Court File and Parties
Ontario Court of Justice
Date: 2017-06-15
Court File No.: 15-17247
Between:
Her Majesty the Queen
— and —
Keith Butler
Before: Justice J.M. Copeland
Heard: April 10, 11, 12, 2017
Reasons for Judgment released: June 15, 2017
Counsel
Ms. S. Scully — counsel for the Crown
Mr. T. Rodocker — counsel for the accused Keith Butler
Judgment
Copeland J.:
Overview of Charges
[1] Keith Butler is charged with one count of operation of a motor vehicle with excess blood alcohol, and one count of failing to stop at the scene of an accident in order to avoid civil or criminal liability.
[2] The charges arise out of a collision in which Mr. Butler's pick-up truck rear-ended a car driven by Mr. Singh and struck a road sign on the median between the Northbound and Southbound lanes. Mr. Butler's pick-up truck then travelled across the lanes of opposing traffic, down into the ditch beside the road, and then up into a parking lot on the opposite side of the street. Mr. Butler then left the scene in his truck. The police at the scene were notified approximately 20 minutes after the collision that the driver would be returning to the scene. Mr. Butler returned to the parking lot next to where the collision occurred approximately 35 minutes after the collision, and identified himself to police as the driver of the pick-up truck involved in the collision.
Legal Issues
[3] There are two live legal issues at trial, both of which engage issues of credibility. The first issue relates to the over 80 count. The breath samples were taken more than two hours after the alleged offence. As a result, the presumption in s. 258(1)(c) is not available to the Crown. Crown counsel called a toxicologist, Mr. Yen, to testify as to what Mr. Butler's blood alcohol concentration would have been at the time the driving and the collision. The expert opinion is based on certain assumptions, which the expert clearly explained in his evidence. One of those assumptions is that there was no bolus drinking shortly before the time of the collision. Mr. Butler testified and gave evidence that, if believed or if it raises a reasonable doubt, undermines the expert's assumption about the absence of bolus drinking. Further, if Mr. Butler's evidence is believed or raises a reasonable doubt, the timing and pattern of his drinking shortly prior to the collision is such that, in the opinion of the toxicologist, Mr. Butler's blood alcohol concentration would not have been over 80 mg of alcohol per 100 ml of blood at the time he was driving.
[4] The second issue relates to the fail to remain count. The issue is whether the Crown has proven beyond a reasonable doubt that Mr. Butler left the scene of the collision with the intention of escaping civil or criminal liability.
The Excess Blood Alcohol Count
Burden of Proof
[5] The Crown bears the burden to prove the elements of the offence of operation of a motor vehicle with excess blood alcohol beyond a reasonable doubt.
The Bolus Drinking Defence
[6] Mr. Butler puts forward a defence based on a theory of bolus drinking. That is, evidence and argument putting forward the proposition that he consumed a large quantity of alcohol shortly before driving, with the effect that, although his blood alcohol level was over the legal limit at some later time, it was not over the legal limit at the time that he operated the motor vehicle.
[7] Although the burden of proof always remains with the Crown on the reasonable doubt standard, this type of defence is subject to a judicially created evidentiary presumption, as outlined in the decision of R. v. Lima, 2010 ONCA 615. As the Court of Appeal explained in Lima, although the Crown bears the burden of proof to prove that there was no bolus drinking, which is one of the factual assumptions supporting the toxicologist's opinion, in the absence of evidence in the record to suggest that there was bolus drinking, a trier of fact can rely on the common sense inference that people do not normally drink large amounts of alcohol immediately before or while driving. This common sense inference based on how people ordinarily behave creates a practical evidentiary burden on the defendant to point to something in the evidence, either in the Crown's case or the defence evidence (or some combination of the two), to put bolus drinking realistically in play: Lima at paras. 27-40. The holding in Lima creates an evidentiary presumption, but does not create a persuasive burden or shift the burden of proof. Thus, the defendant must be able to point to some evidence in the record that makes bolus drinking a live issue in order to avoid the common sense inference that ordinary people do not drink large amounts of alcohol immediately before driving.
[8] There is no dispute between Crown counsel and defence counsel in relation to the law on how this evidentiary presumption operates. Further, Crown counsel accepts that in light of Mr. Butler having testified and the content of his evidence, if the court believes his evidence or is left in a reasonable doubt by his evidence, then the expert opinion given by the toxicologist in response to the hypothetical situation put to him by defence counsel provides a defence. That is, if the court accepts Mr. Butler's evidence about the timing and pattern of his drinking in relation to the timing of his driving and the collision, then the expert opinion is that his blood alcohol concentration would have been under 80 mg of alcohol per 100 ml of blood at the time he was driving.
[9] I agree with this concession by Crown counsel, and find that there is some evidence on the record that realistically makes bolus drinking a live issue. This evidence includes the evidence of the empty 375 ml bottle of Jack Daniels in Mr. Butler's truck, Mr. Butler's evidence of the fact that he is an alcoholic and his drinking pattern that day, and the time line in terms of the distances driven as they relate to when and where Mr. Butler says he was drinking and the time and location of the collision.
Application of the Reasonable Doubt Standard
[10] The practical effect of there being a realistic basis in the evidentiary record to consider the issue of bolus drinking is that the Crown is left with the burden of proof beyond a reasonable doubt on these issues, as is generally the case with most elements of a criminal offence. As I have noted, Mr. Butler testified. I apply the reasonable doubt standard to issues of credibility, following the decision of the Supreme Court of Canada in R. v. W.D.
[11] As I have noted, during the course of his evidence, the toxicologist, Mr. Yen, was asked about two hypothetical situations, one by Crown counsel and one by defence counsel. Each hypothetical involved using Mr. Butler's breathalyzer readings taken at 8:47 and 9:10 p.m., and doing a calculation to read back and give an opinion as to Mr. Butler's blood alcohol concentration at the time of the collision at 6:32 p.m., based on certain assumptions about the timing of alcohol consumption (and also quantity consumed, in the case of the defence hypothetical). On the hypothetical pattern of drinking put to Mr. Yen by Crown counsel, Mr. Butler's blood alcohol concentration would have been between 140 and 185 mg of alcohol per 100 ml of blood at the time of the driving. On the hypothetical pattern of drinking put by defence counsel, Mr. Butler's blood alcohol concentration would have been under 80 mg of alcohol per 100 ml of blood at the time of the driving. There is no dispute about the credibility or reliability of the toxicologist's evidence in response to the two hypothetical questions. Rather, the dispute between the Crown and defence counsel is about which underlying facts I should accept, which determines which of the two hypotheticals applies.
Undisputed Facts
[12] There are some objective facts that are not in dispute. Mr. Butler's pick-up truck rear-ended Mr. Singh's car, and also struck a sign at the end of median. Mr. Butler's truck then crossed the median and the lanes of oncoming traffic, and went down into the grassy ditch beside the road. Mr. Butler then drove his truck up out of the ditch into the parking lot of the mall next to the road, and exited through the mall. The collision occurred shortly after 6:30 p.m. This time is reasonably precisely confirmed by the fact that the first officers to the scene were dispatched to attend at 6:34 p.m. Both Crown and defence counsel put the case forward on the basis that the collision occurred at 6:32 p.m., and I will proceed on the same basis.
Mr. Butler's Evidence Regarding Alcohol Consumption
[13] Mr. Butler testified. He was 27 years old at the time of the trial, and 25 at the time of the events giving rise to the charges. In relation to the over 80 count, Mr. Butler's evidence was as follows. Mr. Butler testified that for the five or six years preceding the collision, he had a serious problem with alcohol and drug abuse, and had, in effect, been self-medicating a problem of depression and anxiety with alcohol and cocaine. He testified to large amounts of money he spent monthly on both alcohol and cocaine. In relation to his alcohol consumption, he testified that he would often drink 12 beers in a day, or a full 375 ml bottle of Jack Daniels in one sitting. At its worst he would consume an entire 26 ounce bottle of liquor in a single night. He mostly drank alone, after work. When drinking Jack Daniels he would either drink it in a shot glass, or right out of the bottle. At the time of the collision, Mr. Butler was on stress leave from work at his parents' business due to the substance abuse issues. His substance abuse issues adversely affected his relationships with his parents, friends, and with his co-workers.
[14] Mr. Butler testified that on the day of the collision, he was not working. He woke up around noon, and hung around his apartment and watched TV for a few hours. At the time, he was trying to deal with his alcohol addiction and drug addiction by himself. He was not receiving any treatment at that time. He was feeling depressed and anxious and in withdrawal. Around 3 p.m., he left his apartment and went to the LCBO, and bought the mickey of Jack Daniels (the bottle later found empty in the truck after the collision). He then went home, and argued with himself about how he needed to do better and he should not have gone and bought the Jack Daniels, which he viewed as a relapse. He telephoned a close friend around 5 p.m., hoping to go over to the friend's house to have someone to talk to. The friend was also dealing with addiction issues, and they provided support to one another. But he was unable to reach his friend.
[15] Mr. Butler testified that he drank almost all of the 375 ml bottle of Jack Daniels whisky in the 10 to 12 minutes prior to the collision. He had not consumed any alcohol earlier in the day. He testified that he went down to his truck at approximately 6:20 p.m. He took the bottle of Jack Daniels with him. He testified that he had no real destination in mind, but was just trying to escape what he was feeling that day. He testified that he was out to do himself harm. While he was still parked in the truck at his apartment, he drank about half of the bottle of Jack Daniels. He testified that he drank that amount by "chugging" it from the bottle. He then started to drive. In his evidence Mr. Butler described the route he drove. That route is marked on the map entered as exhibit #12. Mr. Butler continued to drink the Jack Daniels as he drove. During this time the bottle was either in his hand, or in the cup holder in the centre console. He finished almost all the rest of the bottle as he drove along Chinguacousy Road.
[16] Mr. Butler testified that he was driving recklessly in that he was speeding and driving a bit aggressively. He turned onto Hurontario, the street where the accident occurred. He testified that the speed limit there was 70 km/h (I note that one of the civilian and some of the officers police witnesses testified that they thought the limit was 60 km/h, but that they were not sure, and it was possible that it was 70 km/h. Ms Gardiner testified that the limit was 70 km/h. In these circumstances I accept Mr. Butler's evidence that the limit was 70 km/h). Mr. Butler testified that he was travelling faster than 70 km/h, probably 80 to 85 km/h.
[17] Mr. Butler testified that that just prior to the accident he was quickly approaching behind Mr. Singh's car. Mr. Singh's car was braking. Mr. Butler moved his truck into the centre turning lane in order to go around, but did not see the end of the median which he was approaching in the lane he moved into before he changed lanes. As soon as he changed lanes, he saw the median in front of him. Mr. Singh's car was right beside him at that point and he had nowhere to go. He tried to get back into the other lane, and at the same time braked. He ended up hitting both the median and Mr. Singh's car. Mr. Butler testified that his truck then swerved off towards the plaza (across the lanes of oncoming traffic). Mr. Butler testified that he was not drunk at the time of the collision. I will address the balance of Mr. Butler's evidence in relation to the fail to stop count.
Credibility Assessment
[18] I found Mr. Butler to be consistent in cross-examination on the issues relating to the timing and pattern of his drinking that day. I note that although Crown counsel did not challenge Mr. Butler's evidence about his alcoholism and substance abuse, she did cross-examine extensively about Mr. Butler's drinking pattern that day, and his activities earlier on the day of the collision and leading up to the collision. I found that Mr. Butler responded consistently to this probing cross-examination.
[19] In a normal person, the pattern of drinking described by Mr. Butler would be difficult to believe or to be left in a reasonable doubt by. But in Mr. Butler's circumstances, three factors support his explanation such that his evidence leaves me with a reasonable doubt.
[20] First, I accept Mr. Butler's evidence with respect to his alcoholism and drug abuse at the time of the collision, and in the 5 or 6 years preceding that time. I found Mr. Butler to be very candid regarding his struggles with alcohol and drug addiction. Crown counsel accepted that he was being honest in his evidence about his alcoholism. The fact that Mr. Butler is an alcoholic and the quantities that he was often drinking in that time period give credibility to Mr. Butler's evidence of the large quantity of alcohol he drank in a very short period of time shortly before he drove and as he was driving prior to the collision.
[21] Second, the presence of an empty 375 ml bottle (approximately 12.6 ounces according to the toxicologist) of Jack Daniels in the vehicle, seen by both Cst. Clements and Mr. Demerchant, provides some objective evidence that Mr. Butler was drinking in the vehicle. I acknowledge that it is possible the bottle was there from an earlier time, but in all of the circumstances, I find that the presence of the bottle in the vehicle provides some confirmation of Mr. Butler's evidence.
[22] Third, the distance and time to drive from Mr. Butler's apartment to the scene of the collision provides some confirmation for his evidence. The hypothetical question put to the toxicologist by defence counsel for which the opinion was given that Mr. Butler's blood alcohol concentration would have been under 80 mg of alcohol per 100 ml of blood at the time of the driving involved Mr. Butler starting to drink at 6:20 p.m., and the collision occurring at 6:32 p.m. Mr. Butler's evidence was that it was 10 to 12 minutes from the time he starting drinking while parked at his apartment until the collision. Although he was not precise about how long he was in the parking lot, his evidence supports that that was a brief portion of the time. Based on the Google maps put into evidence before the court, the distance from Mr. Butler's apartment to the scene of the collision was approximately 9.8 km (see Exhibit #12). Counsel agreed that the distances on the various Google maps were accurate. The map also has an estimated drive time, but counsel did not ask the court to rely on that time, since time can vary according to traffic and driving speed. Without getting into a precise calculation of time and distance, the 9.8 km between Mr. Butler's apartment and the scene of the collision is within the ballpark of the distance Mr. Butler could reasonably be expected to have travelled in approximately 10 minutes, assuming his speed was between 60 and 85 km/h at various points on his route, and time to stop at various intersections as required.
Crown's Challenge to Mr. Butler's Evidence
[23] Crown counsel did not challenge Mr. Butler's evidence of his drug and alcohol addiction problem at time of the collision, but challenged his evidence of the timing and pattern of his alcohol consumption on that day. In particular, she challenged in cross-examination his evidence of bolus drinking, and his evidence of drinking while he was driving. Mr. Butler remained consistent in his evidence on these issues in cross-examination. In submissions, Crown counsel argued that I should reject Mr. Butler's evidence of bolus drinking and drinking while he was driving because it is not a normal consumption pattern and because, she argued, it is unlikely he would have consumed alcohol while driving because he could be seen. Although I accept that in the normal course most people would not engage in this type of behavior, and this is the point made by the Lima decision, in light of Mr. Butler's evidence of his problem with alcohol abuse and his binge drinking patterns, his deviation from "normal" drinking behavior does not lead me to reject his evidence.
Circumstances of the Collision
[24] Crown counsel argues that the circumstances of the collision are evidence that speaks against the credibility of Mr. Butler's evidence of the timing and pattern of his drinking. In Crown counsel's submission, the circumstances of the collision support the conclusion that Mr. Butler was already impaired by alcohol at the time of the collision (which would be inconsistent with his evidence about the timing of his alcohol consumption).
[25] I do not accept this argument by Crown counsel because I find that the circumstances of the collision are not clear enough for me to conclude that the accident could not have happened in the manner described by Mr. Butler. I found that all of the civilian witnesses called by the Crown in relation to the circumstances of the collision were doing their best to tell the truth. But I have concerns about the reliability of the evidence of exactly how the collision occurred because of inconsistencies in their descriptions of events. For example, Mr. Singh, the driver of the vehicle that was hit, testified that the traffic light ahead (i.e., the light for Northbound and Southbound traffic) was green when the accident happened. Mr. Butler testified that Mr. Singh was braking just prior to the collision, which is more consistent with that light being red. The evidence of another civilian witness, Ms Chowdhury, was that the light for Northbound and Southbound traffic was red at the time of the collision. Ms Chowdhury said this directly in response to questions posed in cross-examination. The evidence of the other civilian witness Ms Gardiner is less clear on this issue. These inconsistencies strike me as the types of differences that are common among different witnesses who observed an event that happened very quickly from different perspectives. Nonetheless, it leaves me unable to reject Mr. Butler's evidence that the collision occurred as a result of his speeding and reckless driving, and not as a result of impairment by alcohol. I note that Mr. Butler's evidence that he was speeding was confirmed by the evidence of the civilian witnesses Ms Gardiner and Ms Chowdhury.
Finding on the Over 80 Count
[26] Considering Mr. Butler's evidence in the context of the evidence as a whole, I am left with a reasonable doubt by his evidence about the pattern and timing of his drinking in relation to the timing of his driving.
[27] The evidence Mr. Butler gave of the pattern and timing of his drinking in relation to the timing of the driving was the basis for the hypothetical situation put to the toxicologist, Mr. Yen, by defence counsel. The hypothetical situation posed by defence counsel was to assume the time of driving was 6:32 p.m.; that breathalyzer readings taken at 8:47 and 9:10 p.m. showed blood alcohol content of 146 mg of alcohol per 100 ml of blood; and that 12 ounces of alcohol at 40 percent per volume (the same as Jack Daniels) was consumed between 6:20 and 6:32 p.m. This hypothetical situation tracks Mr. Butler's evidence about the timing and pattern of his drinking prior to the collision.
[28] In response to this hypothetical situation put to him by defence counsel, Mr. Yen agreed that in that situation the assumption of no bolus drinking that forms part of the basis for the opinion in his report regarding the blood alcohol level at the time of driving is undermined. Further, Mr. Yen testified that in the hypothetical situation put to him by defence counsel, Mr. Butler's blood alcohol level at the time of the collision would have been less than 80 mg of alcohol per 100 ml of blood. Mr. Yen testified that assuming those facts, Mr. Butler's blood alcohol level would have been under 80 mg of alcohol per 100 ml of blood at 6:32 p.m. because not all of the alcohol he had consumed would have been absorbed into his system yet.
[29] I accept Mr. Yen's opinion that in the circumstances of the hypothetical put to him by defence counsel, and which mirrored Mr. Butler's evidence, Mr. Butler's blood alcohol concentration would have been under 80 mg of alcohol per 100 ml of blood at the time of the driving.
[30] Based on Mr. Butler's evidence leaving me with a reasonable doubt on the issues related to the over 80 count, and on my acceptance of Mr. Yen's expert evidence, I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Butler's blood alcohol level at the time of the driving was over 80 mg of alcohol per 100 ml of blood.
The Failure to Stop in Order to Avoid Civil or Criminal Liability Count
Burden of Proof
[31] As with the excess blood alcohol count, the Crown bears the burden to prove the elements of the offence of failure to stop at an accident in order to avoid civil liability beyond a reasonable doubt.
Statutory Presumption Regarding Intent
[32] Also similarly to the excess blood alcohol count, the offence of failure to stop at the scene of an accident involves a consideration of an evidentiary presumption. The mens rea created by s. 252(1) requires an intent that when the person fails to stop at an accident, he or she does so "with intent to escape civil or criminal liability". Section 252(2) of the Criminal Code creates a statutory presumption in relation to that intent, as follows: "In proceedings under subsection (1), evidence that an accused failed to stop his vehicle . . ., offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of intent to escape civil or criminal liability."
[33] The presumption in s. 252(2) is an evidentiary burden. The burden of proof of the mens rea remains with the Crown: R. v. Sanford, [2014] O.J. No. 4022 (ONSC); R. v. Guay (1978), 44 C.C.C. (2d) 116 (Que. C.A.)
[34] There is no dispute between Crown counsel and defence counsel in relation to the law on how the evidentiary presumption operates. Further, Crown counsel conceded that in light of Mr. Butler having testified, there is evidence to the contrary within the meaning of s. 252(2) which the court can consider on the issue of Mr. Butler's intent. The practical effect is that the Crown is left with the burden of proof beyond a reasonable doubt to show that at the time Mr. Butler failed to stop and left the scene of the collision he intended to escape civil or criminal liability.
Undisputed Facts Regarding the Scene
[35] As noted above, there are some objective facts that are not in dispute. The collision happened at approximately 6:32 p.m. After the collision, Mr. Butler's truck went across the lanes of oncoming traffic, and into the grassy ditch next to the road. He then drove up out of the ditch and into the parking lot of the mall, and exited through the mall. Police attended the collision scene, with the first officers arriving at approximately 6:36 p.m. At some point between 6:48 p.m. and 7:10 p.m., the officers at the mall parking lot near the collision scene were advised that the driver of the pick-up truck was going to be returning to the scene, so they waited for the driver to return. Cst. Surujpaul, who had the most precise note on this point, testified that he overheard on the police radio at 6:50 p.m. that the driver would be returning to the scene to speak to police. At approximately 7:05 p.m. Mr. Butler returned to the parking lot of the mall where the police were investigating next to the collision scene. Mr. Butler was driven there by his sister in her vehicle. Mr. Butler exited the vehicle and identified himself to police as the driver of the pick-up truck involved in the collision. I accept Cst. Surujpaul's evidence as the most accurate among the police witnesses regarding the time that Mr. Butler returned, because he had very precise notes of these times because he was the officer who ultimately made the ASD demand. Cst. Surujpaul testified that Mr. Butler came back at 7:05 p.m. He testified to some conversation with Mr. Butler and observations he made of him. Cst. Surujpaul testified that following that conversation and observations, he made an ASD demand at 7:10 p.m.
Mr. Butler's Evidence Regarding His Departure from the Scene
[36] I find the credibility of Mr. Butler's explanation for leaving the scene of the collision more troubling than his evidence in relation to the over 80 count. As I have noted, I apply the reasonable doubt standard to the issue of credibility of Mr. Butler's evidence, in accordance with the decision of the Supreme Court in R. v. W.D. I note that in assessing credibility, I may accept some, none or all of the evidence of any witness. Thus, the fact that I have a reasonable doubt about Mr. Butler's evidence with respect to the timing and pattern of his drinking in relation to the time of driving as it relates to the over 80 count does not preclude me from rejecting Mr. Butler's evidence about his intention in leaving the scene of the accident.
[37] Mr. Butler testified that after the collision, and after his truck went across the lanes of oncoming traffic and into the ditch, he was stuck in the ditch for a split second. He put the truck in 4-wheel drive and climbed out of the ditch into the mall parking lot. He went through the parking lot and onto Fisherman Drive. He then went West on Whybank Drive, and stopped at a warehouse parking lot. He testified that this was "way less" less than 1 km from the plaza, estimating the distance as 500 to 600 feet. He pulled over there and took a quick look at the outside of his truck to see the damage. He saw that the front passenger side tire was flat, part of the front bumper was missing, there was a dent in the hood, and a piece of the front grill was missing. This put him in more of a panic.
[38] Mr. Butler got back into his truck and headed back to Fisherman Drive and towards Hurontario and Fisherman (near to the collision scene). He then turned North onto Hurontario (away from the collision scene) and continued to Sandalwood Parkway. He went East on Sandalwood and then onto Conestoga. He made a right turn into the Heart Lake Town Centre and stopped there. He pulled into the first parking space he saw and parked. Mr. Butler testified that it was 5 to 7 minutes from the time of the collision until the time he stopped at the Heart Lake Town Centre. He testified that the only time he stopped between the collision and stopping at the Heart Lake Town Centre was the stop of about 30 seconds to look at the damage to his truck in the warehouse parking lot.
[39] Mr. Butler testified that his state of mind after the collision was sheer panic and anxiety, and that he was really flustered and did not know how to deal with the situation. He testified that when he got into these moods it "kind of put me on autopilot". He testified that as he was driving on Sandalwood he started to think more clearly, and decided to return to the collision scene. But because of the damage to his truck, in particular the tire, he felt the truck would not make it back, so he parked in the closest parking spot – at the Heart Lake Town Centre. Mr. Butler denied that he was intending to escape civil or criminal liability when he left the scene of the collision.
[40] Once he was parked, he phoned his sister, told her what happened, and asked her to come and pick him up. He then waited for her. Mr. Butler testified that he arrived at the Heart Lake Town Centre at roughly 6:40 p.m. His truck was not really operable at that time because the front passenger tire was flat and the rim was "shattered". Mr. Butler testified that his sister arrived after approximately 20 minutes. At that time Mr. Butler was at the RBC bank in the mall. When his sister arrived, Mr. Butler spoke to her for 5 to 10 minutes, and then they drove back to the parking lot next to the collision scene where the police were investigating.
[41] Mr. Butler testified that at the Heart Lake Town Centre he accepted the offer of Mr. Demerchant, a stranger who happened to be at the mall, to help him change his tire. Mr. Butler also testified that after Mr. Demerchant made the offer to help change the tire, Mr. Butler offered him $20 for his assistance. Mr. Butler testified that he went to the RBC bank to get cash for that purpose. Mr. Butler also testified that he lied to Mr. Demerchant about how his truck was damaged, telling Mr. Demerchant that it had happened when he was "mudding" (off-road driving).
[42] Mr. Butler testified that when he arrived back at the plaza near the collision scene, he approached Cst. Surujpaul and said, "I am sorry. I was the driver of that black truck". He testified that he told the police that he had had 3 shots of whisky 2 hours earlier. This was a lie. He testified that he said it because he was scared, and "in a messed up way, I thought it would be better than what I did".
Analysis of Intent to Escape Liability
[43] As I have noted, there is no dispute that Mr. Butler failed to stop at the scene of the collision, and failed to provide his name and address or offer assistance. The sole issue is whether the Crown has proven beyond a reasonable doubt that Mr. Butler left the scene with intent to escape civil or criminal liability.
[44] I have a number of concerns about the credibility of Mr. Butler's evidence in relation to the reason he left the scene of the collision. These concerns include the following:
Much of Mr. Butler's conduct after the collision appears to have a level of deliberateness that seems inconsistent with his explanation of unthinking panic. In particular, he made the choice to put the truck into 4-wheel drive to get out of the ditch. And after he made the first stop at the warehouse parking lot to look at the damage to his truck, he made the choice to continue driving. However, I do note that these decisions took place in a relatively brief period of time.
Mr. Butler's explanation of unthinking panic was somewhat vague. He could not really explain he source of his panic. This in a context where there was no obvious source for fear other than the prospect of civil or criminal liability. Indeed, given Mr. Butler's evidence that he had consumed alcohol immediately before and while he was driving, fear of civil or criminal liability has some strength as a possible motive for leaving the scene of the collision.
Mr. Butler admitted in his evidence that he lied to Mr. Demerchant regarding how the damage to his truck happened. This lie appears inconsistent with Mr. Butler's evidence that it was while he was driving along Sandalwood Parkway, before he arrived at the Heart Lake Town Centre, that he decided he should go back to the collision scene. If he had already made the decision to go back (but was prevented by the damage to his truck), why lie to Mr. Demerchant about the cause of the damage? I note that I found Mr. Demerchant to be an honest witness. He was independent of any of the parties to the collision, and had no apparent motive to mislead the court about his interaction with Mr. Butler. Further, Mr. Demerchant was consistent in his evidence, including in cross-examination.
Mr. Butler accepted Mr. Demerchant's offer to help him change his tire. One interpretation of this act could be a desire to make the truck operable so as to continue to distance himself from the scene of the collision; although I acknowledge that this is not the only possible explanation.
I found Mr. Butler to be weaker in cross-examination on the issues relating to his intent than he was on the issues related to his alcohol consumption that day. I found him to be somewhat evasive during the cross-examination about the fact that he seemed able to make decisions when he left the scene, and when he stopped at the warehouse to look at the damage to his truck. He repeatedly said that he panicked and was kind of "on autopilot", but was unable to reconcile this explanation with what appeared to be some level of considered decision-making. Nor could he explain why he asked Mr. Demerchant to help him change his tire, or why he lied to Mr. Demerchant about the cause of the damage to his truck.
Consideration of Police Evidence
[45] I have considered as well the evidence of Cst. Surujpaul that when Mr. Butler returned to the scene and identified himself as the driver, he said: "Sorry, I was scared, so I left." In the context of the explanation given by Mr. Butler for why he left the scene, I do not find this statement to be of great assistance. It is certainly true that it could be interpreted as Crown counsel argues, that what Mr. Butler was scared of was civil or criminal liability, and that is why he left. However, the statement which Cst. Surujpaul testified to is also consistent with Mr. Butler's evidence of a vague panic and fear, which was not specific to a desire to escape civil or criminal liability. As I have noted, this latter explanation suffers from the absence of any clear object of fear other than civil or criminal liability.
Significance of Voluntary Return
[46] However, I must also weigh the fact that Mr. Butler returned to the scene within a relatively brief time after the collision. He was back at the scene in just under 35 minutes after the collision. Further, as Cst. Surujpaul testified, he heard over the radio at approximately 6:50 p.m. that the driver of the pick-up truck was going to return to the scene (this was confirmed by other officers present, although they were less sure of the time). I am cautious with the use of this information about what the officers heard from dispatch, since it is hearsay (or more likely double-hearsay). However, I find that it can be used for the non-hearsay inference that by 6:50 p.m., information had been communicated to the police that the driver intended to return. This time line is consistent with Mr. Butler's evidence that he called his sister as soon as he arrived at the Heart Lake Town Centre at 6:40 p.m. It seems very unlikely that the information that the driver of the pick-up was returning would have been communicated to police prior to that decision being made by Mr. Butler. Thus, it supports Mr. Butler's evidence regarding a somewhat earlier decision by him to return to the scene of the collision.
Comparison to Similar Cases
[47] I have also considered the cases of R. v. Hayam, 2017 ONCJ 132 and R. v. Rampersad, 2006 ONCJ 182 put before the court by defence counsel in submissions. Neither case is exactly similar to this case on the facts, and neither is binding on me. But each case offers a helpful comparison of factors which were considered by the trial judge in each case in relation to the presence or absence of an intent to escape civil or criminal liability. In Hayam, one important factor that led the trial judge to find that the Crown had proven that the defendant in that case intended to escape civil or criminal liability when he left the scene of a collision was that the defendant did not voluntarily return to the scene, but rather, was stopped in a traffic stop by police, in circumstances where there was no credible evidence that the defendant was voluntarily returning to the collision scene. Mr. Butler's case is thus more compelling for the defence than was Mr. Hayam's case, since Mr. Butler voluntarily returned to the collision scene.
[48] In Rampersad, as in this case, the defendant left the scene of a collision for 25 to 30 minutes, and then voluntarily returned and identified himself to police as an involved driver. Unlike the present case, in Rampersad, there was more specific evidence as to a reason the defendant left the scene, which related to a youth who was in the car with the defendant and who was late for a family function. The defendant took the youth to a gas station and arranged for a taxi to take the youth home before returning to the scene of the collision. In comparison to Mr. Butler's explanation for his reasons for leaving the collision scene, the explanation in Rampersad appears to have a more cogent basis.
Final Analysis on Intent
[49] Ultimately every case turns on the evidence presented, and the findings of fact made by the trial judge. Although I have concerns about Mr. Butler's explanation of why he left the scene, I weigh these concerns in the context that he did ultimately come back to the scene of the accident within less than 35 minutes after the collision. If Mr. Butler left the scene with the intent of trying to escape civil or criminal liability, the fact that he returned does not provide a defence. That is, if the prohibited intent of escaping civil or criminal liability was present at the time that Mr. Butler left the scene of the collision without complying with his s. 252 duties, a later change of mind and compliance with the duties does not negate the earlier criminal intent. But, the fact that Mr. Butler returned to the scene of the collision and identified himself to police as the driver of the pick-up truck within a reasonably proximate time to the collision is circumstantial evidence which in the context of all of the evidence can support the inference that he did not have the intention to avoid civil or criminal liability when he left the scene.
[50] I have considered the other inference, argued by Crown counsel, that Mr. Butler left the scene with the intention of trying to escape civil or criminal liability, and only decided to return after speaking to his sister for 5 or 10 minutes at the Heart Lake Town Centre. The Crown's argument is essentially that the evidence is sufficient to prove beyond a reasonable doubt that Mr. Butler had an intention to escape civil or criminal liability at the time he left the scene of the collision, but that he later changed his mind and decided to return.
[51] The Crown bears the burden to prove that at the time Mr. Butler left the scene of the collision, he did so with the intent of escaping civil or criminal liability. After careful consideration of all of the circumstances, I find that the Crown has failed to discharge this burden, and I am left with a reasonable doubt about Mr. Butler's intention at the time he left the scene of the collision.
Verdict
[52] For all of these reasons, I find Mr. Butler not guilty of both counts.
[53] I thank both counsel for their helpful presentation of the evidence and submissions.
Released: June 15, 2017
Signed: Justice J.M. Copeland