Court Information

Ontario Court of Justice

Date: 2015-10-27

Court File No.: Toronto 4817 998 14-15005374-00; 4817 999 14-15010181-00

Parties

Between:

Her Majesty the Queen

— and —

Matthew David Coleman

Judicial Officer and Counsel

Before: Justice R. Blouin

Heard on: August 10 and August 11, 2015

Reasons for Judgment released on: October 27, 2015

Counsel:

• Ms. Yeshe Laine — counsel for the Crown
• Mr. J. Randall Barrs — Counsel for the defendant Matthew David Coleman

BLOUIN J.:

Introduction

[1] Matthew Coleman stands charged that on April 13, 2014 he committed the companion offences of Impaired Operation and Over 80 Operation.

[2] The Crown called two civilian witnesses, and four police officers. The defendant testified, and called his friend Scott Yearwood.

[3] Mr. Barrs made it clear, both during the trial and in submissions, the two issues in this case involved the identity of the driver of the truck (the defendant denies that it was him), and the absence of proof that driving occurred within two hours of the first breath test so as to disallow the use of the presumption in s. 258(1)(c).

Crown Witnesses

Cinzia Lucente

[4] Ms. Lucente was gardening with a neighbour (Lesley McLoughlin) when a silver truck pulled into another neighbour's (Scott Yearwood) driveway at 25 Squires Ave., Toronto. Scott got out of the back seat. A "scraggly" haired man got out of the front passenger seat. Scott's son Matthew came out of the house and told the "driver" to leave. After a confrontation between father and son, wherein the mirror to the driver's truck had been broken, the driver became upset, argued with Scott Yearwood, then phoned police. The driver (wearing an orange construction shirt) was later identified as the defendant. After five minutes, the defendant got back in his truck, backed it out of the driveway, drove over a curb, and parked it on the opposite side of the street. A discussion regarding payment for damage to the mirror between the defendant and Scott Yearwood was captured in that 911 call (Exhibit 2) made by the defendant.

[5] Ms. Lucente was of the view the driver was drunk because he had problems standing up, and drove his truck over the curb. She saw the police arrive right after the truck was moved to the street. She also saw no other person dressed in an orange shirt, and was able to identify the defendant since she had interacted with him before, and had seen him "multiple times".

Lesley McLoughlin

[6] Ms. McLoughlin was with Ms. Lucente when she observed the truck pull into Scott Yearwood's driveway. She saw Scott get out of the back seat, a "scraggly" haired man get out of the front passenger seat and the driver wearing an orange construction shirt get out of the driver's side. Scott's son, Matthew, told the driver to leave the property. Scott pushed his son, and the mirror on the truck broke. She heard someone yell, "You broke my mirror". The driver then got into his vehicle, backed up out of the driveway, over the curb and parked. He then got out, stumbled, and yelled that he was going to phone the police. The police arrived five to ten minutes later. She also saw no other person, other than the driver, wearing an orange construction shirt. In cross-examination, Ms. McLoughlin was adamant it was 6:20 p.m. when she saw the silver pickup truck, and not 6:20 when the police arrived on scene.

PC Andrea Dagonas

[7] Constable Dagonas and her partner, Joshua Berry, received a radio call reporting a "person going berserk" at 6:17 and arrived at 25 Squires at 6:23. One minute later, Matthew Yearwood was arrested for Mischief.

[8] After Mr. Yearwood was placed in the scout car, Ms. McLoughlin spoke to police, identifying the defendant as the driver of the silver truck. Dagonas detected a strong odour of alcohol coming from his breath. The defendant denied driving and said that he had paid someone at a bar to drive his car home. Dagonas believed his explanation to be false and formed reasonable and probable grounds that the defendant had operated a motor vehicle just prior to police arrival, while his ability to do so was impaired.

[9] Coleman was arrested at 6:42. At 6:50 Dagonas searched the defendant's vehicle. The defendant was taken from Squires Avenue at 7:04. After arriving at 41 Division at 7:18, he was paraded, given an opportunity to consult counsel, and turned over to the Qualified Technician (Niziol) at 7:50. After reviewing the call for assistance, Dagonas became aware that it was the defendant who phoned police at approximately 6:17.

PC Niziol

[10] Constable Niziol was in the opposite end of the city when he received the call regarding his services as a Qualified Technician. He arrived at 41 Division at 7:19. After testing to satisfy himself the Intoxilyzer 8000C was in proper working order, he received the defendant at 7:50. The first sample was completed at 8:00 and registered 140 mg of alcohol per 100 ml of blood. The second reading, at 8:22, was 138 mg. At that point he spoke to the defendant (on video). The defendant admitted that he backed up the truck, but did not drive it around. When asked where he was drinking, he said at 25 Squires, and said nothing about a bar.

PC Hargreaves

[11] Constable Hargreaves arrived on scene after Dagonas and Berry. He searched the defendant and found a set of keys on him, including the key that belonged to the Ford truck. Mr. Coleman told him that he had been driving the vehicle, but that driving had been before he had been drinking.

PC Joshua Berry

[12] Berry attended 25 Squires Ave. with Dagonas in response to a "person berserk" radio call which came at 6:17. The defendant told Berry that Matthew Yearwood had broken the mirror on the truck. Yearwood was arrested for Mischief. Berry noticed that the defendant had been drinking, and that his speech was slurred. Coleman explained that he had been drinking at a bar called the Ginger Man at Victoria Park and St. Clair, and paid a stranger $20 to drive him home from the bar. The stranger's wife had transported him from the bar to Squires Ave.

Defence Witnesses

Matthew Coleman

[13] Matthew Coleman owns his own landscaping/tree cutting business. He testified that he had used the Ford truck that day for work, but did not drive it. He said he had problems with driving in the past and did not have a license, and stopped driving since seven to eight years prior. He had Richard (the person who was described by the witnesses as the "scraggly" haired man at the scene) drive the truck for work purposes.

[14] After work, the defendant and Richard went to a bar named Soca Palace at Victoria Park and St Clair; in the same plaza as the Ginger Man. Both he and Richard had a "few beers". A number of working men, dressed in orange safety gear would go to that bar. The defendant called Scott Yearwood at approximately 5:30 according to his phone clock. Because Richard had consumed beer, the defendant paid a stranger $20 to take them over to Scott's house. This man wore work clothes, including florescent orange just like the defendant. In fact, the stranger was dressed exactly like the defendant.

[15] When the defendant got out of the truck and started speaking to Scott, Matthew Yearwood ran out of the house yelling, and punched and kicked the defendant's truck. The defendant asked the stranger (who had stayed for a beer) to move the truck out of the driveway to the road, which Coleman says he did. Afterwards, the stranger called his wife to pick him up, and handed the keys to the defendant. The defendant wanted Matthew or Scott to pay for damage to the truck's mirror. Matthew then came running back out of the house so the defendant called the police. He agreed that the call was at 6:17. He was asked what time he arrived at Scott's house and said it was 5:31 and as a result, felt the truck was moved before 5:45. He probably had a few beers at the front of Scott's house before the police arrived. Coleman maintained that he did not drive that day, and had not driven in years.

[16] In reference to the videotaped interview after the breath tests, Mr. Coleman told PC Niziol that he moved the "vehicle back and out (of the driveway). I was not driving around, I backed up". The defendant explained that he was trying to tell the officer that he had the stranger back his vehicle out of the driveway, and not him.

[17] In cross-examination, the defendant agreed the confrontation with Matthew Yearwood happened minutes after his arrival at Scott's place. Matthew went back into the house for a few minutes, and when Matthew came back out and did not "stop the nonsense", he called 911. After hearing the 911 tape, where the defendant tells the operator that Matthew was down in the basement and not outside, he explained that he guessed that Matthew had gone back down to the basement.

[18] The Crown put the defendant's inconsistent position regarding whether he drove or not to Mr. Coleman:

• The defendant told the 911 operator that he had to back up the vehicle onto the road without a license. He testified that he did not know why he said that.

• The defendant told PC Niziol, the Qualified Technician, after the breath tests, that he backed the vehicle out of the driveway. He testified that he did not intentionally say he was driving. If he did, it's a misunderstanding since he was nervous. He mis-spoke. What he meant to say was that he had "him" move the truck out.

[19] The defendant testified that he stopped driving seven or eight years ago. In cross-examination he acknowledged, when presented with evidence that he had been arrested for Drive Under Suspension three weeks before this incident, and ultimately found guilty, that his evidence regarding no recent driving was not true.

[20] The defendant was also convicted of Attempt to Obstruct Justice in 2002, and Public Mischief in 2005.

[21] The defendant was asked by PC Niziol (on video) after the breath tests, when he started drinking and where. The defendant told him that he was drinking at 25 Squires Ave. and assumed he had four or five beers around "six-ish" until he was arrested. He said nothing to Niziol about drinking at the bar. In cross-examination, given that his evidence was that he arrived at 25 Squires Ave. at 5:31, he contended that his earlier time estimate was wrong.

[22] The defendant was generally inconsistent regarding where and how much he drank when his evidence was measured against his earlier declarations to police.

Scott Yearwood

[23] Mr. Yearwood has worked with the defendant and is a friend. He had been drinking during the day, probably around four to five p.m., when Coleman arrived with two other men. One of them was Coleman's driver. Yearwood did not see who was driving because he was in the house when Coleman arrived, but he knew it wasn't Coleman because his practice was to have someone else drive. Yearwood also does not know who backed the truck out of the driveway but, because he and Coleman were sitting on the porch drinking beer and Coleman never got up, it wasn't Coleman. He estimated that the defendant had been there at least an hour, maybe an hour and a half. About one half hour after the defendant's arrival, Yearwood's son damaged Coleman's truck.

[24] In cross-examination, Yearwood agreed that he was intoxicated when the police arrived. He agreed he also has neurological difficulties with his memory. He agreed he has difficultly remembering "exact events". He agreed he had no clear recollection of who backed the truck out of his driveway because he was "stoned" or "impaired" at the time, but felt it was logical that Matthew did not since he was paying someone to drive. Mr. Yearwood has a dated criminal record containing two convictions for Impaired Driving (one is Over 80).

Findings

[25] This case, like many others, depends upon my findings based on the principles set out in R. v. W.D. If I believe the defence evidence, I must acquit Mr. Coleman. Even if I don't believe the defence evidence, but it leaves me with a reasonable doubt as to his guilt, I must acquit. Finally, even if I reject the defence evidence, if a reasonable doubt is created by the evidence I do accept, I must acquit.

[26] This was not a close call. Mr. Coleman's evidence can be fully rejected. He was, to say the least, not credible. Mr. Yearwood, given his intoxicated state and other cognitive difficulties related to memory, was not reliable. In addition, he was not an unbiased witness given that the defendant was his friend. No reasonable doubt was raised by the defence evidence.

[27] Mr. Coleman admitted his evidence of not driving for seven years was untrue. He told the 911 operator he backed the car out of the driveway, and he told PC Niziol the same thing. He even went on to minimize the driving by explaining that he wasn't driving it around, and only backed it up. I find he told Niziol and the 911 operator the truth. He was also inconsistent on many other occasions regarding where and how much he drank. He was in possession of the keys to the truck upon arrest, although I appreciate that is consistent with his story. And, as if all of the above was not enough to convince a trier of fact that he was not credible, he has a criminal record for two significant offences of dishonesty (Public Mischief in 2005, Attempt to Obstruct Justice in 2002). As to the unusual occurrence of the defendant phoning the police, which eventually led to his arrest, I agree with Mr. Barrs, it does not make sense. However, many things don't make sense when anger and alcohol are involved. Lack of judgment is one indicia of impairment.

[28] As to the Crown case, I accept the evidence of the Crown witnesses and no reasonable doubt was created by it. I accept the evidence of both neighbours (Ms. Lucente and Ms. McLoughlin); they had no axe to grind. Each, on essential points, corroborated the other. They both had Scott Yearwood getting out of the rear of the truck. They both had the "scraggly" haired man getting out of the passenger door. And they both saw the defendant getting out of the driver's door. After the confrontation with Matthew Yearwood wherein the truck's mirror was broken, Ms. Lucente maintained that it was the defendant that was upset about the damage to his vehicle and who threatened to call police, which we know he did.

[29] And, the evidence of both neighbours is corroborated by the defendant himself when he admitted to police that he was driving. I find the defendant was the driver of his truck, both before and after the confrontation with Matthew Yearwood.

[30] I also conclude that the evidence of Ms. Lucente and Ms. McLoughlin as to the timing of the driving to be reliable. Ms. Lucente testified the last driving occurred just before the police arrived (6:23), and Ms. McLoughlin had the last driving to be five to ten minutes before the police arrived. Either way, on the evidence I accept, Mr. Coleman operated the vehicle after six p.m.

[31] Accordingly, since I find s. 258(1)(c) to be satisfied, the defendant is found guilty of Over 80 Operation. Regarding the Impaired count, the observed indicia of impairment by the neighbours and police vary significantly. I viewed videotape of the defendant. The observations of driving are not conclusive. While I find Mr. Coleman was probably impaired at least to a slight degree, I cannot conclude that beyond a reasonable doubt and he must be acquitted on that count.

Released: October 27, 2015

Signed: "Justice Blouin"