Court Information
Ontario Court of Justice
Date: September 28, 2017
Location: Toronto Old City Hall
Parties
Between:
Her Majesty the Queen
— And —
Andre Hidi
Judicial Officer and Counsel
Before: Justice Knazan
Reasons for Judgment released on: September 28, 2017
Counsel:
- D. O'Connor, counsel for the Crown
- S. Price, counsel for the accused
KNAZAN J.:
INTRODUCTION
[1] Mr. Hidi is charged with operating a motor vehicle while his ability to do so was impaired by alcohol on April 17th, 2014. All of the operation of a motor vehicle in the case occurred on the Gardiner expressway between 2:39 a.m. when an off duty police officer noticed him, and 2:45 a.m. when a Toronto police officer stopped him on Lakeshore Blvd.
[2] There are three witnesses to the driving, an off-duty officer, Peel Detective Bruce Thompson, Toronto police officer, Peschier, both observing from outside the car, and the defendant Mr. Hidi himself who testified as to how he was driving from inside the car.
[3] There is no doubt that something was impairing Mr. Hidi's ability to operate his motor vehicle. There is also no doubt that he had consumed alcohol as he testified that he did and the officers smelled it on his breath. The only question for determination is whether the prosecution has proven beyond a reasonable doubt that that something was alcohol. He agrees that his driving was unusual, explains it and advances judgments in other cases that stand for the obvious proposition that even terrible driving may be explained by reasons other than impairment by alcohol. The prosecution characterizes the driving as terrible.
[4] The characterization of the driving is less important to the analysis than the description of what he actually did. The important point is that the driving demands an explanation; it demonstrates impaired ability to operate a motor vehicle. While driving on an expressway, he came to a complete stop in the left lane, sometimes called the fast lane, and hit the guardrail before backing up and proceeding on his way. At an earlier point he slowed down to such a slow pace in the live right lane of traffic, that Officer Thompson said that he came to a complete stop; Mr. Hidi agreed only that he slowed down. He also changed lanes frequently when there was no driving reason to do so in the sense of exiting or passing; Officer Thompson said that he was swerving; Mr. Hidi testified that he was changing lanes to stay alert.
[5] The prosecution's case on the essential element of the offence that the impairment be "by alcohol" is circumstantial; he drove in a way that proves something was impairing his ability, he had consumed alcohol, and there is no other reasonable explanation for the driving. In order to succeed the Crown must show beyond a reasonable doubt that the evidence is consistent with alcohol being the reason for the impaired ability to drive, even in part, and that no other explanation could reasonably be true.
[6] There is other evidence of Mr. Hidi's impairment or lack of impairment by alcohol in the observations of Officer Peschier, and the intoxylizer technician, Officer Thompson as well as Officer Strangways, the Sergeant in charge of the station, and videos taken of the arrest and the booking and the entering into the testing room.
The Driving
[7] Bruce Thompson, was travelling eastbound on the Gardiner expressway when he noticed Mr. Hidi swerving in front of him. He also noticed that his speed was fluctuating. Near Windermere Avenue, Mr. Hidi came to a complete stop in the curb lane of traffic. After being stopped for ten seconds, Mr. Hidi began to travel again and moved back into the passing lane and moved, Thompson described it as swerving, from the passing lane to the middle lane to the curb lane and then back to the passing lane. On some occasions his signaling did not correspond to his maneuver as he signaled both left and right while in the left lane at a time when he made no lane change at all.
[8] Past Spadina Avenue, Officer Thompson observed Mr. Hidi come to a complete stop again, this time in the left or passing lane. He described this as occurring after Mr. Hidi swerved into the left lane. Mr. Hidi then accelerated and struck the concrete barrier with the front of his car. He then reversed slightly and proceeded Eastbound.
[9] Officer Thompson then saw Mr. Hidi drive properly to the York St. exit and followed him. He exited east onto Harbour St. which eventually becomes Lakeshore Blvd., at which point Mr. Hidi stopped at the red light and was stopped and pulled over by Officer Peschier.
[10] I accept Officer Thompson's testimony as he was off-duty, disinterested as between the prosecution and Mr. Hidi, even though he is a police officer and readily agreed in cross-examination that Mr. Hidi's driving was uneventful and normal when it was. Indeed Mr. Hidi relies on Officer Thompson's observations to show that he was driving in a way that was inconsistent with being impaired by alcohol.
[11] For example, Thompson agreed that Mr. Hidi did not appear to cause other vehicles to line up behind him or interfere with their travel or their passing Mr. Hidi. He agreed that the initial swerve was consistent with the driver having dropped something and he thought that perhaps that is what happened. He only called 911 because he thought that the driver might possibly be impaired. Mr. Hidi travelled almost three kilometers without any incident.
[12] The driving has been referred to unusual and aberrant in submissions and contrasted with terrible driving referred to in the case law. This driving is the only evidence that Mr. Hidi's ability to operate a motor vehicle was impaired by anything, so it is important to establish what this driving is.
[13] I therefore turn, at this point, to Mr. Hidi's evidence about his driving. He not only explains his driving but describes his perception of what driving he is explaining. As I cannot determine what indicates impaired ability, so what if anything he has to explain, without reaching a finding about how he drove, I will deal with his evidence as to how he drove here.
[14] Mr. Hidi in his testimony described the occurrences that Officer Thompson testified about differently. He did not stop either in the right lane or in the left lane. Rather, in what Officer Thompson described as a stop on the right, he testified that he slowed down because in checking his cell phone, he had dropped it. Since there was no traffic, he slowed down to pick it up.
[15] Nor did Mr. Hidi say that he stopped in the left lane at any point or that he struck the guardrail with the front part of his car as the officer testified. He did testify to contact with the guard rail but said that he brushed it.
[16] Other evidence about the contact with the guardrail confuses the matter. Officer Peschier had responded to the call that Thompson's call to the police initiated. He was stopped on the Gardiner when he saw a collision in the rear view mirror of his car. He described the collision, which I find was the same one that Thompson saw and Mr. Hidi caused, as being a t-boning of the car into the guardrail almost at right angles, with the car then backing up and having to do almost a left turn to right itself and head east. This is as opposed to Officer Thompson who said that Mr. Hidi struck the guard rail at an angle of about 15 degrees and reversed slightly, and Mr. Hidi who testified that he brushed the guardrail. But further, Officer Peschier testified that Mr. Hidi hit the right guardrail, not the left.
[17] I accept Officer Thompson's evidence over that of Officer Peschier and Mr. Hidi. I found him credible for the reasons that I have given.
[18] Mr. Hidi had no criminal record and two witnesses testified as to his honesty. However he was describing his driving after he had consumed alcohol, whether it impaired his driving or not, and while so tired that he had had to stop to sleep for several hours before resuming his driving. Even then, he had to undertake the unusual step of opening his window and repeatedly changing lanes to stay alert, and he still made contact with the guardrail on the passing lane of a major highway. He did not know that he would be stopped by the police and have to testify, whereas Thompson was following him and watching him after having called the police; his observations are sounder.
[19] In addition, the only piece of objective evidence that does not turn on personal testimony is the photograph of the damage to the car and it confirms contact with the front of the car, not only a brush as Mr. Hidi testified. The location of the headlight on the Volvo is the front of the car where a headlight is and there is damage to the front of the car. This supports Officer Thompson's observation that there was a collision that required a backing up. Peschier's confusion does not detract from the force of Thompson's evidence. Peschier was observing through his rear view mirror, confused left and right and stubbornly maintained this.
[20] I find that Mr. Hidi came to a full stop in the right lane of the Gardiner and a full stop in the left lane of the Gardiner where he struck the left guardrail with a part of the front of his car.
The Post-Driving Conduct
[21] The other evidence relevant to whether it was alcohol or something else that impaired Mr. Hidi's ability to operate a motor vehicle is what he submits is his post driving conduct that demonstrates that he is not impaired by alcohol and which the prosecution submits demonstrates impairment by alcohol.
[22] Before discussing this evidence, I must deal with whether I can even consider it. In a previous ruling I allowed Mr. Hidi's application to exclude the evidence of any intoxylizer results and any observations of impairment at the police station. However in his final submissions, Mr. Hidi relies on the evidence of his behavior at the police station to show that he is not impaired. So, on the one hand, he requested that all evidence subsequent to being denied his right to counsel of his choice be excluded, but wishes to rely on the evidence of his conduct at the police station in submitting that he was not impaired by alcohol. In his submissions, he fully argued the weaknesses of the evidence of impairment at the police station, as well as his conduct being inconsistent with impaired ability to drive.
[23] I have taken Mr. Hidi's final position and considered the evidence of observations of Mr. Hidi's conduct in the video tapes as well as the police testimony in determining whether his ability to operate his car was impaired by alcohol. I have taken the position most favorable to him given his success on his motion to exclude evidence. I have not considered any evidence of impairment by alcohol that derives from his interactions with the police officers, so as to give full force to my decision to exclude it but have considered anything favourable to Mr. Hidi.
[24] In the case of Sergeant Strangways, this makes no difference to the case. I can fully observe Mr. Hidi's conduct while standing opposite Sergeant Strangways and answering his questions. There is nothing in his behavior that indicates any impairment with respect to driving or any other activity.
[25] The issue is more complex with respect to Officer Thompson, the intoxylizer technician. The video, as Mr. Hidi submits, shows no observable difficulties in walking, talking, sitting or providing a sample of his breath as directed. Officer Thompson testified to difficulties walking, both entering and leaving the breath room, that were not captured by the camera and a look in Mr. Hidi's eyes, not captured by the camera. Mr. Hidi requests that I give his evidence no weight.
[26] I accept that submission based on my decision to exclude evidence obtained after the denial of the right to counsel and need not deal with Officer Thompson's evidence of signs of impairment.
[27] That leaves little evidence apart from the observation of Mr. Hidi walking a short distance after Officer Peschier makes a demand for him to provide a sample of his breath.
[28] This is a very short walk but the evidence is somewhat detailed. In examination in chief, Detective Thompson said that Mr. Hidi swayed slightly as he stood beside his driver's door. In cross-examination he watched the video and agreed that there was no swaying as he stood, making it irrelevant that he could not recall if the swaying was left to right or front to back. But he did maintain that there was a slight sway from left to right as he walked in the video. His elaboration of this was that whatever the angle of the camera may have shown, it looked to him like there was a slight sway from left to right as Mr. Hidi was walking. Officer Peschier testified that he walked to the police car normally.
[29] As counsel for Mr. Hidi correctly submits, this court's opinion of what the video shows is determinative. I do not know what Mr. Hidi normally walks like so I will avoid the pitfalls of the word "normal" on which witnesses are so often impeached. But I am able to see a definite movement off of the straight as Mr. Hidi walks forward along his car. It is consistent with Detective Bruce Thompson's memory as corrected in cross-examination. I have already stated that I accept Bruce Thompson's evidence unreservedly – he was sober, he was attentive, and he was fair and honest in cross-examination. So Mr. Hidi's walking beside the car does not establish that his ability to drive was impaired by alcohol but it is not inconsistent with it.
The Proof That the Impairment of Mr. Hidi's Ability To Operate His Car Was "By Alcohol" As Charged
[30] To briefly repeat what I have said in the introduction, my analysis proceeds as follows. The driving was so bad that it is establishes that something was impairing Mr. Hidi's ability to drive. He was not driving properly and this manifested itself in different ways, the most serious being a collision with a guard rail on the left side of the highway requiring a full stop and reverse in the passing lane in order to right himself, the stopping a car in a live lane of traffic on a highway, switching from lane to lane in a swerving manner.
[31] Mr. Hidi consumed alcohol before driving, a sip of champagne, two bourbons and three beers over a lengthy but not ultimately specified time between finishing work and about 11 p.m., three hours and 45 minutes before he was stopped by the police. He had alcohol on his breath when Officer Peschier stopped him, another indication of alcohol consumption. There is no evidence of the size of a sip or of a single bourbon and whether it was measured or not. There is no evidence of the effect of such an amount of alcohol over such a time period on any one let alone Mr. Hidi. There is no direct evidence that it would or would not impair Mr. Hidi's ability to drive.
[32] Alcohol can impair the ability to operate a motor vehicle. This is obvious from the existence of the offence. No one challenges it. Mr. Hidi accepts it. His consumption of alcohol is one possible reasonable inference for the impaired ability to drive that he demonstrated.
[33] Many things can impair the ability to operate a motor vehicle. Fatigue, distraction from thinking about other things than driving, poor driving habits and other reasons apart from alcohol. Impaired driving even after consuming alcohol does not prove that the ability to operate the motor vehicle was "by alcohol."
[34] However, the reason why a driver's ability to drive was impaired is a fact to be inferred like any other. When this fact is an essential element of the offence, as it is here by the words "by alcohol" in s. 253(1) (a) and the charge, that fact must be proven beyond a reasonable doubt. And when, as here the evidence is circumstantial, "the evidence must not permit any other rational conclusion but that the accused is guilty"; this is the rule of proof by circumstantial evidence. R. v. Charemski, [1998] 1 S.C.R. 679, at paragraph 4, per Justice Bastarache.
Other Possible Causes of Mr. Hidi's Impaired Driving
[35] Mr. Hidi submits that there are other possible rational explanations for his impaired driving alternative to alcohol that raise a reasonable doubt that his impairment was "by alcohol".
[36] These reasons, grounded in his evidence, are his fatigue, and his bad driving habit of checking his cell phone while driving and his decision to deal with his fatigue and lack of alertness by resorting to a strategy he had employed in the past, changing lanes for no other reason than to help himself stay alert.
[37] I find that no reasonable explanation alternative to alcohol has been established so as to raise a reasonable doubt.
[38] This is for two reasons. Although I accept Mr. Hidi as an honest witness that is not the same as finding him to be a reliable witness about his driving. He is not able to accurately describe how he drove; Detective Thomas who was behind him can. Therefore his explanations of tiredness do not amount to a reasonable alternative to being impaired by alcohol.
[39] Secondly even if I were to accept his explanation in itself, fatigue and inappropriate use of his cell phone while driving shows that something was impairing his ability to stay alert and his judgment as he drove. Judgment is part of operating a motor vehicle, and here, his admitted choices to reach for his cell phone and check his phone while driving tired and after having consumed alcohol, demonstrate a lack of judgment. In other words, this reasonable alternative explanation to alcohol also proves that something that needs explaining was impairing his judgment related to driving.
Mr. Hidi's Explanation for His Driving; Fatigue and Cell Phone Use
[40] Mr. Hidi testified that leading up to April 17, he had been working long hours and that particularly on April 16th he had woken up early and worked all day. He completed a successful project and went to a restaurant where he had the sip of champagne, 2 bourbons and a beer. He then returned to his office and then sometime between 9 and 9:30 p.m. went to the Spirit House where he had a couple of beers over the period of an hour and a half or so. Towards the end of that time he saw Mr. Barkley who did not think his ability to operate a motor vehicle was impaired by alcohol as he was walking fine and speaking clearly.
[41] So around 11 p.m. he began to drive. He had no trouble getting into his car or driving out of his parking spot but while driving along the lakeshore he felt tired. He pulled off the highway at Islington, turned north and pulled into an industrial parking lot to rest. He rested for around three hours. He put his seat back, closed his eyes and tried to sleep. He did succeed in sleeping for about two one-hour stretches.
[42] He then got out of the car, walked a bit and felt less tired. He testified that he felt sufficiently awake to drive home. He testified that he was alert.
[43] Although he originally had a destination, he decided to drive home and entered the Gardiner eastbound. He testified that he was driving normally and there is no evidence that he was not before Detective Thompson saw him.
[44] He testified about what Bruce Thompson may have seen. He said that his cellphone slid onto the floor and that he slowed down in the right lane to reach over and pick it up. This presumably is the full stop in the right lane that Thompson saw. If it is not, then Mr. Hidi has no recollection of his driving because Thompson saw a stopping in the right lane. He also testified that he was checking his cell phone to see if there were any messages as he often did before using a phone and driving was prohibited. He said that he was checking to see if there was a message from his wife, though he had already checked this in the parking lot.
[45] He testified to two reasons for moving from lane to lane. One was that as a result of checking messages he may have moved a little more from lane to lane. He also testified that he changed from lane to lane in order to break the monotony, something he commonly did.
[46] He testified to two reasons for moving from lane to lane. One was that as a result of checking messages he may have moved a little more from lane to lane. He also testified that he changed from lane to lane in order to break the monotony, something he commonly did.
[47] On all three observations of Detective Thompson, Mr. Hidi is explaining driving that he has diminished in his mind or does not correctly recall because it is not the driving that Detective Thompson observed and I have found as a fact to have occurred. He did not slow down to retrieve his cell phone; on that occasion he came to a stop.
[48] The closest that Mr. Hidi's description his driving comes to Detective Thompson's is in regard to the swerving that attracted Thompson's attention. Apparently his description of moving more from lane to lane describes the swerving from lane to lane that Detective Thompson observed. Mr. Hidi testified that he signaled and Thompson agreed that he did use his signal though he sometimes had the signal on without changing lanes or when he could not have changed lanes to the left. Mr. Hidi is describing a lane change and Thompson is describing a swerving between lanes. Thompson agreed that the swerving from lane to lane would have been consistent with deliberately changing from lane to lane to maintain alertness.
[49] But, he did not brush the guardrail, he hit it. And he did not, according to Thompson, hit it as he drove in the left lane. He swerved into the passing lane, came to a complete stop for about five seconds and then accelerated and struck the concrete barrier with the front of his car at an angle of 15 degrees.
[50] There is more evidence of impairment that tiredness does not explain. Mr. Hidi described his checking his cell phone as foolish. He had consumed alcohol, he was tired from work, he had been too tired to drive to the pub to meet his friends requiring a three hour rest stop and he was opening his windows and changing lanes to stay alert. This was not the time to be foolishly checking his cell phone. This is an error in judgment not explained by the tiredness of which he was well aware. Operating a motor vehicle includes exercising good judgment as well as the physical operation.
[51] And on the issue of alertness, Mr. Hidi was successfully impeached in a skillful cross-examination, again, not in the sense that he was shown to be deliberately dishonest but in the sense that Crown counsel demonstrated that on his own evidence, there was evidence that undermined his evidence.
[52] He testified that when he left the parking lot, he walked and satisfied himself that he was awake. But he agreed that though he stopped to sleep because he was tired and after sleeping an hour to an hour and a half in segments he was still a bit tired but less tired. He attributed this to his 60 to 70 hour work weeks. He was not as tired when he was driving. He asked crown counsel to define tired. Having worked a long day and a fair bit of stress, but felt better. He was not sleepy. He was alert at a normal level of alertness. But he rolled the windows down to stay alert as a precaution, on the highway with the temperature in single digit Celsius.
[53] I believe Mr. Hidi that he rolled down the windows to stay alert. But as with his stopping in the right lane and the stopping in the left lane he attempted to minimize his difficulties with driving. He had just rested for two and a half to three hours in an industrial parking lot on a weeknight instead of driving to meet his friends or go home. This is unusual but he testified that he does it and I believe him. But he had already taken extreme precautions about not driving while tired or unalert. If he really was awake and alert as he testified, there was no need for further precautions. Further precautions were only necessary if he was concerned about his alertness and awakeness. He was either unalert or unawake enough that he felt that he had to deal with it but was reluctant to concede that in cross-examination.
[54] So I do not accept Mr. Hidi's evidence as to why he stopped in the right lane, switched lanes so often in a swerving manner and stopped in the left lane and hit the guardrail.
[55] There is no alternative reasonable explanation for the impaired driving and the consumption of alcohol is one that is supported by the evidence.
[56] Mr. Hidi strongly relies on his speech and walking after he was stopped as well as the proper driving that he testified to before Thompson observed him and almost 3 km of driving while Thompson observed him as raising a doubt as to whether his driving was caused by alcohol. He also relies on the faultless driving after he came into contact with the guard rail.
[57] He relies on R. v. Singh, [1997] O.J. No. 1164, as authority for the proposition that even if the driving is terrible, if there is other evidence that shows lack of impairment by alcohol it is unsafe to convict.
[58] R. v. Singh was a decision of Justice LeSage sitting as a summary conviction appeal court and is binding on this court on any point that it decided. No authority is needed for the principle that impaired driving does not mean impaired by alcohol and if there is any doubt that the impairment was not by alcohol, or put another way that alcohol was not impairing the ability to drive, there must be an acquittal.
[59] The facts in Singh were similar in that the appeal judgment described the driving as worse than terrible and there were observations of the accused speaking and walking after the event that did not show signs of impairment. Justice LeSage describes the physical symptoms as being to all intents and purposes very good.
[60] Justice LeSage's reasons, in which he stated his principle in relation to the following conclusion of the trial judge that he reached after going through the terrible driving that is not set out in the judgment:
"Combined with certain indicia of impairment, that you had consumed alcohol and there was a strong odour of it indicates that you are impaired."
[61] Justice LeSage stated:
"I have difficulty coming to that same conclusion and I have difficulty in agreeing with the learned trial Judge that a properly instructed jury could on this evidence be satisfied beyond a reasonable doubt that the accused was impaired. If one were to take the driving by itself and take the smell of alcohol with that driving, then perhaps there would be a basis upon which to found a conviction. But when one looks at all of the other indicia which are more consistent with non-impairment than they are with impairment, I believe that it would be dangerous to base a conviction on that evidence." my emphasis
[62] It is clear that both the trial judge and the appeal judge used "impaired" to mean "ability to operate a motor vehicle impaired by alcohol". I leave that aside. So the principle of Singh is that if indicia consistent with non-impairment of ability to operate a motor vehicle by alcohol raise a doubt that there is impairment by alcohol of ability to operate a motor vehicle by alcohol, there must be an acquittal. I am not only bound by that but I agree.
[63] I have already discussed Mr. Hidi's position of seeking to exclude the evidence after the violation of the right to counsel and then relying on his speech and walk as the indicia of non-impairment. But taking the position most fair to Mr. Hidi, that is discounting officer Thompson's observations and relying on Mr. Hidi's walk and speech at the police station, I do not find that they are more consistent with his ability to operate a motor vehicle not being impaired by alcohol, so as to raise a doubt that alcohol was impairing his ability to drive.
[64] These are observations 40 minutes after Detective Thompson's observations. They have nothing to do with the judgment and maneuvers involved in driving but his ability to operate a motor vehicle may well have been not impaired by alcohol by the time he was observed at the station. His behavior in the back seat of the police car is rude but unremarkable and consistent with someone being painfully handcuffed to the rear.
[65] The only observation close in time to Mr. Hidi's driving is his leaving his car and walking. Detective Thompson said that he swayed at this juncture and my observations of the video are not inconsistent with that.
[66] There is no evidence relating the proper taking things out of a pocket, signing documents, standing and walking to ability to operate a motor vehicle, in all of its complex mental and physical requirements and judgments in this case and there are none in Singh. So, on this evidence, I do not find indicia that raise a reasonable doubt about ability to drive impaired by alcohol.
[67] The driving was so bad that it proves the ability to drive was impaired. There is proof of alcohol consumption which can be one reason for the impaired ability to drive; the impairment may be slight. There is no other reasonable explanation for the impaired driving that eliminates alcohol as one of the reasons. The Crown has proven every element of the offence beyond a reasonable doubt.
Released: September 28, 2017
Brent Knazan Ontario Court of Justice