ONTARIO COURT OF JUSTICE

Date: 2016-03-01

Court File No.: London 14-9355

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DOUGLAS DAWDY

Before: Justice A. T. McKay

Heard on: May 14 and 15, 2015 and January 19, 2016

Reasons for Judgment released on: March 1, 2016

Counsel:

• Gary Fowler, for the Crown
• Brendon Basiga, for the defendant Douglas Dawdy

MCKAY J.:

INTRODUCTION

[1] Mr. Dawdy faces criminal charges arising out of an incident which occurred in the late afternoon on June 29, 2014 in London. He was the operator of a motor vehicle which entered a parking lot and struck a vehicle. The force of that impact propelled that vehicle into a third vehicle. A crowd gathered and interacted with Mr. Dawdy. In the midst of those interactions, he suddenly left the parking lot and traveled eastbound on Dundas Street in London. He was followed by two vehicles, one containing two civilians, the other containing an off-duty police officer. The witnesses in those vehicles described Mr. Dawdy's driving as aggressive and erratic. Eventually, Mr. Dawdy's vehicle came to a stop. He was prevented from leaving the area by the off-duty police officer. A uniformed police officer arrived and arrested Mr. Dawdy. There was an altercation. Ultimately, police got control of Mr. Dawdy and took him to London Police Service headquarters. Mr. Dawdy was charged with the following offences under the Criminal Code:

1. Resist arrest, contrary to section 129(a);
2. Dangerous driving, contrary to section 249;
3. Failure to stop at the scene of an accident, contrary to section 252;
4. Operating motor vehicle while his ability to do so was impaired by a drug, contrary to section 253(1)(a).

EVIDENCE

Mi-Jeong Kim

[2] Ms. Kim testified with the aid of a Korean interpreter. She was working at a convenience store. She heard a noise outside of the store which sounded like a motor vehicle accident. She immediately went outside. A pickup truck had struck a red van, which had been pushed into her white SUV. There were a number of people around, speaking with the driver of the pickup, Mr. Dawdy. She told Mr. Dawdy not to move his vehicle. He appeared confused and did not appear to understand what was happening. She was standing right beside the driver's door of Mr. Dawdy's vehicle and never heard him say anything. Other people were also telling him not to move. Mr. Dawdy suddenly left in his vehicle and went east on Dundas Street. She described his driving patterns as abnormal. She believed that he was running away from the accident, so she took a picture of his license plate.

[3] She did not believe that the people gathered around Mr. Dawdy's truck were in immediate danger when he moved his vehicle. Most of the people were near the driver's side door. Mr. Dawdy moved his truck suddenly. People were surprised and moved away. There were people around the vehicle who would probably have been struck by the vehicle if they had not moved.

Joseph Olan

[4] Mr. Olan was standing on the sidewalk beside the parking lot when the accident occurred. He observed Mr. Dawdy's pickup truck turn into the parking lot, strike the minivan, which was then propelled into the SUV. He heard the sound of the collision. He was not paying attention to the pedestrians in the area. He pulled out his cell phone to call 911. He approached Mr. Dawdy to check on him. He was alongside Mr. Dawdy's vehicle approximately one arm's-length from Mr. Dawdy. Mr. Dawdy had his head down and was mumbling something to the effect that he should not have done this. He did not actually hear Mr. Dawdy saying anything, but was watching Mr. Dawdy's lips. He has the ability to read lips, having attended the Robarts School for the Deaf, and having taken sign language training. Mr. Dawdy was striking the back of his head as if he was angry with himself mouthing the phrase "why did I do this".

[5] Mr. Dawdy then reversed his vehicle, and left the scene traveling eastbound on Dundas Street. He vaguely recalls someone telling Mr. Dawdy to stay put when Mr. Dawdy was beginning to reverse his truck. Mr. Dawdy swerved up onto the curb one or two times when leaving the parking lot, and seemed to be struggling to get control of the vehicle in order to go onto Dundas Street. Mr. Dawdy left the scene in a hurry, but he cannot say how fast. He had a general impression that Mr. Dawdy must have been drinking or on something. That impression came from Mr. Dawdy's behaviour, body language and the way he was hitting his head, in a panic.

Robert Graham

[6] Mr. Graham was the operator of the red van which was struck by Mr. Dawdy's vehicle in the parking lot. He was exiting a coffee shop when he saw a commotion in the parking lot. He saw that his van had been struck by Mr. Dawdy's pickup truck. There were approximately half a dozen people around the vehicles. Mr. Dawdy's vehicle had suffered extensive front-end damage. People were checking on Mr. Dawdy telling him to wait there; that the police were coming. Mr. Dawdy appeared disoriented and confused. Mr. Dawdy also appeared agitated, frustrated and rambunctious, and was patting the back of his head. Mr. Dawdy put his vehicle in reverse and took off out of the parking lot and traveled eastbound on Dundas Street.

[7] When Mr. Dawdy reversed his vehicle, Mr. Graham was approximately eight feet away. There were people in front of Mr. Graham who jumped back to avoid Mr. Dawdy's truck. Mr. Dawdy was moving quite fast. In exiting the parking lot, Mr. Dawdy came close to the curb, fishtailed the truck and almost hit a tree on the boulevard before straightening the vehicle out. The vehicles tires squealed. Mr. Graham was uncertain of whether Mr. Dawdy had gone over the curb up onto the grass boulevard. Mr. Graham was of the view that Mr. Dawdy appeared to be under the influence of something; he assumed alcohol. Mr. Dawdy appeared confused, with a glassy look in his eyes and was patting the back of his head. It appeared that Mr. Dawdy could not wait to get out of the area.

Ruth-Anne Micks

[8] Ms. Micks was a passenger in a motor vehicle operated by her husband. They were westbound on Dundas Street in the late afternoon on July 29, 2014. In a parking lot adjacent to the road, she noticed a green pickup truck at 90 degrees to a red van which had been propelled on an angle into a white SUV. A number of people were standing around the vehicles involved in the accident. The collision had already occurred when she arrived by the scene. She heard someone say "you can't leave now". A woman was taking photos of the vehicles. Mr. Dawdy was sitting in the front of the pickup truck with his head in his hands. She was approximately 20 feet away from the pickup truck. Mr. Dawdy then started the pickup truck and "flew back", then pulled forward and left the parking lot eastbound on Dundas Street. She indicated that when the truck flew back, none of the people were standing behind it, "or they would have been toast".

[9] Ms. Micks indicated that the people were standing beside the red van when the pickup backed up quickly. The pickup backed onto the grass boulevard, and then "took off very erratically all the way down Dundas Street, going very fast". Her husband followed the pickup, while speaking with the 911 operator. They reached speeds of 70 km an hour while following the pickup, and then backed off because a silver pickup truck "flew past them". Dundas Street has two lanes in the eastbound direction and the pickup truck was all over the road, passing a total of 10 to 15 cars while weaving in and out between the two eastbound lanes. Eventually, the pickup truck turned onto a residential street, pulled up onto the grass boulevard and completed a U-turn, almost striking the silver pickup truck which was following it. Her husband then stopped their vehicle to watch, approximately 40 feet away from the other two vehicles. The green pickup came within a short distance of their vehicle, and then made another U-turn, and then stopped 10 feet south of them.

[10] The young man who had been operating the silver pickup truck ran to the pickup operated by Mr. Dawdy. Mr. Dawdy appeared to be preparing to start moving his vehicle again. The young man grabbed the keys and told Mr. Dawdy that he was not going anywhere. A uniformed police officer showed up at that moment. The police spoke with Mr. Dawdy outside of his vehicle. Mr. Dawdy was yelling at the police. She looked away, and when she looked back, Mr. Dawdy was on the ground and the police officer had his knee on Mr. Dawdy's back yelling at Mr. Dawdy to stop kicking him.

[11] In cross-examination, she testified that when Mr. Dawdy quickly reversed his vehicle in the parking lot where the collision occurred, Mr. Dawdy did not turn his head to check behind him. She conceded that it was possible that he might have checked his rear view mirrors. She confirmed that Mr. Dawdy was sitting in his vehicle in the parking lot with his head in his hands, and appeared to be in distress. She confirmed that while traveling eastbound on Dundas Street, Mr. Dawdy was weaving in and out of the two eastbound lanes in order to pass cars, but conceded that he had room to pass those vehicles. During the altercation at the scene of Mr. Dawdy's arrest, the police vehicle was in her line of sight, blocking her view, so she was unable to see if Mr. Dawdy actually kicked the police officer.

Roger Micks

[12] Mr. Micks is the spouse of Ruth-Anne Micks. While traveling westbound on Dundas Street, he noticed a commotion in a parking lot adjacent to the street, so he pulled into the parking lot and parked. He lowered the windows to his vehicle. There had been a collision involving three vehicles and there were approximately a dozen people around the vehicles, with more people nearby in the parking lot. He could hear people yelling, saying "don't move, don't move… don't go anywhere". It appeared that the pickup truck had struck a van, which was then pushed into a white SUV. He estimated that he had parked his vehicle approximately 25 to 50 feet away from the vehicles involved in the collision. The pickup truck operated by Mr. Dawdy reversed and then left eastbound on Dundas Street. The pickup truck was surrounded by people when it reversed and those people had to jump out of its way. It just missed hitting a person. One person jumped out of the way, but any number of people could have had to jump out of the way. Mr. Dawdy backed up very quickly, and Mr. Micks heard the pinging sound of gravel and a little squeal of tires.

[13] Mr. Dawdy sped out of the parking lot. While leaving the parking lot, Mr. Dawdy was swerving all over and drove over the curb up onto the sidewalk for a distance of five to ten feet before entering the roadway again. He followed Mr. Dawdy down Dundas Street. At one point, a light coloured pickup truck passed them and followed Mr. Dawdy. Mr. Dawdy was operating his pickup in a very erratic fashion, moving back and forth between the two eastbound lanes, passing other vehicles. At some point Mr. Dawdy turned onto a residential street. He followed, and saw Mr. Dawdy complete a U-turn and began traveling back towards him. Mr. Dawdy then performed another U-turn and pulled his vehicle over. Mr. Micks parked his vehicle to watch Mr. Dawdy. The driver of the light coloured pickup jumped out of his truck and took Mr. Dawdy's keys. A uniformed police officer arrived and took control of Mr. Dawdy, as Mr. Dawdy was again attempting to start his vehicle.

[14] The uniformed police officer pulled Mr. Dawdy out of his vehicle. Things happened quickly at that point. The police officer had Mr. Dawdy against the trunk of the police vehicle attempting to handcuff him. Mr. Dawdy was belligerent, yelling "leave me alone, get away from me". He observed Mr. Dawdy's leg come up and then saw the officer force Mr. Dawdy to the ground. The officer was saying "stop resisting me". Mr. Dawdy continued to fight the officer and the officer placed his fists in the area of Mr. Dawdy's back. Mr. Dawdy continued resisting for a long period of time, anywhere from five to 15 minutes. He was standing on the road at this point, and his view of Mr. Dawdy and the officer was unobstructed. He saw the police officer simply defending himself, putting his fist in Mr. Dawdy's back while forcing Mr. Dawdy to the ground. Other officers arrived and Mr. Dawdy was eventually placed in the police vehicle.

[15] In cross-examination, he agreed that the people in the parking lot where the collision occurred were more to the side and the front of Mr. Dawdy's vehicle than the rear. He believed that he told the police officer in his statement that a person had to jump out of the way of Mr. Dawdy's vehicle, but he might have omitted that from his statement to the police.

Brian Scott

[16] Constable Scott is a member of London Police Service. He was off duty on May 14, 2015. He was traveling eastbound on Dundas Street when he saw Mr. Dawdy's truck exit the parking lot and began traveling eastbound on Dundas Street. He noted what appeared to be fresh heavy front-end damage to Mr. Dawdy's vehicle. Mr. Dawdy was accelerating aggressively, veering in between lanes. When Mr. Dawdy initially turned on to Dundas Street, he veered across lanes, onto the sidewalk, and then back onto the roadway. Constable Scott noted two vehicles in the parking lot that Mr. Dawdy exited which had what appeared to be fresh damage.

[17] Constable Scott followed Mr. Dawdy down Dundas Street in his personal vehicle, maintaining a safe distance. He called London Police Service dispatch. Mr. Dawdy traveled at a high rate of speed, above the speed limit and made aggressive lane changes. Constable Scott noted other drivers braking aggressively to avoid collisions with Mr. Dawdy. Constable Scott noted approximately 10 to 15 vehicles around them as he followed Mr. Dawdy down Dundas Street. Mr. Dawdy turned onto a residential street and Constable Scott followed. Mr. Dawdy stopped at a three way stop sign, and Constable Scott stopped his vehicle behind Mr. Dawdy. Mr. Dawdy made an aggressive attempt at a U-turn within the intersection. The turning radius of his vehicle prevented him from making a full turn. Mr. Scott was from 10 to 20 metres away when this maneuver was attempted. Mr. Dawdy appeared to be moving around erratically in the driver seat of his truck, with twitching and jerking movements. Mr. Dawdy's driver's side window was open.

[18] Constable Scott started to get out of his vehicle. Mr. Dawdy then reversed aggressively. Mr. Scott was concerned that his own vehicle might be struck, so he moved it out of the way. Mr. Dawdy completed his U-turn and accelerated aggressively northbound. Constable Scott completed a U-turn and followed. Mr. Dawdy returned to Dundas Street, and then made another U-turn before pulling over and stopping on the side of the street. Constable Scott walked to Mr. Dawdy's vehicle and identified himself as a police officer, showing his badge and warrant card. He said to Mr. Dawdy: "London police- stop- put the vehicle in park". Mr. Dawdy was still moving in the cab of his truck, twitching, speaking incoherently and not focusing his eyes on any spot.

[19] Constable Scott reached into Mr. Dawdy's truck, and turned it off, removing the keys from the ignition. Mr. Dawdy continued to speak in an incoherent babble, not making any sense. He told Mr. Dawdy that he had been stopped because he had been in an accident, and had left the scene of the accident. Constable Bruce arrived and approached Mr. Dawdy. Constable Scott then backed away. Mr. Dawdy started the vehicle by turning the ignition switch without a key, and then put the vehicle in drive. Constable Scott was approximately one meter away when that happened. Constable Bruce reached in and placed the vehicle in park and opened the door and began to remove Mr. Dawdy from the vehicle. Mr. Dawdy's words did not make sense; they were not in the correct order and were not understandable.

[20] Constable Bruce removed Mr. Dawdy from his vehicle and took Mr. Dawdy to the rear of his police vehicle to conduct a search. Constables Willis and Benelo had arrived on scene. Mr. Dawdy was uncooperative, turning around and not following commands. He was told to lean over the police vehicle and stop turning around because the police were conducting a search. Mr. Dawdy was repeatedly noncompliant, moving his hands and attempting to turn around. Constable Willis became physically engaged with Mr. Dawdy in order to assist in controlling him. Constable Scott went to speak to witnesses and ask them to remain at the scene. At some point he saw that Constable Willis had taken Mr. Dawdy to the ground. Because he was speaking with witnesses some distance away, he did not see Mr. Dawdy being grounded.

[21] In cross-examination, he confirmed that Mr. Dawdy was essentially speaking gibberish. He indicated that Mr. Dawdy's behaviour was consistent with drug use.

Barrett Willis

[22] Constable Willis has been a member of the London Police Service since September 2002. Prior to that, he was a police officer with the St. Thomas police force. At approximately 4:45 p.m. he heard a broadcast over his police radio regarding a possible impaired driver. He immediately traveled towards the area where the vehicle had been reported, receiving radio updates along the way. He was advised that an off-duty police officer was following the subject vehicle, and received the license plate number. He arrived at the scene where Mr. Dawdy had stopped his vehicle. Mr. Dawdy's pickup truck had extensive front end damage. Upon his arrival, Constable Bruce was escorting Mr. Dawdy away from the pickup truck.

[23] Constable Willis got out of his police vehicle to assist Constable Bruce. He heard Constable Bruce advise Mr. Dawdy that he was under arrest. Mr. Dawdy was giving Constable Bruce a difficult time, attempting to pull away from him as Constable Bruce was attempting to handcuff him. He attempted to control Mr. Dawdy's left arm. They successfully got Mr. Dawdy to the nearest police cruiser. Mr. Dawdy was attempting to push himself up from the position where he was bent over the police vehicle. Mr. Dawdy continued to move his legs so Constable Willis leaned his knee into Mr. Dawdy's left leg in order to limit his mobility. Mr. Dawdy continued to attempt to twist and pull away for approximately 30 to 45 seconds. Mr. Dawdy then looked at him, broadened his stance, and then "donkey kicked" him in the testicles.

[24] Throughout this confrontation, Mr. Dawdy had been repeatedly directed to stop moving, twisting and resisting. Throughout the episode, Mr. Dawdy was grunting, making noises and comments which did not make any sense. Constable Willis could not recall the specific comments. After he was kicked in the testicles, Constable Willis "hip tossed" Mr. Dawdy on the ground. Mr. Dawdy rolled away, swinging his legs. Constable Willis delivered a knee strike to Mr. Dawdy's midsection and then forced Mr. Dawdy onto his stomach, all the while giving him commands to stop resisting. Mr. Dawdy continued to twist his hands in order to prevent the officers from handcuffing him. Mr. Dawdy grabbed two of Constable Willis' fingers bending them sideways. Constable Willis then punched Mr. Dawdy in the upper back and yelled at him to stop grabbing his fingers. They again attempted to handcuff Mr. Dawdy and for a second time, Mr. Dawdy managed to grab Constable Willis' fingers and bend them. Constable Willis delivered a second strike to Mr. Dawdy's back. Mr. Dawdy then stopped and they successfully handcuffed him.

[25] Constable Willis advised Mr. Dawdy that he was now also under arrest for assaulting a police officer. Constable Willis then made notes regarding Mr. Dawdy's appearance. He noted that Mr. Dawdy's eyes were "overly wide". Mr. Dawdy's pupils were very large and were not dilating with changes to lighting. Mr. Dawdy's behaviour was erratic and his comments did not make any sense. Constable Willis did not have any reason to believe that there was a medical issue. Given his experience in other investigations involving people under the influence of narcotics, in all of the circumstances, Constable Willis formed reasonable and probable grounds to believe that Mr. Dawdy was committing an offence under section 253 of the Criminal Code. He waited for the afternoon shift to attend the scene and take custody of Mr. Dawdy. He relayed his grounds for arrest to Constable Karam.

Darcy Bruce

[26] Constable Bruce has been with the London Police Service for more than 21 years. He received a radio call dispatching him to the incident in the parking lot. His information was that a vehicle was fleeing the scene. Constable Bruce was traveling westbound on Dundas Street towards the scene. When he arrived at the intersection of Edmonton Street, he noted a vehicle which matched the subject vehicle description parked at the side of the road. There were people outside of the truck. He stopped and parked. He was approached by a civilian, who indicated that he had the keys to Mr. Dawdy's truck. The engine to Mr. Dawdy's truck was still running, and was revving higher. Mr. Dawdy was behind the wheel. He reached in and put the vehicle in park. There were no keys in the ignition but he turned it off with the ignition switch. Brian Scott identified himself as an off-duty police officer. At that point, Constable Bruce did not know Constable Scott. He spoke briefly with Constable Scott, but his primary concern was immobilizing Mr. Dawdy's vehicle.

[27] He opened the door to Mr. Dawdy's truck and released Mr. Dawdy's seatbelt. He removed Mr. Dawdy from the vehicle while holding Mr. Dawdy's wrist. Mr. Dawdy was making comments which seemed off. He took Mr. Dawdy to his police vehicle and handcuffed him. Mr. Dawdy was incoherent, making unusual comments. Mr. Dawdy began shouting out loud "Yes Lord, O Lord" and began looking skyward. Mr. Dawdy was twitching involuntarily, unsteady on his feet and his eyes were glassy. There was no odour of alcohol, but Mr. Dawdy's speech was slurred. Mr. Dawdy was confused while being taken to the police vehicle, but at that point was not combative or resistant. At that point he had not formally arrested Mr. Dawdy because he wanted to search Mr. Dawdy before giving him his right to counsel and caution.

[28] When Constable Willis arrived, he asked Constable Willis to control Mr. Dawdy so that he could put gloves on prior to conducting the search. Mr. Dawdy began to struggle and to pull away from Constable Willis. Mr. Dawdy was also trying to manipulate his handcuffs to pull them over his wrists, so he grabbed the handcuffs and tightened them. At that point, Mr. Dawdy's mindset appeared to change and he became resistant and assaultive. Constable Bruce was standing to Mr. Dawdy's right side, behind him. Constable Willis was behind Mr. Dawdy to his left. Mr. Dawdy brought his left leg upwards behind him and struck Constable Willis in the groin. It appeared to be a deliberately delivered backwards kick. After being kicked, Constable Willis shouted out that he had been kicked, and then grounded Mr. Dawdy. Constable Bruce could not recall what else Constable Willis said; it happened quickly.

[29] Constable Willis took control of Mr. Dawdy's hand. Mr. Dawdy grabbed Constable Willis' finger. Constable Willis pulled back and struck Mr. Dawdy in the shoulder to attempt to gain control of him. Mr. Dawdy was right next to the police vehicle, so Constable Bruce had to go around the vehicle in order to get to Mr. Dawdy's right side. When he did, Mr. Dawdy stopped struggling. Constable Bruce got his gloves on, sat Mr. Dawdy upright, and conducted his search. Mr. Dawdy continued twitching and making unusual "shout outs". When he was twitching, Mr. Dawdy's eyes would open very wide and he was shouting things like "Yes Lord". Officers from the afternoon shift arrived and Constable Karam took control of Mr. Dawdy. He relayed his observations of Mr. Dawdy and his behaviour to Constable Karam.

[30] In cross-examination, he confirmed that during his initial contact with Mr. Dawdy, he believed that it was imperative he get control of Mr. Dawdy in order to stop him from going anywhere in the vehicle. He believed that Mr. Dawdy was arrestable because of leaving the scene of an accident. There was an obvious safety issue and he needed to get control of the situation before it escalated. That took priority over procedure such as the right to counsel. In his view, Mr. Dawdy was impaired.

John-Paul Karam

[31] Constable Karam has been a member of London Police Service for approximately three and a half years. He arrived at the scene of Mr. Dawdy's arrest at approximately 4:55 p.m. There were a number of officers on scene, as well as civilians. Mr. Dawdy was sitting on the curb. He approached Mr. Dawdy and cautioned him. He had previously been advised that Mr. Dawdy had been arrested for failing to remain at the accident scene, and for assaulting a police officer. Mr. Dawdy indicated that he understood, but did not wish to speak to a lawyer. At that point, Constable Karam was still speaking with other officers. Mr. Dawdy was acting very strange, taking deep gasps of air, taking intermittent breaths, with his eyes open very wide. At that point he was unable to understand Mr. Dawdy so he leaned in close to him. Mr. Dawdy was repeatedly using the Lord's name, and appeared to be having a conversation with God in which Mr. Dawdy was asking questions, and then answering those same questions. Mr. Dawdy was speaking very quickly.

[32] He advised Mr. Dawdy of the reasons for his arrest and took Mr. Dawdy to his police vehicle. Mr. Dawdy continued behaving in the same fashion as described. In response to questions, Mr. Dawdy would simply say "Yes Lord". He placed Mr. Dawdy in the rear of his police vehicle. He could not smell the odour of alcohol emanating from Mr. Dawdy. He noted that the pupils of Mr. Dawdy's eyes were extremely small. He arrested Mr. Dawdy for the additional offences of impaired driving and dangerous driving and advised him of his right to counsel and cautioned him. Mr. Dawdy indicated that he understood. Constable Karam then contacted police dispatch then requested the assistance of a drug recognition expert at headquarters. He spoke with Mr. Dawdy, who advised him that he was not under a doctor's care. Mr. Dawdy also indicated that he was not taking prescription medication. He asked Mr. Dawdy if he had consumed any illegal drugs. Mr. Dawdy responded by saying yes, and then immediately said no. He transported Mr. Dawdy to police headquarters.

[33] While traveling to police headquarters, Mr. Dawdy continually fidgeted in the back seat. Periodically, Mr. Dawdy would stare at him with his eyes extremely wide open. That would continue until Constable Karam looked back at him, at which point Mr. Dawdy would say "Yes Lord". At 5:22 p.m., Mr. Dawdy was booked into cells. Mr. Dawdy declined the opportunity to speak with legal counsel, and advised the Sergeant overseeing the book in procedure that he was taking Lorazepam, and medication for seizures and acid reflux. Constable Karam read the demand for a drug evaluation, and at 5:50 p.m. turned Mr. Dawdy's custody over to the evaluating officer, Constable Murchland.

[34] At the time of the arrest, Constable Karam had attempted to explain the drug evaluation testing, but was unable to do so because of what he characterized as Mr. Dawdy's conversation with God. At the time of the book in procedure, Mr. Dawdy's behaviour was completely different than the behaviour which he had displayed up to that point.

Emmet Murchland

[35] Constable Murchland has been a police officer since 2003. He has been designated as an evaluating officer under the Criminal Code since 2009. He is an instructor in the drug recognition expert program. On June 29, 2014, he was assigned to act as the evaluating officer for Mr. Dawdy. He had been monitoring the call details as the incident developed over his police radio. He received information that Mr. Dawdy had fled the scene of an accident, was followed by an off-duty police officer and eventually apprehended after resisting arrest and assaulting an officer. He went to London police headquarters and retrieved his drug evaluation kit. After doing so, he attended at the book in area of the cells in order to observe the process when Mr. Dawdy was booked in.

[36] During the book in process, Mr. Dawdy indicated that he takes prescribed medication and that he had taken the drug prescribed for epilepsy that morning. Mr. Dawdy indicated that he had pulled over at the coffee shop to take some Lorazepam because of pain. He indicated that when he gets back pain he can be aggressive. Constable Murchland also made observations at the book in that Mr. Dawdy's speech was incoherent at times, that his eyes were watery and bloodshot. He observed that Mr. Dawdy was twitching and soft-spoken. He noted that Mr. Dawdy indicated that he took Lorazepam for pain, but Constable Murchland's understanding was that Lorazepam is not a narcotic, rather it is a drug to treat anxiety; a central nervous system depressant. Given that, it affects the body in a way that is similar to alcohol in terms of symptoms.

[37] After the book in procedure, Mr. Dawdy was offered an opportunity to speak with counsel, which he declined. He was taken to the Breathalyzer room at approximately 5:50 p.m. for the drug evaluation. That evaluation was digitally recorded, with the recording filed as an exhibit in the trial. While in the Breathalyzer room, Mr. Dawdy indicated that he suffered an injury in a motor vehicle accident in 2010 which led to a degenerative disc problem. He also indicated that he takes Dilantin for epilepsy, Tylenol, and Lorazepam as needed. He indicated that he had not taken any Lorazepam for a couple of days, and that he had not consumed any alcohol that date.

[38] I do not propose to review every step in the drug evaluation conducted by Constable Murchland. He found that Mr. Dawdy had sustained horizontal nystagmus and a lack of smooth pursuit to the eyes. The angle of onset was approximately 40 degrees. There was a lack of convergence. Constable Murchland was of the view that his observations were consistent with the use of a central nervous system depressant. Mr. Dawdy's pulse was elevated. Mr. Dawdy estimated the passage of time a little slowly during the modified Romberg test. He performed poorly on the heel to toe walking a line test. He displayed poor balance on both legs during the one leg stand. When it came time for the test involving touching the tip of his nose with the tip of his finger, Mr. Dawdy performed much like a member of the Washington Nationals in the postseason. He went zero for six. On all six attempts at touching the tip of his nose with the tip of his finger, Mr. Dawdy was unsuccessful. Mr. Dawdy's body temperature was in the normal range, and both his blood pressure and pulse were elevated. His muscle tone was flaccid, which is consistent with use of a central nervous system depressant. During the pupilometer test, Mr. Dawdy's pupils were in the normal range in all three lighting conditions. Constable Murchland concluded that Mr. Dawdy's physical coordination was poor.

[39] During the testing, Mr. Dawdy indicated that he did not remember much about hitting the other vehicles in the parking lot. He indicated that he did recall being arrested. He also indicated that earlier that day he took prescribed medication for acid reflux, one Tylenol, and 100 mg of Dilaudin. At the conclusion of the tests, Constable Murchland concluded that Mr. Dawdy's ability to operate a motor vehicle was impaired by a drug, and he demanded a sample of Mr. Dawdy's urine. The sample was subsequently sent to the Center for Forensic Sciences. Constable Murchland's conclusion was that Mr. Dawdy was impaired by consumption of a central nervous system depressant and a central nervous system stimulant. He reached that conclusion based upon the totality of the evidence available to him, including the description of the behaviour of Mr. Dawdy prior to his arrival at the police station.

[40] Sometime later, Constable Murchland received a report from the Center of Forensic Sciences indicating that none of the drugs which had been tested for appeared in Mr. Dawdy's urine. Constable Murchland followed up and asked the Center for Forensic Sciences to specifically test for Lorazepam and Phenytoin, also known as Dilaudin. Subsequently, he received a report which confirmed the presence of both of those drugs in Mr. Dawdy's urine.

[41] In cross-examination, Constable Murchland confirmed that during the book in process, Mr. Dawdy was responsive and cooperative. He confirmed that he did not know whether epilepsy could affect the testing which he performed on Mr. Dawdy's eyes. He confirmed that during the testing, Mr. Dawdy did not appear nervous or frightened, he appeared relaxed.

Douglas Dawdy

[42] Mr. Dawdy testified that he recalls most of the events of June 29, 2014. He began the day by attending church. He followed that by going to a local restaurant for lunch. After lunch, he returned home and had a nap. He recalled taking his acid reflux medication that morning, along with 100 mg of Dilaudin. After his nap, his neighbour came to his residence in order to assist him with removing the topper from his pickup truck. The removal of the topper caused him to have back pain, a reoccurrence of injuries which he suffered in a 2010 motor vehicle accident. He then went to another location to look at a car which needed some welding done on it. He was not certain how long he was there. After he left there, he was traveling on Dundas Street. When he got to the stop light at Egerton Street, he began to experience "pain anxiety".

[43] Mr. Dawdy described "pain anxiety" as a rush which causes pain and incoherence. He pulled into a parking lot. He has only a partial memory of what occurred in the parking lot. He collided with a parked van, which was then pushed into a third vehicle. The accident caused him more pain. He recalls people being around him, but cannot recall the specifics of the interaction. After approximately five minutes, he left the parking lot. He is not certain why he did so, except that he was in a lot of pain. He then traveled down Dundas Street before turning onto a side street in order to pull over and take his prescribed Lorazepam. That drug helps take away his pain anxiety, and was prescribed for him to take on an as needed basis.

[44] When he pulled over on the side street, a man approached him and said he was a police officer. The man opened the door and pulled the keys out of his ignition. A marked police car arrived. He then got out of his vehicle. He recalls telling the police officer that he was suffering pain and that it would be a good idea to call an ambulance. The police officers then handcuffed him and threw him around. During that process, his leg came in contact with one of the officers, and the officer began yelling "assault". The officers then smashed him into the pavement of the street. Other officers arrived and they made him sit on the grass boulevard for a period of time before placing him in the police cruiser. His evidence is that he never resisted the officers, and that he was certainly not a problem. He never gave the officers a hard time, and never assaulted anyone. He does not recall his conversation with the police officer who transported him to London police headquarters because he spent most of that time praying. Mr. Dawdy does not drink alcohol and does not take illegal substances. He took his prescription medication. He has been taking Dilaudin since the age of six, and has been taking Lorazepam since 2010. During the drug evaluation, he was in pain and suffering.

[45] In cross-examination, he indicated that he normally carries the bottle containing his Lorazepam. However, he did not have it with him on the day of trial because he does not take it very much anymore. He did not think that it would be helpful for the Court to see the prescription bottle. He could not recall what the label on the bottle said, but was certain that there were no warnings on the label. He agreed that he knew at the time of the incident taking too much Lorazepam could be dangerous. He maintained that he did not take any that day.

[46] Mr. Dawdy testified that he was unable to give a medical explanation of the term "pain anxiety". He went on to say that during a pain anxiety episode, the pain is very severe and then he gets a feeling of anxiety. That is when he takes the Lorazepam. He maintained that the Canadian Back Institute had diagnosed him on June 29, 2014 as suffering pain anxiety. He maintained that he had documents with him which confirmed that diagnosis. He was given an opportunity to retrieve that documentation from counsel table. After reviewing it, he agreed that the term "pain anxiety" did not appear in the documents. He then produced the document entitled "All Body Assessment". After reviewing it, he agreed that it also did not contain the phrase "pain anxiety". He then testified that "pain anxiety" was a term that his family doctor used.

[47] Mr. Dawdy indicated that he believes that he injured himself removing the topper from his pickup truck. He indicated that he did not take Tylenol for pain relief at that point because he did not feel pain right away. With respect to the accident in the parking lot, he indicated that he could not actually recall hitting the red van because it happened a long time ago and he was in pain at the time. All that he knows for certain is that he was not intoxicated by any drugs. He was unable to recall whether his behaviour after the accident was bizarre. When asked about some of the evidence given at the first two days of trial, he indicated that he could not recall that evidence. He indicated that this is the fourth occasion in which he has been beaten by police officers for no reason. Mr. Dawdy also indicated that he told Constable Murchland that all of this happened because he was in pain. After further cross-examination, he indicated that in retrospect, he could not recall telling Constable Murchland that he was in pain and did not think that he did. However, he believed that he explained it to the arresting officer.

Video Evidence

[48] Both the book in procedure and the drug evaluation were digitally recorded, and discs containing both videos were filed as exhibits.

[49] The video of the book in procedure is of limited assistance. Mr. Dawdy does not appear to be grossly impaired. He is responsive to questions.

[50] The video of the breath room is of some, but limited assistance. The video shows that Mr. Dawdy is calm and relaxed throughout the evaluation. He does not appear to be grossly impaired. Some of the physical testing takes place off-camera, as is the practice of London Police Service. The video shows obvious balance issues on the part of Mr. Dawdy during the one leg stand test.

POSITION OF THE PARTIES

The Crown

[51] The Court heard from many witnesses regarding a drawn out series of events beginning with the collision with the parked vehicle. Both civilians and police officers witness driving and behaviour which can only be described as bizarre. The witnesses who came into contact with Mr. Dawdy were of the opinion that he was impaired. Constable Murchland conducted the drug evaluation, and concluded that the ability to operate a motor vehicle was impaired by a central nervous system depressant and a central nervous system stimulant. The evidence of Mr. Dawdy was permeated by dishonesty, and should be rejected.

The Defence

[52] The defence takes the position that there is no evidence of impairment of ability to operate a motor vehicle at the time of driving. In addition, the defence takes position that the Crown has not proven mens rea for these offences, given that Mr. Dawdy was in pain and cannot recall some of the events, and was unable to "think straight".

APPLICABLE LEGAL PRINCIPLES

[53] With respect to the resist arrest charge, the Crown must prove that Mr. Dawdy resisted a peace officer who is engaged in the execution of his duties. It is a general intent offence.

[54] In order to obtain a conviction for dangerous driving, the Crown must prove that Mr. Dawdy operated a motor vehicle in a manner that was dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle was operated and the amount of traffic at the time is or might reasonably be expected to be in that place. The Crown must prove both the actus reus and mens rea. The actus reus involves proof that, viewed objectively, Mr. Dawdy was driving in a manner that was dangerous to the public having regard to all of the circumstances. The mens rea requires proof on the basis of all of the evidence that Mr. Dawdy's conduct amounted to a marked departure from the standard of care that a reasonable person would observe in Mr. Dawdy's circumstances. If the Crown has proven objectively dangerous conduct which constitutes a marked departure from the norm, the Court must consider any evidence before it related to Mr. Dawdy's actual state of mind in order to determine whether that evidence raises a reasonable doubt about whether a reasonable person in Mr. Dawdy's position would have been aware of the risk created by his conduct. However, it is not necessary for the Crown to prove subjective mens rea.

[55] It is unnecessary for the Crown to prove that the lives or safety of others were actually endangered. The offence is proved where the Crown establishes that the driving complained of was dangerous to the public, that is, either the public actually present at the time of offence or the public which might reasonably have been expected to be in the particular vicinity at the time (R. v. Mueller, 29 C.C.C. (2d) 243).

[56] With respect to the charge of failing to stop at the scene of an accident, the Crown must prove that Mr. Dawdy had care of a motor vehicle that was involved in an accident with another vehicle, and that with intent to escape civil or criminal liability, he failed to stop to give his name and address.

[57] With respect to the impaired driving charge, the Crown must prove that Mr. Dawdy operated his motor vehicle while his ability to do so was impaired by a drug. Impairment of driving ability is a matter of fact that must be proved beyond a reasonable doubt. In order to constitute an offence, impairment does not have to reach any particular level. Evidence which establishes any degree of impairment of the ability to operate a motor vehicle is proof of an offence.

[58] No single test or observation of impairment, standing alone, is conclusive. Impairment of one's ability to drive is generally understood as meaning the alteration of one's judgment and a decrease in one's physical abilities. Proof can take many forms. Any circumstance that relates to driving ability may be considered, including: balance, comprehension, coordination, fine motor skills, judgment, physical movement, reaction times, vision and alcohol or drug consumption. Evidence of the pattern of driving is relevant. A judge is not to consider each item of evidence in isolation. The totality of the evidence must be examined to determine whether the Crown has proven the impairment.

[59] Where it is necessary to prove impairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof is met. To that extent, the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the standard of proof that the ability to drive is actually impaired. Where the evidence indicates that an accused's ability to walk, talk and perform basic tests of manual dexterity was impaired by alcohol or a drug, the logical inference may be drawn that the accused's ability to drive was also impaired. The Crown must show that considering all of the evidence heard, there can be no other reasonable conclusion than that the driver's ability to drive was impaired by alcohol or a drug.

ANALYSIS

[60] The evidence of Mr. Dawdy is self-serving, inconsistent with the evidence of other witnesses, often inconsistent internally, at times illogical, and most often simply unbelievable. At some important points in the evidence, he has no memory of what occurred. I reject his evidence.

[61] There is un-contradicted evidence from multiple witnesses that Mr. Dawdy entered the parking lot and struck a parked vehicle, propelling it into a second vehicle. Mr. Dawdy has no recollection of how that occurred. He has a vague recollection of interacting with people for approximately five minutes after the accident, and then leaving. His only stated reason for leaving was that he was in a lot of pain. I accept the evidence that Mr. Dawdy entered the parking lot and struck the vehicle. He was then surrounded by numerous people who told him not to leave; the police were on the way. I find that Mr. Dawdy appeared disoriented and confused and behaved strangely while interacting with the people in the parking lot. I accept the evidence of Joseph Olan that Mr. Dawdy was striking the back of his head and mouthing the phrase "why did I do this". I find that, notwithstanding any disorientation or confusion, Mr. Dawdy was aware that he was in an accident, and that the police were on their way to investigate. He then reversed his vehicle quickly and left the parking lot driving in an erratic fashion, including the vehicle leaving the roadway, mounting the curb and driving on the boulevard and sidewalk for a distance before returning to the roadway. He struggled to keep control of the vehicle while exiting the parking lot.

[62] There is contradictory evidence from various witnesses regarding how close people were to Mr. Dawdy's vehicle when it reversed, exactly where they were positioned and, whether or not those people were in immediate danger. The evaluation of witnesses of the degree of danger is subjective. I find that the witness who was in the best position to observe Mr. Dawdy's vehicle when it reversed was Robert Graham. Mr. Graham was approaching the rear of Mr. Dawdy's vehicle and was approximately eight feet away from it when it reversed. He testified that there were people in front of him who jumped back in order to avoid the truck. That evidence is supported by the evidence of Roger Micks, who testified that Mr. Dawdy's truck was surrounded by people and those people had to jump out of its way. Mr. Micks indicated that Mr. Dawdy's truck just missed hitting a person. Ms. Kim testified that there were people around the vehicle who probably would have been struck by the vehicle if they had not moved. I find that there were people in close proximity to Mr. Dawdy's truck when he suddenly reversed the vehicle and backed up quickly.

[63] I accept the evidence from multiple witnesses that as he traveled eastbound on Dundas Street, Mr. Dawdy was traveling at speeds up to 70 km/h in a 50 km/h zone. I accept the evidence that in order to pass other vehicles, he was aggressively weaving in and out of the two eastbound lanes, passing approximately 10 to 15 other vehicles prior to leaving Dundas Street. I accept the evidence of Brian Scott regarding the description of the driving patterns and the two U-turns performed by Mr. Dawdy after leaving Dundas Street. I accept the evidence of Constable Scott that other drivers had to brake aggressively in order to avoid collisions with Mr. Dawdy. I find that Constable Scott had reason to be concerned that, during one of the U-turns, Mr. Dawdy might collide with his vehicle. I find that Constable Scott approached Mr. Dawdy's truck, identified himself as a police officer, and removed the keys from the ignition.

[64] I accept the evidence of Constable Scott that Mr. Dawdy was speaking in an incoherent babble. I accept the evidence of Constable Bruce as to his description of how he immobilized Mr. Dawdy's vehicle and removed Mr. Dawdy from the vehicle. I accept Constable Bruce's evidence that Mr. Dawdy was incoherent and making unusual comments, looking skyward and shouting out things such as "Yes Lord, O Lord". I accept the evidence of Constables Scott, Willis, Bruce and Karam regarding their observations of Mr. Dawdy during their interactions, including twitching involuntarily, unsteadiness on his feet, and glassy eyes, eyes open very wide and generally bizarre behaviour. I accept the evidence of those officers with respect to what Mr. Dawdy said during their interactions, including the fact that Mr. Dawdy appeared to be having a conversation with God in which Mr. Dawdy would ask questions, and then supply the answers.

[65] I find that after Mr. Dawdy was removed from his vehicle, he was advised that he was under arrest. I accept the evidence of Constables Willis, Scott and Bruce and Roger Micks that Mr. Dawdy physically resisted the police efforts to handcuff him and gain control of him. I find that Mr. Dawdy deliberately kicked Constable Willis in the testicles, and that he also bent back Constable Willis' fingers while he was struggling with him.

[66] I note that Mr. Olan had the opportunity to observe Mr. Dawdy at close range in the parking lot after the accident. As a result of his observations, Mr. Olan was of the view that Mr. Dawdy "must have been drinking or on something". Constable Scott believed that Mr. Dawdy's behaviour was consistent with drug use. Constable Willis was of the view that Mr. Dawdy was under the influence of narcotics. Constable Bruce was of the view that Mr. Dawdy was impaired. The opinions of laypeople with respect to impairment are admissible.

[67] Constable Murchland is designated as an evaluating officer under the Criminal Code. After conducting a drug evaluation, he formed the opinion that Mr. Dawdy's ability to operate a motor vehicle was impaired by both a central nervous system depressant, and a central nervous system stimulant. Urine testing confirmed the presence of Lorazepam and Dilaudin in Mr. Dawdy's urine. The testing does not establish when those drugs were ingested, or the level of the drug present in Mr. Dawdy's body when he was operating the motor vehicle.

[68] As indicated, the Court must consider the totality of the evidence in order to determine whether the Crown has proven impairment of the ability to operate the motor vehicle at the time that the vehicle was being operated. The case law provides that the court should consider all observations, including but not limited to general conduct, character of speech, physical abilities and manner of driving. Evidence of bad driving alone does not provide proof of impairment. Evidence of the circumstances of an accident may be relevant to the issue of impairment.

[69] I have made findings that Mr. Dawdy was involved in a collision with a parked vehicle in a parking lot. There is no explanation for that collision. Mr. Dawdy then behaved strangely when interacting with bystanders, and then drove aggressively away from the scene of the accident, initially having difficulty controlling the vehicle while doing so. When leaving the parking lot, his vehicle mounted the boulevard and sidewalk for a period of time before returning to the roadway. When his vehicle was eventually stopped, Mr. Dawdy got into an altercation with the police. His behaviour at the scene of his arrest was bizarre. He was incoherent at times. At other times, he was looking skyward and apparently engaging in a conversation with God. In the circumstances, his general conduct and the character of his speech were bizarre. Essentially, everyone who came into close proximity to or contact with Mr. Dawdy formed the opinion that Mr. Dawdy was under the influence of drugs. After a detailed drug evaluation, Constable Murchland formed the opinion that Mr. Dawdy's ability to operate a motor vehicle was impaired by drugs.

[70] In my view, the only logical inference that can be drawn is that Mr. Dawdy voluntarily consumed a drug or combination of drugs, and his physical and mental abilities at the time of driving were significantly diminished by that consumption. I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Dawdy's ability to operate the motor vehicle was impaired by a drug at the time of operation.

[71] There is no issue that Mr. Dawdy was involved in a motor vehicle collision. He was advised to remain at the scene; that police were on the way. In spite of that, he quickly left the scene of the accident without leaving his name or address. I infer that he did so intentionally in order to escape criminal or civil liability. The Crown has proven charge of leaving the scene of an accident.

[72] I have accepted the evidence of the police officers and Roger Micks as to what transpired after Mr. Dawdy's arrest. Police officers had validly arrested him. Therefore, they were in the execution of their duty when Mr. Dawdy physically resisted the officers during the execution of the arrest. The Crown has proven the resist arrest charge beyond a reasonable doubt.

[73] With respect to the dangerous driving charge, I begin by examining whether the Crown has proven the actus reus; specifically whether an objective view of the evidence establishes that Mr. Dawdy was driving in a manner that was dangerous to the public having regard to all of the circumstances. The incident occurred over a period of time spanning approximately 4:30 PM to 5 PM. It began in the parking lot of a strip mall, and continued down Dundas Street, a major artery in the city of London which begins in the east end and cuts its way through the middle of the city to the downtown core. In those locations, at that time of day, one can expect significant numbers of pedestrians in parking lots and on sidewalks, along with significant numbers of other vehicles on the roadway.

[74] For some unexplained reason, Mr. Dawdy pulled into the parking lot of the strip mall and collided with a parked vehicle. A number of people attended in close proximity to his truck. There is some conflicting evidence as to exactly where people were standing in proximity to the truck. However, there is un-contradicted evidence that people were in close proximity to the truck. After a short period of time, Mr. Dawdy reversed the truck rapidly. Ms. Kim testified that people had to move or they would have been struck by the truck. Mr. Graham, who was in the best position to observe, indicated that people had to jump out of the way of the truck. Mr. Micks indicated that the truck was surrounded by people who had to jump out of the way, and that Mr. Dawdy narrowly missed hitting someone. He conceded that people were more to the side of the truck than the rear. Ms. Micks testified that there was no one behind the truck. I am satisfied that the rapid movement of the truck backwards in close proximity to the people around it was dangerous.

[75] After reversing the vehicle, Mr. Dawdy left the parking lot at high speed, notwithstanding the fact that had difficulty controlling the vehicle as it was leaving the parking lot. In fact he lost control of the vehicle, mounted the curb and traveled for period of time on the boulevard and the sidewalk before regaining control and re-entering the roadway. He then traveled down a busy city street towards the downtown core at a speed of approximately 20 km an hour over the speed limit, weaving in and out of two lanes of traffic in an aggressive fashion. Other drivers had to brake aggressively in order to avoid collisions. When he turned off of Dundas Street, he performed two aggressive U-turns. In the second of those U-turns, he came close enough in proximity to Constable Scott's vehicle that Constable Scott was concerned that Mr. Dawdy might collide with his vehicle.

[76] I am satisfied that viewed objectively, Mr. Dawdy was driving in a manner which was dangerous to the public having regard for all of the circumstances. I am also satisfied that his conduct amounted to a marked departure from the standard of care that a reasonable person would observe in those circumstances. Mr. Dawdy has testified as to an extremely vague or nonexistent recollection of the circumstances of driving. His evidence is that he was suffering from pain anxiety at the time. I have rejected his evidence. There is no evidence accepted by the court about Mr. Dawdy's actual state of mind which could raise a reasonable doubt with respect to whether a reasonable person in that position would been aware of the risk created by his actions. Therefore, the Crown has proven both the actus reus and mens rea elements of the charge of dangerous driving.

CONCLUSIONS

[77] There will be findings of guilt with respect to the offences under sections 129, 252, 249 and 253 of the Criminal Code.

Released: March 1, 2016

Signed: "Justice A.T. McKay"