Court File and Parties

Ontario Court of Justice

Date: 2015-08-10

Court File No.: Halton 13-3135

Between:

Her Majesty the Queen

— and —

Brock Johnson

Before: Justice Lesley M. Baldwin

Heard on: January 19, 2015; January 20, 2015; March 9, 2015

Finding of Guilt Registered on: May 13, 2015

Reasons for Finding of Guilt Released on: August 10, 2015

Counsel:

• S. Bradley and M. Ward, counsel for the Crown
• D. Martin, counsel for the defendant Brock Johnson

Judgment

BALDWIN J.:

Introduction

[1] On May 13th, 2015, I found Brock Johnson guilty of Impaired Driving and conditionally stayed the charge of Over 80 after hearing final submissions at trial.

[2] The sole issue at the end of the trial was whether the Crown had proven that Brock Johnson had been driving his car on the offence date of October 4th, 2013 in the City of Burlington.

[3] I have applied the seminal case of R. v. WD in assessing the credibility and the reliability of the evidence called at this trial. I am satisfied beyond a reasonable doubt that Brock Johnson drove his car to the Solid Gold Strip Club in Burlington just before he entered the door of that premise at 8:50 p.m. I am satisfied beyond a reasonable doubt that he became extremely intoxicated there and then drove his car away from the premise at approximately 2:15 a.m. He first drove past the home he lived in with his mother and step-father located at 662 Sheraton Road in Burlington. He then engaged in extremely reckless and dangerous driving until he was chased down by police after he fled his motor vehicle on foot at a townhouse complex located at 5058 Fairview Street in Burlington.

Summary of the Driving Evidence by Witness Raymond Gerow

[4] Mr. Gerow is 31 years of age.

[5] He was working as front door security during the evening of October 3rd, 2013, until the early morning of October 4th, 2013, at the Solid Gold Strip Club.

[6] He knows Brock Johnson because Brock Johnson has attended this premise before.

[7] Brock Johnson entered the premise at 8:50 p.m. on October 3rd. All patrons who enter this premise who appear to be aged 35 years and under have their identification scanned into an Identification system. Mr. Gerow scanned Mr. Johnson's driver's licence at that time.

[8] Mr. Gerow observed Mr. Johnson at various times in the bar drinking beer and going out the back doors to the smoking patio.

[9] At 1:45 a.m. Mr. Gerow was advised by the bar's inside security that they were cutting Mr. Johnson off from any more alcohol service because he was intoxicated.

[10] At approximately 2:00 a.m., Mr. Gerow saw Mr. Johnson going out to the back for another cigarette. Mr. Gerow and the bartender told Mr. Johnson that the doors were locked and that nobody could go in and out. The place closes at 2:30 a.m.

[11] The man Mr. Johnson originally entered the bar with left at that time. Mr. Gerow did not see where he went.

[12] Mr. Johnson came back to stay in the club. Mr. Johnson was sitting in front of the bathrooms where the club starts. He told Mr. Gerow that he was waiting for a dancer to take him home.

[13] Mr. Gerow testified that the dancer Mr. Johnson had spoken to earlier had already left. The dancer at no time agreed to give Mr. Johnson a drive home.

[14] When Mr. Johnson was told that the dancer had already left, Mr. Johnson stood up and said "That's fine, I'll leave". (Transcript January 19, 2015 p. 11).

[15] When asked how he was getting home, Mr. Johnson said "Okay, get me a cab". (p. 12) Mr. Gerow and the bartender told him that this was best given that he was intoxicated. They told him that a cab was waiting out front for him.

[16] Mr. Johnson said that he was running out to his car (which was parked in the back) to get his laptop for the cab ride home.

[17] Mr. Gerow saw the cab waiting out front for Mr. Johnson. Mr. Johnson did not re-appear, so Mr. Gerow walked through the bar and out the back door looking for him.

[18] At approximately 2:15 a.m., Mr. Gerow went down the 6 stairs to the level pavement of the back parking lot. From a distance of five feet away, he saw Mr. Johnson in his car, backing out and start to drive away from the parking lot. (p. 13 & p. 26)

[19] The car had un-tinted windows. Mr. Gerow testified that he could see right into the driver's (side). (p. 13) The car was a 2-door silver-coloured Cavalier.

[20] At this time, Mr. Gerow used his cell phone and called police to report an impaired driver.

[21] The information Mr. Gerow provided of the driver and the car was as follows:

• Brock Johnson; white male; approximately six-three; 230 pounds; well built; short brown hair; wearing a grey t-shirt; blue jeans; black shoes;
• colour of car; make and approximate year; first 3 parts of the licence plate.

[22] In cross-examination, Mr. Gerow testified that the man Mr. Johnson had initially entered the bar with had been referred to as Mr. Johnson's cousin. That man left the bar at approximately 1:45 a.m. (p. 21) Mr. Gerow described the 'cousin' as a white male.

[23] The only other person he saw Mr. Johnson talk to throughout the evening was the female dancer. He did not see Mr. Johnson talking to any other male patron at the bar. (p. 19)

[24] In order to exit the bar from the back door, you have to walk by Mr. Gerow at the front door. He keeps on eye on both doors. There is a video camera that focuses on the back door. (p. 20) There is no video coverage of the patio or the parking lot.

[25] When Mr. Gerow went out back to find Mr. Johnson, he saw Mr. Johnson in his car. The driver's side of the car was facing him. The car was 5 feet away from Mr. Gerow at the time. (p. 25)

[26] Mr. Johnson backed up toward the building, then pulled forward out of the parking lot heading toward Cooke Blvd. which leads to Plains Road.

[27] Mr. Gerow repeated that he was looking at the car straight on as it was pulling away. Mr. Johnson was the only person in the vehicle. Mr. Gerow is "completely sure" that there was nobody else in the car. Mr. Gerow could see into the entire car. (p. 27) The weather was clear at the time.

[28] In re-examination, Mr. Gerow testified that he did not see any tinted windows on the car. (p. 32)

Summary of the Driving Evidence by Witness Officer Vincent Mulholland

[29] Officer Mulholland has been employed as an officer with HRPS since 1987.

[30] He was the Acting Sergeant working the night shift from October 3rd to October 4th, 2013.

[31] He was on general patrol operating a marked police cruiser at approximately 2:16 a.m. October 4th, when he received information over the dispatch in his cruiser.

[32] The information was from Mr. Gerow, employed by Dragon Security, with the Solid Gold Strip Club on Plains Road in Burlington.

[33] Mr. Gerow was reporting an impaired driver who had left the club. The information reported was one male white, Brock Johnson; 25 years old; approximately six foot one inches tall; very muscular; up to 230 pounds; short brown hair; no facial hair; grey T-shirt; blue jeans; no tattoos; he had entered the club at 8:50 p.m. on October 3rd and his driver's licence had been scanned.

[34] The dispatcher advised that this individual was believed to reside at 662 Sheraton Road in Burlington and was believed to be operating a 2003 Chevy Cavalier, two-door, silver in colour, bearing Ontario licence plates BNHW 052.

[35] Officer Mulholland proceeded to 662 Sheraton Road arriving at 2:33 a.m. The suspect vehicle was not there. He described the weather at the time as a mild drizzle. (p. 37)

[36] Officer Mulholland knocked on the front door. Lights came on in the house and a dog was barking.

[37] Officer Mulholland had a very brief conversation with a woman, believed to be Brock Johnson's mother, who came to the door. The large dog was still barking.

[38] Officer Mulholland first heard, turned and then saw, a car travelling westbound on Sheraton Road. He walked toward the car and was approximately ten feet from it when it drove "very, very, very slowly" by the house. It was travelling no more than five to ten kilometres per hour.

[39] "The driver looked out the front driver's side window at me. Essentially, if you will, his face was almost pressing against the window. We looked directly at each other, into each other's eyes. He looked at me, I looked at him, and as the car went by I caught the first three numbers of the licence plate. It was a…silver Cavalier, two-door, and I caught the plate BNH." (p. 37)

[40] The street was illuminated by two streetlights. The lights on the cruiser were on.

[41] The man who was driving the car is Brock Johnson, the accused before the Court. Officer Mulholland testified that he is 100% certain of this identification.

[42] As Mr. Johnson drove by the house, Officer Mulholland ran to his cruiser and began to follow this car through residential streets of Burlington. Officer Mulholland did not activate his lights and siren due to a concern that the erratic driving would escalate and put the public at greater risk.

[43] Mr. Johnson was driving erratically and at high speeds up to 80 kilometres per hour. He did not stop for a stop sign on Appleby Line. He cut through a parking lot and exited out onto Fairview Street continuing eastbound while straddling the lines on the roadway.

[44] The erratic driving eventually ended when Mr. Johnson parked his car at a townhouse complex at 5058 Fairview Avenue. He fled his car on foot. Other units arrived and a foot chase led to the arrest of Brock Johnson at 2:58 a.m.

[45] In cross-examination, it was noted that the only difference in the dispatch description by Mr. Gerow, was that Mr. Johnson was wearing black dress pants and not blue jeans upon his arrest.

[46] Officer Mulholland gave more detail of the brief encounter with the woman he believed to be Brock Johnson's mother at approximately 2:30 a.m. He was on the property for approximately 2 minutes before he saw Brock Johnson driving his car slowly past the house. (pp. 59, 60, 61, 62, 80, 81, 86, 87)

Summary of the Driving Evidence by Brock Johnson

[47] Brock Johnson was 27 years of age when he testified at trial. He was 25 years of age at the time of the offence.

[48] He now lives in Hamilton and has a cleaning business.

[49] His vague and often inconsistent descriptions of the events of October 3rd were that in the morning he attended the YMCA in Hamilton to see if he would be accepted into a business course there. Mr. Johnston described this as a "business meeting". The meeting ended at 12:00 p.m., 1:00 p.m. or 2:00 p.m. (Transcript March 9, 2015 p. 3) It could have been 4:00 p.m. (p. 72)

[50] From there he drove to Shoeless Joe's which is a bar located on Brant Street in Burlington.

[51] He had lunch with his friend Ryan. He does not know how to spell Ryan's last name. He stayed at this bar until he drove to the Solid Gold Strip Club (located at the corner of Plains Road East and Cooke Blvd.)

[52] Brock Johnson could not remember what he ate at Shoeless Joe's. He thinks he only drank water. He thinks he left Shoeless Joe's at 11:00 p.m. or 10:30 p.m. and drove to Solid Gold. (pp. 4, 72)

[53] He and Ryan went to Solid Gold to celebrate his "grant into business". (p. 74)

[54] He has been to Solid Gold before. He knows Ray Gerow and he has no issues with him.

[55] Brock Johnson remembers drinking beer at Solid Gold and he remembers speaking to one of the dancers.

[56] Brock Johnson denied being cut off alcohol service at Solid Gold.

[57] Brock Johnson said that he left Solid Gold around 2:00 a.m.

[58] Brock Johnson testified that another man who looked like him and was dressed like him drove his car home and then left the car for places unknown after it was parked at the townhouse complex.

[59] "I met a person outside and I had a cigarette with him. And we got talking and I decided that it wasn't in my best interest to drive, and so he said he would be okay with driving…I don't recall his name, but I can tell you he was dressed close, if not similar, to what I was wearing." (p. 10)

[60] "I did not see him previously. But I just assume that he might have probably had a couple of drinks as well…(he) was under the influence…I didn't want to drive because I had been drinking." (pp. 21, 22)

[61] Mr. Johnson testified that this person was driving fine. There was no reckless or erratic driving.

[62] They were going to drive to his house and hang out there.

[63] When they drove past the house he saw the police cruiser and the uniformed officer. He told the man to keep driving. He thought the police were there for a domestic disturbance between his mother and step-father because they had been called to the house before. He did not want to get involved with that. The prior domestic might have been three years ago. (p. 84)

[64] The man drove into a townhouse complex. The man just left the car. Mr. Johnson does not know where the man went. Mr. Johnson got out of the passenger seat. His intention was to walk home. He started to run because it was raining hard at this time. He had no idea that police were pursing him. He had no knowledge that a police dog had been released to chase him. (pp. 25. 26) The next thing he remembers was being tackled to the ground by the police.

[65] Brock Johnson testified that he was just joking when he told the breath technician that he had multiple personality disorder. He has attention deficit disorder. He does not think he was taking any medications at the time. (pp. 42, 43)

[66] Brock Johnson testified that because of the rain and fog, the darkness and dim street lights outside his house, and the fact that his car windows are tinted with "presidential tint", there was no way that Officer Mulholland could see into his car as it drove past his house in the early morning hours of October 4th, 2013.

[67] There was extensive cross-examination on the description of, and interactions with, the stranger that Brock Johnson alleges drove his car away from the Solid Gold that morning. (references appear throughout the transcript starting at p. 46 through p. 103)

[68] I will summarize that extensive testimony by stating that the stranger looked like Mr. Johnson in physical appearance and was dressed very similar to him as well.

[69] Mr. Johnson could not say what he spoke about with this man. The conversation was just general. (p. 49) The man asked him what city he lived in and then they agreed to go back to Brock Johnson's place to hang out. (p. 50)

[70] Brock Johnson testified that because he was under the influence of alcohol and because of his ADHD condition, much of the events he was testifying to are a "blur". Some of the events he has no memory of at all. (pp. 51, 55, 57, 58)

[71] Brock Johnson testified that he directed where the stranger man should drive when they were in his car.

[72] Brock Johnson was taken through a number of photographs taken by his mother at various times well after these events. The silver Cavalier car appears to have tinted side windows. The licence plates on this car are different than at the time of the offence. Mr. Johnson stated that his plates were stolen and he had to replace them.

[73] Mr. Johnson has discussed his evidence with his mother. She told him what she is going to say in court. She told him that Officer Mulholland was abrupt, forward and aggressive with her when he was in her doorway. His mother told him that because of the tinting on his car windows there was no way that Officer Mulholland could have seen into his car's window as it drove by the house that morning.

[74] Brock Johnson could not remember telling the breath technician that he had been operating a motor vehicle – that he started driving in Aldershot – he was going home. (p. 94)

[75] Brock Johnson testified that the breath technician was just asking him random questions and he was just answering blindly. (p. 96) He was not conscious of what he was saying. (p. 99)

Testimony of Kimberly Irene Johnson

[76] She is Brock Johnson's mother. She still lives at 662 Sheraton Road in Burlington with her spouse, Brock's step-father.

[77] She stated that her spouse's name was Rob. She could not spell his last name. It may be Lebanovic or Bobanobic. (p. 104)

[78] Ms. Johnson spoke about being startled when Officer Mulholland came to her door. He just blurted out that he was going to arrest her son. She has a large guard dog and he was barking like he was supposed to.

[79] Then a car went by like they always do. The officer asked if that was her son's car and, before she could say anything, the officer rushed to his car and began to follow the car. She did not even get a chance to see the car. From where the officer was standing facing her at the doorway, there would be no way that he could see into the car.

[80] Ms. Johnson took numerous photographs depicting her house in daytime and night time. She took numerous photographs of her son's car with tinted side windows. She took photographs of the Solid Gold back parking lot.

[81] Ms. Johnson's evidence was that no witness could look into the side window of her son's car and say who was driving it.

[82] The police have attended her house before for domestic issues. Her partner was going through some mental or emotional issues at the time. She cannot say when that was. (p. 129)

Assessment of the Evidence of Who Was Driving Brock Johnson's Car

[83] I reject as fantastical and delusional the testimony of Brock Johnson that the stranger/mystery man was the driver of his car when it left the Solid Gold premise.

[84] Both Mr. Gerow and Officer Mulholland had a clear view into that car and positively identified Mr. Johnson as the sole occupant and driver. Mr. Gerow was just 5 feet away and Officer Mulholland was 10 feet away.

[85] Mr. Johnson's evidence is rife with inconsistencies as to what he did during the day and night of October 3rd. I conclude that he has no real memory of any of it. His state of intoxication was extreme. His behaviour as seen in the breath room video is erratic to the point where the faucet on the sink in there was damaged by Mr. Johnson repeatedly banging his head under it. Mr. Johnson was taken to hospital following the breath tests. His evidence in all respects is unreliable, including the issue of the "presidential tinting" on his car windows at the time of the offence.

[86] Ms. Johnson has come to court to help her son. Her evidence is also rejected as unreliable, incredible and motivated by her bias.

[87] The photographs she has taken at various times and in various conditions do not assist the Court with respect to the viewpoint of the Crown witnesses into Brock Johnson's car that night.

[88] For these reasons, a finding of guilt was registered on Impaired Driving on the last day. Mr. Johnson surrendered his driver's licence to the Court and a one-year Driving Prohibition Order was imposed. The balance of the sentence has been adjourned to August 10, 2015. A request was made for some medical information pertaining to Brock Johnson to assist with the remaining sentencing orders to be made.

Released: August 10, 2015

Signed: Justice Lesley M. Baldwin

Footnotes

[1] The evidence of impairment in this case was overwhelming. Due to the extreme effects of intoxication as seen in the breath room video, Mr. Johnson was taken to hospital by the police after the breath tests were taken. The breath test results were 156 milligrams of alcohol in 100 millilitres of blood at 4:12 a.m. and 140 at 4:38 a.m. respectively.

[2] Numerous officers were involved in the foot chase including Officers Gregory Casson and Morgan Cavallin who testified at this trial. A police dog was deployed during the chase. The dog was hit by a cruiser in the process and fortunately survived. Officer Andrew Garst was the transport Officer and the Qualified Intoxilizer Technician in this case.

In the breath room Officer Garst asked Mr. Johnson if he was ill. Mr. Johnson replied that some people would say so – that he had multiple personality disorder and bipolar – he could diagnose himself with those. (Transcript of January 20, 2015 p. 49) Mr. Johnson also said he was not taking any medication or pills of any kind.