Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Roberto Baldassini

Counsel:

• K. Robertson for the Crown
• S. O'Connell and J. Donich for the accused Roberto Baldassini

BLOOMENFELD J.:

Factual Overview

[1] Roberto Baldassini was charged with impaired operation of a motor vehicle and driving with over 80 milligrams of alcohol in 100 millilitres of blood after crashing into a business sign and a hydro pole at 1:53 a.m. on November 2, 2013.

[2] Nobody actually saw the collision and there was no defence evidence tendered describing what happened. It was, however, conceded that Mr. Baldassini had been driving at a high rate of speed, notwithstanding the 30 or 40 kph speed limit. There was also testimony from a civilian witness, Richard Lantz, who lived in a house near the hydro pole, that he heard the sound of the impact and ran outside to offer help. Mr. Lantz found Mr. Baldassini, miraculously alive, seated on the ground, underneath a piece of wreckage from the car. There was also evidence from two paramedics and three police officers who were called to the scene, who described the twisted, misshapen metal that had been a motor vehicle, wrapped round the hydro pole and shattered into pieces. The vehicle was split in half and nearly destroyed. The paramedics and the police officers all characterized this collision as markedly serious and severe. All of the witnesses from the scene testified that they were surprised that Mr. Baldassini survived. The evidence of Mr. Lantz, the paramedics and the police officers was supported by photographs of the crash site tendered by Crown counsel. The photographs confirm comments from the witnesses that the wreckage as so extensive that it was difficult to discern whether it came from one or two vehicles.

[3] The two paramedics, Charles Labelle and Kristyn Rigby, gave evidence that Mr. Baldassini displayed indicia of alcohol consumption, including a smell of alcohol, slurred speech, giving a false name and recalcitrance about providing accurate identifying information. Mr. Baldassini was transported from the scene by ambulance to Toronto East General Hospital.

[4] Two of the police officers who were at the collision site, P.C. Jason Keefer and P.C. Michael Reeves, were detailed to go to the hospital to follow up with Mr. Baldassini. They found him in the resuscitation room, being tended to by medical personnel and having some blood drawn. P.C. Keefer smelled a faint odour of alcohol on Mr. Baldassini and he asked the supervising doctor, Dr. Dutrisac, for an extra vial of blood to be drawn for police purposes. P.C. Keefer's stated objective was to preserve the blood as evidence in the event that a search warrant was later sought, obtained and executed, should this become an impaired driving investigation. As a result, three vials of blood were drawn by nurse Marivic Ramos, two for medical use and one for the police. The third, "police vial" was handed over to P.C. Reeves. He walked the tube of blood to the hospital lab and placed it in a bag with a police seal in order to maintain its integrity and continuity if it became required for forensic testing and put the bag in a refrigerator.

[5] After the blood was taken and delivered to the lab, P.C. Reeves gave Mr. Baldassini his rights to counsel and also had further conversation with him. During this interaction with Mr. Baldassini, P.C. Reeves allegedly detected a faint smell of alcohol coming from Mr. Baldassini's breath.

[6] On November 9, 2013, D.C. Jennifer Gellel picked up what the Crown submitted was the tube of Mr. Baldassini's blood in the hospital lab and transported it to the Centre for Forensic Sciences ("CFS"). Forensic toxicology expert Patricia Solbeck examined the blood sample on November 26, 2013 in order to ensure its forensic integrity and enter it into the system. She analyzed the blood itself on November 28, 2013.

[7] Ms. Solbeck's unchallenged, expert opinion was that, if this was Mr. Baldassini's blood, his blood alcohol concentration at the time of driving would have been between 194 and 224 milligrams of alcohol in 100 millilitres of blood. That degree of blood alcohol concentration would, in Ms. Solbeck's opinion, have impaired Mr. Baldassini's ability to operate a motor vehicle.

Issues

[8] This case raised both Charter and substantive issues. The Charter challenge attacked the admissibility of the blood alcohol results on the basis of alleged violations of Mr. Baldassini's s. 8 right to be secure against unreasonable search and seizure and his s. 10(b) rights to counsel. On the trial proper, the contested issues were narrowed to two questions:

1. Did the Crown prove beyond a reasonable doubt that the blood tested by the Centre for Forensic Science was indeed Mr. Baldassini's blood? The defence conceded continuity from the point where the blood sample was dropped off at the CFS by P.C. Gellel. The defence contended, however, that the Crown had not sufficiently proven continuity of the blood sample from the time that it was drawn from Mr. Baldassini through to when P.C. Gellel delivered it to CFS.

2. If the blood samples were excluded pursuant to the Charter or if I determine that continuity had not been established, was the cumulative effect of the other evidence sufficient to prove beyond a reasonable doubt that Mr. Baldassini's ability to operate a motor vehicle was impaired by alcohol at the time of the driving?

[9] I have structured my summary of the evidence and the explanation of my reasons for the decision that I have reached according to these issues. I wish to assure all parties, however, that I have fully considered all of the evidence and submissions in this case. If I do not reiterate every detail in my summary or analysis, it is only because I am focusing on those factors most pertinent to the result.

Issue # 1 - Continuity of the Blood Sample

[10] I begin my analysis with the continuity of the blood sample because this issue significantly affects the outcome of the Charter motion and the trial proper. If the Crown has not established continuity, then the s. 8 application becomes moot. Further, if I am unable, for either continuity or Charter reasons, to rely on the blood alcohol analysis, then there must be an acquittal on the over 80 charge and I may consider only the remaining evidence in determining whether the Crown has proven the impaired driving charge beyond a reasonable doubt.

[11] The defence conceded the continuity of the blood sample once it got to the CFS, as well as the results of the testing and Ms. Solbeck's expert opinion relating the readings back to the projected time of driving. The critical, contested issue was whether the blood in the vial that Ms. Solbeck tested was actually the blood taken from Mr. Baldassini at the hospital. In other words, the defence contested the continuity of the blood sample from the time that it was drawn from Mr. Baldassini to the time that it was dropped off at the CFS. The evidence relevant to this issue came from P.C. Keefer, P.C. Reeves, Marivic Ramos, P.C. Gellel and Patricia Solbeck. As is evident from the following summary of their testimony, each of these witnesses gave a different account of how the blood was stored and / or labelled.

P.C. Keefer

[12] In the hospital resuscitation room, P.C. Keefer saw the medical staff attending to Mr. Baldassini. He smelled a faint odour of alcohol coming from Mr. Baldassini, noted that the nurses were taking blood from his arm and asked the supervising doctor, Dr. Dutrisac, for an extra vial of blood to be drawn for police purposes. As a result, three vials of blood were taken altogether, two for medical use and one for the police. P.C. Keefer's intention was to preserve the blood as evidence so that it could be seized pursuant to a warrant if the case became an impaired driving investigation. P.C. Keefer's expectation was that the blood would be seized and secured so that, at a later time, officers from 41 Division Criminal Investigation Bureau ("CIB") could follow up with a warrant to seize the blood for analysis. P.C. Keefer understood that the continuity of the blood samples would have to be maintained. The medical team took the extra blood and handed it over to P.C. Keefer's partner, P.C. Michael Reeves.

P.C. Reeves

[13] P.C. Reeves observed Ms. Ramos taking blood from Mr. Baldassini and saw the blood being put on a tray. He knew that blood was going to be an issue due to Mr. Baldassini's condition and the fact that this was a suspected impaired driving case. P.C. Reeves' understanding was that blood could play a pretty important role in the case. He was aware that an extra vial of blood was being taken for police purposes, so he watched the blood from 3:20 a.m., when it was taken from Mr. Baldassini's arm until 3:33 a.m., when he asked Dr. Dutrisac if he could have it.

[14] When he had permission from the doctor, P.C. Reeves took the extra, "police" tube of blood and put it in a biohazard bag. The biohazard bag was a clear, plastic bag, about the size of a bible, with "biohazard" printed on it in red lettering. P.C. Reeves believed that there was only one tube of blood in the bag. He sealed the biohazard bag with a police seal. The seal was marked with its unique identifying number, #1516304, P.C. Reeves' name, signature and badge number and the time of the seal and bar code stickers. P.C. Reeves could not recall if the vial itself had information on it. He knew that the hospital had printed out a bunch of "stickies" with the patient's name at triage and that one of them would have gone on the vial, but he did not know if the vial was marked in any other way. He was also unable to remember specifically whether there was a name on that particular vial.

[15] While holding the blood in his hand, P.C. Reeves gave Mr. Baldassini his rights to counsel. At approximately 3:40 a.m., P.C. Reeves asked a hospital employee to escort him to the lab because he had been told that the blood needed to be stored in the refrigerator. P.C. Reeves' purpose in personally transporting the blood to the lab was to maintain continuity of the sample. At 3:43 a.m., a lab technician showed P.C. Reeves the shelf in the refrigerator where the blood should be kept so that it would not be disturbed. The refrigerator was a "walk in fridge like a grocery store." P.C. Reeves put the blood on the top, left-hand shelf of the refrigerator with a sign on it that said, "Do not touch, police." According to P.C. Reeves' notes, the blood was put into fridge #2. He did not recall whether the two refrigerators had actual signage on them but he designated them in his notes according to where he saw them in the room, i.e. fridge # 1 on the left-hand side and fridge # 2 on the right. After leaving the blood in the refrigerator, P.C. Reeves returned to the resuscitation area. Mr. Baldassini was still in bed and the police were no longer required at the hospital, so they left.

[16] At a later date, D.C. Jennifer Gellel telephoned P.C. Reeves from the lab to ask where the blood sample was and he described its location within the refrigerator. P.C. Reeves told D.C. Gellel that the blood was contained in a biohazard bag with a police seal on it, inside the lab refrigerator on the top shelf on the left-hand side. He said that the bag was in a tray that said "Police – Do Not Touch." He did not recall whether D.C. Gellel located the blood.

Marivic Ramos

[17] Marivic Ramos was the nurse that drew blood from Mr. Baldassini at the hospital, put labels on it and gave it to the police officer and the porter to take to the lab. She drew the blood at the request of one of the doctors, Dr. Dutrisac. The police officer was also there. Ms. Ramos testified that she took three vials of blood altogether from Mr. Baldassini, two that were sent directly to the medical lab for the hospital's use via pneumatic tube and one for the police officer that was taken to the lab with the porter. The same needle was used for the third vial. Ms. Ramos could not recall precise specifics about the timing of the three blood samples. There was some gap in time between the first two samples and the third, but the entire procedure was only a couple of minutes. By the time she gave the third sample to the porter, the first two had already been sent to the lab, a process that takes maybe two minutes.

[18] When a patient is registered, identifying and other pertinent information is recorded in his or her medical chart. As soon as the blood was drawn, Ms. Ramos would, as part of her normal practice, have put pre-printed labels on the vials that matched the name on the patient's arm band. The information would have been obtained from the chart filled out on the computer at registration. The labels contained the patient's name, address, date of birth and, Ms. Ramos thought, the health card number. Labels on vials of bodily samples would all be the same except that blood sample labels would also show the kind of tube and blood test the hospital was going to use. Ms. Ramos did not recall what type of tube was used for Mr. Baldassini, nor did she specifically remember Mr. Baldassini.

[19] Ms. Ramos put the labels on Mr. Baldassini's blood samples at his bedside. The third vial of blood that was drawn for the police officer also had the name label on it. The vial was then put in a bag and the police officer and the porter walked it to the lab. Ms. Ramos remembered that the porter was a male but not his name. She also did not recall where the police officer stood in relation to her or having any conversation with him.

D.C. Gellel

[20] D.C. Gellel and her partner, D.C. Mohamed, went to the hospital and seized the blood sample from fridge # 1. D.C. Gellel had some difficulty locating the sample, originally searching in fridge # 2 after being brought there by the lab technician. P.C. Reeves had also thought the blood sample was in fridge # 2.

[21] With the help of the lab technician, D.C. Gellel found the sample in fridge # 1. The sample was in a biohazard bag with two vials inside. She saw the name "Baldassini" on the back of the bag. There was also a police seal on one of the two vials. There was no seal on the second vial. D.C. Gellel had no recollection of where on the vial the police seal was located. She described police seals generally as black and white with the individual's name, case number and a specific number on them. The biohazard bag was clear with orange writing on it. The name "Baldassini" was on the bag but there were no labels.

[22] After seizing the blood, D.C. Gellel transported it to the CFS lab for testing. It was after business hours, so she went to shipping and receiving and placed the one vial with the police seal on it in locker # R4. Because the second vial was not part of the warrant, it was returned to the hospital lab. D.C. Gellel made no note of the number on the police seal on the vial that she dropped off. She also made no note of any other information on the police seal.

Patricia Solbeck

[23] Ms. Solbeck described the two stages of analysis that she would have applied to the blood sample as the assigned toxicologist. The first stage, conducted on November 26, 2013, was to visually examine the sample to determine its suitability for analysis, and included:

• Obtaining the sample from the secure storage location, a refrigerated area accessible only with an iris scan access card;
• Making notes about the sample and evaluating aspects of it, such as whether there was enough to perform the analysis, what kind of sample, and if there were multiple specimens, which was the most appropriate for analysis;
• Returning the items to storage until needed.

Ms. Solbeck performed all of these steps and recorded them in the CFS electronic database.

[24] Ms. Solbeck's notes confirmed that she received a blood sample in a hospital tube, specifically a standard blood collection tube that would be used in a hospital or medical setting. The tube had a light green stopper and contained approximately three millilitres of blood. There were no markings on the tube. The only bar code on the tube was the one that Ms. Solbeck herself placed on it.

[25] The tube was in a plastic bag with a police seal on it bearing the same number recorded by P.C. Reeves, i.e., #1516304. Ms. Solbeck was not certain whether the bag was a biohazard bag. Other than describing it as a clear plastic bag, she did not recall what it looked like. Ms. Solbeck also did not remember whether the police seal had a bar code on it. There was only one tube in the bag.

[26] Ms. Solbeck believed that the tube of blood inside the bag was secure because the bag had been sealed. Nobody could have accessed it from the top and none of the areas of the bag had been cut open or accessed. Ms. Solbeck could not recall if the bag was Ziploc or folded, nor could she describe what the top of the bag looked like. The seal on the bag was a Toronto Police Service seal, generally long enough to secure a length of six or eight inches. Ms. Solbeck was unsure of the precise dimensions of the police seal.

[27] Ms. Solbeck concluded that the bag was "properly sealed," meaning that there was no way to access its contents with the seal intact. The integrity of the evidence was protected by the use of seals so that it could not be accessed until it was deliberately done. A proper seal would also show whether someone had tried to remove it from the packaging. The phrase "proper seal" is a specific term known within the forensic community and is used by the CFS accreditation body to describe part of the process of ensuring the integrity and protection of items submitted to the CFS.

Inconsistencies in the Evidence

[28] There were serious and material inconsistencies in the various witnesses' descriptions of the appearance of the blood in the tube and the bag, where the blood was stored and how it was identified. In particular:

The labelling and the seal on the bag:

• P.C. Reeves testified that he took one tube of blood and sealed it in a bag the size of a bible with "biohazard" written on it in red lettering and police seal # 1516304.
• D.C. Gellel testified that the blood was in a biohazard bag, clear in colour with orange insignia, with Mr. Baldassini's name on the back. Other than Mr. Baldassini's name, there was no label on the bag.
• D.C. Gellel did not recall a police seal on the bag (but she said there was a police seal on one of the vials).
• Ms. Solbeck testified that the blood sample was housed in a clear, plastic bag with a police seal on it bearing the same number recorded by P.C. Reeves, but no other markings that she could recall. Ms. Solbeck was unsure whether the bag was a biohazard bag.

The labelling on the tube:

• P.C. Reeves had no idea if the vial had a label on it specifically.
• Nurse Ramos testified that the vial of blood would have had the hospital label with Mr. Baldassini's identifying information on it.
• D.C. Gellel testified that there was a police seal on one of the two vials in the bag but she could not recall the exact location and made no note of the content of the seal, other than the fact that it had Mr. Baldassini's first and last name on it.
• Ms. Solbeck testified that the tube that she found inside the bag with the seal had no markings on it at all.

Number of tubes:

• P.C. Reeves testified that there was one vial in the bag.
• Nurse Ramos testified that only one vial of blood was set aside for police purposes. The other two went directly to the medical lab via pneumatic tube.
• D.C. Gellel testified that there were two vials of blood inside the biohazard bag in fridge # 2. One of the vials had a police seal on it and she could not recall if the second vial had any label on it. The police seal on one of the vials had a section for the name on it.

Where the blood was stored in the hospital lab:

• P.C. Reeves testified that he put the blood in fridge # 2. The labelling of the fridge numbers were his own, sequencing from left to right. He also put a sign on it that said, "Do not touch, police."
• D.C. Gellel took a blood sample from fridge # 1. Her evidence was that the fridges themselves had identifying numbers on them.

[29] The combined evidence of P.C. Keefer, P.C. Reeves and Nurse Ramos persuades me beyond a reasonable doubt that blood was drawn from Mr. Baldassini's arm and given directly to P.C. Reeves. P.C. Reeves saw the blood being taken and put on a tray and Nurse Ramos remembered giving the blood to the police officer and the porter to take to the lab. It is from that point until the blood sample reached the CFS that the evidence falls apart.

[30] Crown counsel urged me to reject the evidence of D.C. Gellel as unreliable and infer that there were two bags, one without any markings that was inserted into the biohazard bag. In her submission, the police-designated blood had been taken from Mr. Baldassini was inside that plain bag. There is no actual evidence to support this Crown theory and, in any event, there are too many material inconsistencies in the evidence of the other witnesses who handled the blood to sufficiently fill in the blanks left by D.C. Gellel's evidence. It is simply impossible to conclude with any confidence what label or seal was on the tube of blood that was taken from Mr. Baldassini, where it was stored within the hospital lab, what kind of bag it was in, how many tubes were in that bag and, ultimately, whether the blood delivered to CFS was the same blood that came from Mr. Baldassini's arm. The most compelling evidence was the identity of the numbers on the police seal described by P.C. Reeve and the numbers on the plastic bag received by Ms. Solbeck. That fact alone, however, cannot elevate the probative force of the continuity evidence to the criminal standard of proof.

[31] Crown counsel also attempted to rely on Ms. Solbeck's general expertise and her professional opinion that the bag containing the blood sample had not been opened or tampered with as circumstantial evidence that it was the same blood. While Ms. Solbeck's training and expertise are beyond question, they cannot displace, nullify or bridge the actual gaps in the evidence here. It may well be that the Crown theory, that there was another bag and D.C. Gellel originally found two samples inside a bag and took one back to the hospital, reflects what actually happened. That explanation is not entirely implausible. Without further evidence, however, it remains speculative. Accordingly, I find that I am not persuaded beyond a reasonable doubt that the blood tested by the CFS and tendered by the Crown is Mr. Baldassini's blood. I therefore cannot rely on the blood sample evidence, the s. 8 Charter application becomes moot and the over 80 charge must be dismissed.

Issue # 2 – Cumulative Effect of Other Evidence of Alcohol Impairment

[32] It is uncontroversial that Mr. Baldassini was operating a motor vehicle at the time of the collision. The question is whether the Crown has proven beyond a reasonable doubt that his ability to operate the motor vehicle was impaired by alcohol.

Positions of Counsel

[33] Crown counsel contended that the following evidence established beyond a reasonable doubt that Mr. Baldassini's ability to drive was impaired by alcohol when he collided with the hydro pole:

• Mr. Baldassini was driving at a high rate of speed, well in excess of the posted speed limit;
• The collision was spectacular and serious;
• The collision was so extreme that the car was destroyed;
• The driving conditions were good: the roads were dry, the night was clear and the road was illuminated by artificial lighting;
• Both paramedics noted an odour of alcohol on Mr. Baldassini's breath;
• Mr. Baldassini had slurred speech and seemed incoherent after the accident;
• Mr. Baldassini initially gave a false name to the paramedics and police and persisted in giving different names, misidentifying himself and failing to provide identification;
• P.C. Keefer and P.C. Reeves both noted a slight odour of alcohol on Mr. Baldassini's breath.

[34] The defence position was that the Crown had, at best, demonstrated that Mr. Baldassini was driving with alcohol in his body. The Crown had failed, however, to prove that his ability to drive was impaired by alcohol. Even the evidence of alcohol consumption was challenged on the basis that neither the civilian witness, Richard Lantz, nor the officer on scene, P.C. Ken Stratton, testified that they smelled alcohol on Mr. Baldassini. The defence suggested that, rather than indicating alcohol impairment, the collision was explicable by a reasonable inference that Mr. Baldassini had been speeding in an area where there was a bend in the road and had lost control of the car. Presumably, all other indicia consistent with alcohol impairment, such as slurred speech, providing false identifying information and incoherence would, in the defence view, be attributable to the trauma of the collision rather than alcohol consumption.

Legal Framework

[35] The test for whether an individual's ability to operate a motor vehicle is impaired by alcohol was set out definitively by the Ontario Court of Appeal in R. v. Stellato, as requiring only that the Crown demonstrate any degree of impairment, ranging from slight to great. There is no special threshold necessitating, for example, a "marked departure" from "normal" behaviour. As reiterated by the Ontario Court of Appeal in R. v. Moreno-Baches, "… if there is sufficient evidence before the court to prove that an accused's ability to drive is even slightly impaired by alcohol, the judge must find the accused guilty."

[36] Without the evidence of the blood alcohol readings, the Crown's case for impairment is circumstantial. Accordingly, in order to find Mr. Baldassini guilty, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the proven facts is that his ability to operate the motor vehicle was impaired by alcohol. The evidence must be considered cumulatively and as a whole rather than as a piecemeal evaluation of the existence or absence of individual indicia of alcohol impairment. It is also imperative to remember that alcohol consumption or intoxication alone is not sufficient; I must find beyond a reasonable doubt that Mr. Baldassini's ability to drive was impaired by alcohol. The existence of any rational, non-speculative inference is sufficient to raise a reasonable doubt.

Evidence and Factual Findings

[37] I find beyond a reasonable doubt that Mr. Baldassini's ability to operate the motor vehicle was impaired by alcohol at the time of the collision. That conclusion is based on the totality of the evidence, with the most pertinent evidence summarized as follows.

Alcohol Consumption:

[38] I accept the evidence of the Mr. Labelle, Ms. Rigby, P.C. Reeves and P.C. Keefer that Mr. Baldassini had an odour of an alcoholic beverage on his breath directly after the collision and later at the hospital. Having extensively reviewed the evidence in its entirety, I am persuaded that the failure of Mr. Lantz and P.C. Stratton to notice any smell of alcohol or specific indicia of alcohol impairment at the scene does not dilute the strength of the Crown's case.

[39] Mr. Lantz's immediate concern was Mr. Baldassini's survival, not whether he had been consuming alcohol. Summarized, Mr. Lantz testified that he was alerted to the collision when heard loud bangs outside his house and his brother screaming that something had happened. He ran out to help and saw only pieces of a car. After running around the wreckage, Mr. Lantz observed some movement in the rubble. He pulled up a panel that seemed to be a piece of the roof and saw Mr. Baldassini sitting on the ground, shoeless, surrounded by debris. Mr. Lantz was surprised to find a survivor; he had been looking for body parts. Mr. Baldassini was bleeding from the face and head and did not really answer when Mr. Lantz asked if he was okay. Mr. Lantz recalled that he "freaked out" and yelled, "Call 911." Mr. Baldassini was mumbling and could not answer questions properly. Mr. Lantz thought that perhaps he had hit his head really hard. When Mr. Baldassini tried to get up, Mr. Lantz told him to stay there. There was glass and gasoline everywhere and it was not safe to walk without shoes. Mr. Lantz, who coached hockey, thought that Mr. Baldassini may have a neck injury and therefore it was not safe to move him. The ambulance took about five to ten minutes to arrive. Mr. Lantz worried about the wait because of Mr. Baldassini's condition. While waiting for the ambulance, Mr. Baldassini stayed where Mr. Lantz had found him, on the ground in the middle of two sections of car and rubble. He alternated between sitting and lying down on the road. Mr. Lantz did not touch Mr. Baldassini because he did not want to inadvertently harm him. Mr. Lantz was not specifically asked whether he smelled alcohol coming from Mr. Baldassini. In any event, as a civilian good Samaritan focused on Mr. Baldassini's need for emergency medical assistance, it is reasonable that Mr. Lantz would not have adverted to the existence or absence of a smell of alcohol.

[40] P.C. Stratton was also not directly asked whether he smelled alcohol coming from Mr. Baldassini. He testified that he saw Mr. Baldassini was being loaded on to a stretcher. While P.C. Stratton noted that Mr. Baldassini appeared semi-conscious and incoherent, he did not make any "close" observations of Mr. Baldassini because he seemed to obviously need medical treatment. P.C. Stratton asked Mr. Baldassini's name but Mr. Baldassini was unable to answer, so P.C. Stratton just stood by and let the medical personnel treat him.

[41] In the context of the evidence in this case, the lack of any direct questions to Mr. Lantz or P.C. Stratton as to whether Mr. Baldassini smelled of alcohol reduces any negative impact of their testimony on the effect of the other evidence of alcohol impairment. The defence was certainly not obliged to question these witnesses about whether they specifically noted indicia of alcohol consumption. The burden remains completely on the Crown to establish proof of alcohol impairment beyond a reasonable doubt. The evidentiary vacuum on this point, however, counteracts the defence submission that the absence of any affirmative indication of a smell of alcohol from these two witnesses undermines the other prosecution evidence. That other evidence included testimony from all four witnesses who were close enough to make specific observations of alcohol consumption and were alert to its potential relevance to Mr. Baldassini's medical condition or the collision investigation, i.e., the two paramedics on scene and the two police officers who went to the hospital and oversaw the drawing and storage of Mr. Baldassini's blood. Paramedic Charles Labelle did not have a present recollection of the details of Mr. Baldassini's condition but his Ambulance Call Report was admitted as past recollection recorded and included a notation of a "strong smell of alcohol on breath." Mr. Labelle was not asked any questions in cross-examination about this observation. Mr. Labelle's partner, Kristyn Rigby, recalled and testified to observing a smell of alcohol. She was on scene for about fifteen minutes and was leaning right over Mr. Baldassini in the back of the ambulance while she strapped him on to the stretcher. Her evidence about the smell of alcohol was neither questioned nor impugned. P.C. Jason Keefer testified that he smelled a faint odour of alcohol coming from Mr. Baldassini's breath when he bent over him to give him his rights to counsel at the hospital. P.C. Michael Reeves also recalled a smell of alcohol coming from Mr. Baldassini at that point. Even if Mr. Lantz and P.C. Stratton had expressly testified that they smelled no alcohol, I would find as a fact that the other four witnesses did. Different individuals note and remember various facets of events differently. Here, I am persuaded beyond a reasonable doubt that there was an odour of alcohol on Mr. Baldassini's breath.

Slurring and False Identification:

[42] Both paramedics noted that Mr. Baldassini was slurring his words and distinctly and persistently refused to identify himself, initially giving them false names. He was also uncooperative and intermittently incoherent, both with the paramedics and subsequent police witnesses. While the incoherence, and even the slurring and the misidentification could potentially be explicable as sequellae of the physical or other trauma of the accident, slurring is also a classic symptom of alcohol impairment and providing false names can be evidence of compromised judgment. There was no medical or other defence evidence suggesting a physical or alternative cause for Mr. Baldassini slurring his speech and giving fake names. I find that, taken together with the other evidence, these factors provide further evidence of alcohol impairment.

The Collision:

[43] This was a single vehicle collision. The roads were dry and the driving conditions were uncomplicated. It was night but the roadway was lit with artificial lighting. The speed limit was 40 kph. Mr. Baldassini crashed into a sign and a hydro pole with such force that the vehicle was virtually destroyed and the witnesses who observed the scene were astonished that he had survived. The violence of the collision and the wreckage of the vehicle were documented, not only by eye-witness accounts, but also in the photographs tendered as exhibits. The remains of what was once a motor vehicle are shown in the photographs as a mangled mess of glass and metal wrapped around a hydro pole and scattered over the roadway. The degree of destruction suggests that Mr. Baldassini was speeding but there was no defence evidence explaining how the collision itself could be attributable to anything other than poor judgment and loss of control of the vehicle. If Mr. Baldassini was speeding, that too indicates compromised judgment. In my view, the defence contention that the collision could be completely explained by a benign combination of speeding and a bend in the road is thoroughly speculative.

[44] In R. v. Watts, Gage J. aptly explained how the circumstances of a collision may, on their own, contribute salient circumstantial evidence to proof of impairment in the absence of any other rational inference. In that case, the accused, "Watts," drove a blue Sunfire and hit a Park and Fly bus. Gage, J, wrote:

[The bus driver] was driving the bus in the far right lane at a speed of 80 km/hr. Her bus was large and brightly coloured. Officer Potter confirmed that there was artificial lighting in the area where the blue Sunfire was found. There is no indication that the driving of [the bus driver] was erratic, improper or distracting in any way.

There is no evidence that the road was slippery or that any of the weather and / or lighting conditions were affecting the operation of any other vehicles using the highway that evening.

The damage to the Blue Sunfire was not insignificant. The hood was crumpled. There was damage to the windshield. Officer Potter describes it as "substantial."

This constellation of circumstances when considered through the lens of common sense, logic and reason leads to the conclusion, in the absence of any competing explanation, that the vehicle operated by Watts violently collided with the large, relatively slow moving, brightly coloured, lawfully operated bus as a direct result of Watts either blacking out while driving as a result of excessive consumption of alcohol or from significantly diminished ability to control his motor vehicle caused by consumption of alcohol.

[45] Although there are, of course, factual distinctions between the instant case and R. v. Watts, the applicable logic is the same. Mr. Baldassini was operating his motor vehicle on a well-lit roadway with a 40 kph speed limit in safe and uncomplicated driving conditions. There was no evidence of any other traffic on the street and or of any other factors that might have distracted or adversely affected Mr. Baldassini's ability to operate his vehicle. He collided with two stationary objects, (the sign and the pole), with such force that he pulverized his motor vehicle. Taking these factors into account, the analysis in R. v. Watts is apposite: "This constellation of circumstances when considered through the lens of common sense, logic and reason leads to the conclusion, in the absence of any competing explanation," that the collision was a direct result of Mr. Baldassini "either blacking out while driving as a result of excessive consumption of alcohol or from significantly diminished ability to control his motor vehicle caused by consumption of alcohol."

Conclusion

[46] Having considered the totality of the evidence and taken into account the legal test for impaired driving and the circumstantial nature of the prosecution case, I find that the Crown has proven beyond a reasonable doubt that Mr. Baldassini was operating his motor vehicle while his ability to do so was impaired by alcohol. The evidence as a whole, including the smell of alcohol coming from Mr. Baldassini's breath, the circumstances of the collision, the slurred speech and his intransigence about providing accurate identifying information cumulatively meet the test for impaired driving. To be clear, the only rational inference to be drawn from the evidence in this case was that Mr. Baldassini was operating a motor vehicle when his ability to do so was impaired by alcohol. He therefore committed the offence of impaired driving, contrary to s. 253 of the Criminal Code.

Released: September 21, 2015

Signed: "Justice Bloomenfeld"