Court Information
Ontario Court of Justice
Date: 2016-08-22
Court File No.: Dryden, ON 1541 998 150461 00
Parties
Between:
Her Majesty the Queen
— And —
Devin Pitchenese
Judicial Officer and Counsel
Before: Justice Peter T. Bishop
Heard on: July 18, 2016
Reasons for Judgment released on: August 22, 2016
Counsel:
- Peter Keen, for the Crown
- Mark Van Wallegham, for the defendant Devin Pitchenese
BISHOP J.:
Charges
[1] Devin Pitchenese stands charged on or about the 27th day of March, 2015:
Did while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle and thereby caused bodily harm to Kevin Pitchenese contrary to Section 255(2) of the Criminal Code, and further that
Having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 milligrams in 100 millilitres of blood did operate a motor vehicle and thereby caused bodily harm to Kevin Pitchenese contrary to Section 255(2.1) of the Criminal Code.
Background
[2] At the beginning of the trial, the Crown and the defence agreed that the affidavit of Randall Warren, a toxicologist with the Centre of Forensic Sciences, sworn June 23, 2015 would be filed on consent showing that at the relevant time, the accused's blood alcohol content was projected to be between 234 – 272 milligrams of alcohol per 100 millilitres of blood.
[3] Both the Crown and the defence agreed at the beginning of the trial the only issue was whether the Crown could prove beyond a reasonable doubt that the accused was the driver of this motor vehicle.
Evidence of Dean Hussell
[4] Dean Hussell is an Ontario Provincial Police Officer and has been so employed since January, 2003.
[5] On March 27, 2015 he was working a twelve hour shift commencing at 6:00 p.m. and ending at 6:00 a.m.
[6] He received a call from the Communications Centre at approximately 7:06 p.m. that there was a motor vehicle collision on Ojibway Drive with an individual suffering some injuries.
[7] It took him approximately twenty-one minutes to get to the scene.
[8] He observed a tree with bark missing and the vehicle was in the centre of the road.
[9] Several witnesses were present as well as an ambulance. A photo of the scene was filed as an exhibit.
[10] He observed three occupants in the truck with the head of one individual on the driver's seat and a passenger with the upper body on the passenger seat and the legs of the body lying down.
[11] There was also a third passenger in the back seat.
[12] The accused was in the front seat with his legs and his body lying down and his head extended towards the door.
[13] He observed a bump on the accused's left face and he had an odour of alcohol coming from his breath.
[14] The female in the rear seat was in pain and her head was bleeding.
[15] The motor vehicle was a 1999 Ford F150.
[16] The paramedics were having difficulty trying to stabilize the individuals who were later taken to the hospital. Constable Hussell attended at the hospital to interview the accused.
[17] He received information from an ambulance attendant and formed the opinion that the accused's ability to drive a motor vehicle was impaired by alcohol.
[18] At the hospital, the accused was arrested, and Dr. Cook, the attending physician, stated that he was capable of giving a breath sample.
[19] At 11:04 p.m. the accused was read his rights to counsel and did not want to call a lawyer.
[20] The officer arranged for an intoxilizer to be brought by Provincial Constable Wood to the hospital but he was eventually advised that the accused was not capable of giving a breath sample and they would need to get a warrant to obtain a blood sample.
[21] At the scene, the officer observed two tracks towards the tree and the road was snow packed and it appeared that the tire tracks were in a straight pattern heading for the tree.
[22] When observing the accused he was laying on the driver's side with the door open and the head on the driver's side of the bench seat. His body was under the dash but did not observe whether it was a bench or bucket seats.
Evidence of Donald Petiquan
[23] Mr. Petiquan is a member of the Wabaskang First Nations and he was travelling back to Wabaskang after getting gas at the Eagle Lake Reserve gas station.
[24] He came around the corner with the accident in the middle of the road. He thought it had happened hours before but people were still in the vehicle.
[25] He told his wife to call an ambulance and the police and then observed someone in the front seat.
[26] He made sure it was safe and he wanted help to arrive. He could smell smoke, and oil and gas from the front of the truck as the engine was still steaming from under the hood.
[27] He observed two or three people in the front seat, with the woman being in the middle of a bench seat. He thought the woman was deceased and was not sure if her head was still attached to her body.
[28] There was movement from the front seat with the parties all tangled together under the dashboard with the female being in the middle.
Evidence of Joanne Brown
[29] Ms. Brown is a resident of Eagle River and her residence is two driveways down from where the accident happened.
[30] When she arrived, the truck was still against the tree and she saw another couple there trying to help.
[31] She gave directions to the police and to the ambulance that there were three individuals in the truck. The woman in the truck tried to get out of the passenger side door.
[32] Kevin Pitchenese, who was known to her, had his leg jammed between the seats with his foot stuck in the hinge of the seat.
Evidence in Cross Examination
[33] When she arrived the truck was still against the tree and the woman known as Char was trying to get out of the truck.
[34] The man in the front seat had his head under the dash in the middle area of the seat.
Evidence of Charlene Hunter
[35] Ms. Hunter is the girlfriend of the accused.
[36] She suffered injuries of a broken toe and a hit to her head. She had been experiencing dizzy spells in relation to this accident.
[37] She usually was a passenger in the back seat and does not drive a motor vehicle but at one time had a learner's permit. She denied driving the vehicle but admitted that she had no knowledge whether or not she was driving on this occasion.
Evidence of Kevin Pitchenese
[38] Kevin Pitchenese is 43 years of age and the uncle of the accused.
[39] He has minimal recollection and cannot recall getting into the vehicle. They were all socializing and drinking and he lost his memory after 5:00 p.m. The occupants of the motor vehicle consumed approximately a 40 ounce bottle of vodka and this vehicle belonged to him but it was not in good running condition.
[40] He had parked the vehicle two to three weeks before the accident. He suffered a shattered pelvis with his hip bone and required twenty hours of surgery.
[41] There were clean breaks to the bone below the knee and his jaw was hanging which had to be put back together.
[42] He told the officer that he had no recollection of who was driving and concluded that he was not driving.
[43] Because of the state of the truck he would not let anyone else drive the vehicle.
Crown's Position
[44] The only issue which the Crown and the defence agreed upon was to whether the Crown has proven beyond a reasonable doubt whether the accused was the driver.
[45] The Crown takes the position that there were only three individuals in the vehicle and that Kevin Pitchenese stated that he was not the driver. He had lost consciousness and his foot was jammed between the crack between the front seat.
[46] Ms. Hunter was close to the passenger seat and doesn't drive.
[47] Devin Pitchenese's head was on the driver's side with his body jammed under the dashboard.
[48] The Crown's position is that by the process of elimination and the evidence of the two other witnesses that the only logical explanation left is that the accused was driving.
Position of the Defence
[49] The position of the defence was that the Court must be left in a reasonable doubt as to who was actually driving for the following reasons:
It is unsafe and dangerous to accept the evidence of the two passengers as they were extremely intoxicated and have no recollection of what happened.
No one was in the driver's seat with the bodies being positioned around the cab of the vehicle.
Most of the accused's body was in the middle of the bench seat.
Kevin Pitchenese's body was mostly in the back seat with his one leg stuck and twisted in between the bench seat.
The driver's door was opened and the defence speculates that perhaps someone else was driving and fled the scene but there is no evidence for the Court to conclude that.
Decision
[50] I reject the submission of the Crown that I can assume by the process of elimination that if two witnesses stated that they weren't driving it must be the accused who has elected to remain silent.
[51] I reject the evidence of Kevin Pitchenese and Charlene Hunter because they were extremely intoxicated when they entered the vehicle and have no recollection of what actually happened, and who was driving. I cannot accept their evidence due to their degree of intoxication as well as the injuries that they each received. Simply because Kevin Pitchenese and Charlene Hunter speculate that they were not driving does not prove beyond a reasonable doubt that they were not the drivers.
[52] I further cannot conclude that because of the positioning of Mr. Pitchenese's body with his leg being twisted between the upright positions of the front seat that he could not have been the driver. There would have to be some expert evidence about the force of the collision and whether or not Mr. Pitchenese could have been in the front seat or be the driver and then thrown into the back seat as a result of the force of the collision.
[53] The accused elected to remain silent and did not give evidence and I cannot draw any adverse inference from that. The onus is always on the Crown to prove each element of the offence beyond a reasonable doubt.
[54] Another problematic issue is that the vehicle was in the middle of the road when the police arrived but the first witness at the scene stated the truck was still against the tree. There was no evidence on how the vehicle got from the tree to the middle of the road and whether someone else assisted or didn't assist. There is no evidence that there was anyone else in the truck.
[55] For all of those reasons, I am finding that the Crown has not proven beyond a reasonable doubt that the accused was the driver of this vehicle and an acquittal must enter on the impaired causing bodily harm and the drive over .08 causing bodily harm.
Released: August 22, 2016
Signed: "Justice Peter T. Bishop"