roadside admission and his statement to the breath technician are not available to support the credibility of the officer's testimony on that point.
[29] Constable Hodskins did not detect an odour of alcohol but his contact with the accused was brief and in the video he mentioned to PC Clark that he had allergies at the time. In a controlled setting at the station Constable Smockum did detect an odour of alcohol coming from the accused. There's no evidence of alcohol consumption by the accused after the arrest and in that context I find Constable Clark's testimony on this point credible.
[30] The defence showed in cross-examination that the swaying referred to by the officers was to a slight degree. The accused was not intoxicated to the point where he was unable to stand and the swaying is not plain on the video. I accept the evidence of all three officers that there was some slight movement that was noticeable to them but I find it adds little to the evidence on the issue of impairment.
[31] The observation of slurred speech as described by Constables Clark and Smockum is credible as consistent and is apparent on the in-car video. The defence has tendered on consent two letters from a doctor at Sunnybrook Health Sciences Centre that indicate that Mr. Vanderlinde was examined on October 2, 2012 for tongue cancer and treated by surgery weeks later. The second letter indicates that speech can be affected by the type of tongue cancer suffered by the accused. I agree with the Crown that there is no specific medical or other evidence linking the condition observed in September of 2012 to the date of the alleged offence in May of 2012, however in this case to be cautious given the possibility of an alternate explanation, I choose to disregard the slurred speech when weighing evidence of impairment.
[32] I find that Ms. Klint-Piggott was a credible witness. Her testimony was neutral, straightforward and factual and I find the omission in her email to the Crown was reasonably explained. Her evidence was corroborated by the evidence of Constable Hodskins who observed similar deficiencies in the accused's driving further down the road. I find her evidence to be credible and reliable and I make the same finding with regards to the evidence of Constables Hodskins and Smockum.
[33] The defence has shown that Constable Clark needed his notes to refresh his recollection at trial and his notes were not well made. The notes left out an important detail and there were certain factual errors. With respect to Constable Clark's observations related to indicia of impairment, I find I can only accept those points that are confirmed by one of the other credible witnesses.
[34] Driving is a complex activity requiring not only physical skill but constant mental supervision, judgment and decision making. The evidence in this case shows that the accused was unable to maintain a true course while driving over a distance inconsistent with momentary inattention. The driving was dangerous, with erratic speed changes and driving out of the lane on both sides. There's no evidence of an external cause or circumstance that could reasonably account for any of the deficiencies observed by the witnesses.
[35] Constable Hodskins did not detect an odour of alcohol coming from the accused but his direct contact with Mr. Vanderlinde was brief. The two other officers did note an odour of alcohol coming from the accused and noted other signs of alcohol consumption including red, watery eyes and a flushed face. At the station where the breath technician had a good opportunity to observe the accused in a controlled setting he stated that the accused appeared intoxicated.
[36] The defence established that the accused was able to move at the station without issue and that the swaying observed by the officers was slight. While the accused had some control over his motor movements and balance, the evidence as a whole shows he was unable to execute the mental tasks involved in driving safely. Section 253 does not require proof that a driver is falling down drunk. Rather, any impairment in the ability to drive caused by alcohol satisfies the test. See: R. v. Stellato, [1994] SCJ No. 51. The credible evidence of Ms. Klint-Piggott and Constable Hodskins shows substantial impairment in the accused's ability to operate his vehicle.
[37] There was reference by both officers to a statement by the accused that he had diabetes. If the defence is correct that the accused's statement is admissible to prove that fact without the accused having to testify, then I find I can place little weight on a simple utterance that was not subject to cross-examination and not accompanied by any detail. There's no evidence the accused was suffering from the effects of diabetes at the time of driving and no medical assistance was requested. There's no evidence as to the effects of diabetes in relation to the impairment in driving observed and the court is not entitled to speculate in that regard.
[38] When considered as a whole, I find that the evidence at trial reasonably bears only one conclusion – that the substantial impairment in the accused's ability to drive was the result of alcohol consumption. I can find no evidence that reasonably could leave a doubt in that regard.
Conclusion
[39] I find that the Crown has proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.
Released 25 February, 2014
Justice Joseph F. Kenkel