Court File and Parties

Ontario Court of Justice

Date: 2018-04-19

Court File No.: Newmarket 17-02833

Between:

Her Majesty the Queen

— and —

Lerrell Stennett

Judgment

Evidence heard: March 19, 20, 2018

Delivered: April 19, 2018

Counsel:

• Mr. Philip Hsiung, counsel for the Crown
• Ms. Susan Pennypacker, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Stennett drove to Luxy's Nightclub with friends to celebrate his brother's birthday. A special booth at the nightclub had been booked for $450 that came with a large bottle of Grey Goose vodka and champagne. At the end of the evening Mr. Stennett left the club with two passengers. He drove across Highway 7 and as he approached Kipling Avenue his car rotated, he lost control and the car left the roadway. His vehicle hit and cut down two light poles then continued on into a car sales lot. It hit a large Toyota Tundra truck. The force of that collision pushed the Tundra into a line of Ford trucks and pushed several together. A parked SUV was also hit. There was extensive damage to the Tundra truck and Mr. Stennett's car and further damage to several other vehicles.

[2] Kaija Harris was the front seat passenger in Mr. Stennett's vehicle. She suffered life-threatening injuries as a result of the crash. Mr. Stennett was very seriously injured and the other passenger, Amanda Lee, was also injured. Both passengers suffered "bodily harm" within the meaning of s.255(2). Mr. Stennett is charged with:

• Impaired Operation Causing Bodily Harm s. 255(2)
• Dangerous Operation Causing Bodily Harm s.249(3)
• Impaired Operation s.253(1)(a)

[3] The issues for decision include whether the Crown has proved the alleged impairment beyond a reasonable doubt where the accused showed none of the signs of physical impairment typically associated with alcohol consumption and his blood alcohol concentration (BAC) at the time of driving would have been between 66mgs to 96mgs. The Crown's case on this count relies upon the accused's projected BAC, the manner of driving, and expert toxicology evidence. The defence submits the toxicology evidence cannot be conclusive on this point. When reviewed in the context of all of the evidence including the absence of physical indicia, the defence submits a reasonable doubt remains.

Impaired Operation

[4] There is no direct evidence of the accused's driving. Mr. Stennett was seriously injured in the collisions and the evidence shows he has little reliable recollection of his driving or the events leading up to the crashes. The accident reconstruction officer Detective Constable (DC) Walton was unable to determine the precise speed of the accused's vehicle given the number of impacts with different stationary objects, the extensive damage and the lack of an EDR (Event Data Recorder). The defence submits that with no fixed speed there is no evidence of speeding or other driving deficiency on the part of the accused so the collisions are "unexplained", providing no support for the Crown theory in relation to either count. The investigating officer, DC Rorke did refer to the collisions as "unexplained" when describing the initial steps in his investigation leading to the application for a warrant to seize the accused's blood at the hospital.

[5] Even though the reconstruction officer DC Walton was not able to fix a precise number to the accused's speed, there is substantial circumstantial evidence about that aspect of the accused's driving. An examination of the vehicle after the crash showed no prior defect that could have contributed to the loss of control. At that point Highway 7 is two lanes in both directions, straight with no obstructions. This is not a high-speed highway, the maximum in that area is 60km/hr. Mr. Stennett was familiar with the road. The surface of the road was wet but the evidence shows other vehicles including police and emergency vehicles managed to travel on that road safely. There was no evidence of skid marks prior to the loss of control or other evidence that could suggest the intervention of an external factor such as a pedestrian in the roadway.

[6] Mr. Stennett's car was travelling fast enough on the wet road that his speed plainly "exceeded the available friction" as described by DC Walton in the Collision Reconstruction Report. His speed was so fast that he didn't just "fishtail" or skid, but the entire car rotated and left the roadway. Despite the rotation the car was going fast enough that it hit a street light pole and knocked it down causing it to break into pieces. The car had enough speed that it continued on and hit another, smaller light pole knocking that down as well. Even after those two impacts the car was still travelling so fast that it continued on into a car lot and hit a parked Toyota Tundra truck. The force of that impact destroyed the driver's side of the Tundra truck including the truck bed as shown in the photographs taken at the scene. The Tundra was hit with such speed that Mr. Stennett's car moved that truck and pushed it into a line of Ford pickup trucks. That impact was forceful enough to push several of those large Ford trucks together damaging further vehicles. Mr. Stennett's car also damaged a Ford Expedition SUV. The high force of the impacts is also shown in the extensive damage to the accused's car.

[7] While the reconstruction officer was unable to fix a precise number to the accused's speed, the whole of the evidence including the accident reconstruction report and the circumstances of the collisions shows plainly that at the time the accused lost control he was driving at a speed far beyond what was safe under those conditions. That's the only reasonable inference on the whole of the evidence. His speed was not simply a minor departure from the required safe standard, but plainly a marked one given the trail of violent collisions that resulted.

[8] Ms. Hird is a forensic toxicologist with the Center of Forensic Sciences (CFS) in Toronto. She trained with the Forensic Science Service in the United Kingdom and has extensive experience in this area. Both parties agreed she was qualified to give opinion evidence with respect to the determination of the accused's blood alcohol level at the time of driving and the effects of alcohol on a person's ability to operate a motor vehicle. Ms. Hird gave detailed answers to questions posed by both counsel and she explained the evidentiary basis for the opinions she expressed. I find her evidence is credible and reliable in the context of all of the evidence.

[9] Two ranges were identified for the accused's blood alcohol at the time of driving – 76mgs to 106 mgs/100ml and 66mgs to 96mgs/100ml. Ms. Hird explained that the two ranges result from the difference between whole blood analysis at CFS as compared to blood serum analysis at the hospital and the different conversion factors used. She explained why the lower range of 66 to 96mgs/100ml is the one that most reliably represents the accused's blood alcohol concentration at the time of driving. In cross-examination she explained that range is very conservative and includes several assumptions that tend to lower the projected BAC.

[10] Ms. Hird described driving as a complex task that requires a number of mental faculties to simultaneously monitor circumstances inside and outside the vehicle and react appropriately. She testified that the effects of alcohol on driving ability are well studied. Closed course driving studies, epidemiological studies of crashes and lab studies show mental processes essential for driving including divided attention (the ability to monitor multiple things at one time), choice reaction time, and judgment of speed and distance all show impairment at blood alcohol readings of 50mgs and increase from that point. This finding applies generally to all persons regardless of gender, height, weight or background. While it's not impossible that a particular person might not be impaired at 50mgs in the sense that one must always allow for an "outlier" or exceptional case, a large body of studies have consistently shown driving impairment in all persons at a BAC of 50mgs. The possibility of an outlier diminishes as the BAC rises above 50mgs. Impairment of mental faculties is unlike impairment of physical faculties where experienced drinkers can learn to control the effects of drinking and display few physical symptoms even at relatively high blood alcohol levels.

[11] Ms. Hird was asked a hypothetical question about a person driving with a BAC of 66mgs on a road they were familiar with. She testified that their ability to operate the vehicle would be impaired at that level. That's not to say everyone driving at that level would end up in a collision. They might well be able to drive successfully between two points if nothing unusual happened, but if they encountered an unusual circumstance they might not properly judge the situation and might not react properly. In controlled tests, persons at that level assess risk incorrectly and their reaction to risk is deficient compared to their reactions when tested with no alcohol in their system. For these reasons, Ms. Hird disagreed with the suggestion in cross-examination that without physical indicia of impairment she couldn't say a person's ability to drive would be impaired at 66mgs. She agreed she would not be able to rule out the possibility of a theoretical, exceptional case without specific testing.

[12] I agree with the defence that the evidence of Ms. Hird must be assessed in the context of all of the evidence. One of the important circumstances in that regard is the lack of any observed physical indicia at the scene or at the hospital. Some observations commonly cited as indicia of alcohol impairment speak only to the consumption of alcohol but say little about its effects. The odour of alcohol, glassy eyes and similar indicators are relevant as consistent with alcohol consumption but they say little about the degree of consumption or effects related to driving – R v Cooper [1993] OJ No 501 (Prov Div).

[13] Observations of the accused related to impairment in the ability to drive are typically detected only when impairment has reached a significant level. Common impaired "indicia" such as loss of balance, problems with walking or other motor movement and slurred speech all indicate a fairly high degree of impairment or intoxication. Yet the legal test does not require that the Crown prove the driver was falling down drunk. The test in R v Stellato, [1994] SCJ No 51 and the expert toxicology evidence heard in this trial recognize that impairment in the ability to drive can pose a threat to public safety even before a driver displays those marked physical indicia. I agree with the defence that the absence of physical indicia of impairment or intoxication here is important, but given the evidence of Ms. Hird, the lack of physical symptoms is not necessarily determinative of the issue.

[14] The circumstantial evidence as to the accused's driving shows the indicia of mental impairment as described by the toxicologist. Mr. Stennett was able to travel across Highway 7 to Kipling without incident, but he failed to perceive the need to slow his speed and he failed to react to the wet road condition. The evidence shows Mr. Stennett is not the rare, theoretical outlier as discussed in cross-examination. On the contrary, his driving errors show the effects of alcohol impairment on the mental faculties necessary to drive safely that were identified by the toxicologist. The Crown is not required to prove intoxication or marked impairment. Considering all of the evidence and the legal test, I find the lack of physical indicia and other circumstances do not reasonably leave a doubt. The Crown has proved impairment by alcohol in the mental faculties necessary for safe driving.

Dangerous Driving

[15] The whole of the evidence including the circumstances of the multiple collisions shows that the accused drove far in excess of the speed that was safe for the road conditions that evening. He was driving while his ability to judge safe speed and react to road conditions was impaired by alcohol consumption which is a departure from the standard of care required for safe driving. The Crown has proved beyond a reasonable doubt that the accused's manner of driving was dangerous to the public and a marked departure from the standard of care a reasonable person would observe.

Conclusion

[16] Considering all of the evidence heard, I can find no evidence that reasonably could leave a doubt on any of the three counts. I find the Crown has proved the charges alleged beyond a reasonable doubt.

Delivered: April 19, 2018

Justice Joseph F. Kenkel