Court File and Parties

Ontario Court of Justice

Date: 2018-10-09

Court File No.: Durham Region 998 16 00244

Between:

Her Majesty the Queen

— and —

John Griner

Before: Justice J. De Filippis

Heard on: April 26-27, August 25, & October 10, 2017; March 22-23, & August 20, 2018

Reasons for Judgment released on: October 9, 2018

Counsel:

• Mr. N. Young — counsel for the Crown
• Mr. G. Orr — for the defendant

Introduction

[1] The defendant was charged with having care and control of a motor vehicle while his ability to do so was impaired by alcohol and at a time that his blood alcohol level exceeded the legal limit. He is also charged with the third offence of dangerous driving. The charges arise as a result of events that occurred on March 20, 2016 at the City of Pickering. The Defence alleged violations of sections 7, 8, 10(a), 10(b) and 11(d) of the Charter of Rights and Freedoms. The Crown withdrew the excess blood alcohol charge (i.e. "over 80") during the trial because of difficulties in the evidence of the person who conducted the breath tests. Consequently, the Defence abandoned its Charter claims.

[2] The following facts are not in dispute: On the day in question, a motor vehicle was observed by witnesses to be driven erratically, hit another car, and eventually ending up in a ditch at the side of a road. The defendant was seen in that car at this scene. His drunkenness was such that he could not lawfully have care and control of a motor vehicle. The vehicle, a Lexus, is registered to another man, Mr. Lake Judge. The latter testified that he was the driver, not the defendant.

[3] Having regard to the abandonment of the over 80 charge and Charter motions, my review of the evidence will focus on the remaining issues: Has the Crown proven that the defendant was the driver and/or had care and control of the motor vehicle? In this regard, is an admission of this fact, made by the defendant at the scene, admissible at common law and/or reliable? I heard from eight witnesses. These reasons explain why I find the defendant guilty of the impaired and dangerous driving counts.

Evidence

[4] Mr. Michael Gillespie is a police officer with the Toronto Police Service. He was off duty and driving southbound on Baldwin Street at about 9:45 PM. As he approached an intersection with a red light, he saw a small black car with a woman driver. His attention was then immediately drawn to sound of an engine revving and tires squealing. He saw a silver Lexus aggressively reversing. As the witness proceeded to make a right hand turn onto Hwy 7, the Lexus was behind him. In his rear view mirror, he saw one person in the vehicle; a man with a grey or blue hoodie on his head. He said that the Lexus hit the centre median and the curb after passing him. It accelerated behind the black car at the intersection, swerved around it and almost collided with water filled barriers as it continued along the highway.

[5] Mr. Gillespie estimated the speed of the Lexus at up to 160 km/hour. This is based on the fact that he accelerated to 130 km/hr in following it and could not keep pace. As he passed the intersection of Hwy 7 and Lakeridge Road, he saw debris on the ground and a white car facing west in the eastbound lane. It was heavily damaged. The Lexus was on the opposite side of the road with its nose protruding from a ditch. The witness went to the Lexus and saw a man "body check the door to get out". When he asked if he was fine, the man said his cousin was driving and had left. Mr. Gillespie testified that the man at the scene was the same person he saw in his rear view mirror and that he had not seen anyone else exit the car. He identified this man as the defendant and noted that his speech was slurred. The witness was challenged about his ability to see the driver of the Lexus from his rear view mirror. He conceded that the windows to the Lexus were heavily tinted – but not the front window and added that the intersection where he made the observation was well lit.

[6] Ms. Brittany McAloney is the person who was driving the white car. She testified that after she passed the intersection of Lakeshore Road, she suddenly felt the car lurch forward. It spun around two or three times, hit a guard rail, and came to rest. She saw another car in a ditch across the road. She saw a man come to her from the vehicle. She did not see him actually exit from it but assumed he was the driver because there was nobody else in it or the area. The man had a strong odour of alcohol. She told him to stay away from her and he said, "I don't know why you're freaking out so bad." He returned to the car, entered the driver's seat and tried, unsuccessfully to drive it out of the ditch. The witness said she vomited. She also reported that she had to undergo physiotherapy for several months and that her car was "a write off".

[7] Mr. James Lowrie testified that as he approached the intersection in question he saw two sets of taillights, one of which "flashed" as it spun round. He identified Ms. McAloney as the driver of this vehicle and noted that she appeared disoriented. He also saw another car in a ditch with a man in the driver's seat. He later saw that man outside the car and overheard him say that his "cousin was driving and ran off".

[8] Ms. Katherine Bontje is the person who was driving the black car that was initially almost struck by the Lexus. She confirmed the erratic movements of the Lexus as described by Mr. Gillespie. On arrival at the accident scene, she assisted Ms. McAloney who was vomiting at the side of the road.

[9] Sgt. Simpson arrived on the scene at 10:05 PM in response to a dispatch about a possible impaired driver. He was told by Mr. Gillespie, who identified himself as an off-duty officer that the Lexus was being driven at a high rate of speed prior to colliding with another vehicle. He pointed to the defendant as driver of the Lexus and said he was impaired. The Defendant was leaning on a car at the time. Sgt. Simpson approached him and made it clear he was not there simply because of a collision but to investigate whether "this was an impaired driving matter." The officer asked the defendant if he was the driver of the Lexus and the defendant replied, "yes".

[10] Sgt. Simpson testified that he could smell alcohol on the defendant's breath and that his eyes were bloodshot. The defendant was unsteady on his feet and had to be held up by the officer, as they walked to the cruiser, so as not to lose his balance. Once there, he was arrested for impaired driving and subjected to a breath demand.

[11] PC Naylor arrived at the scene after Sgt. Simpson. He testified that sometime between his arrival at 10:21 and his departure at 11:10 PM, a man approached him and identified himself as Lake Judge and said, "do you need anything from me, I am the owner of the car" [Lexus] and provided his telephone number. The officer told this person that the car was being towed away. PC Naylor did not ask any questions and Mr. Judge did not offer further information. The officer testified that he does not know how or from where this man arrived on the scene or how and when he left.

[12] As already indicated, the subsequent events at the police station with respect to the breath demand are no longer relevant to this trial. I will note, however, that I watched a video record of his interaction with the breath technician. It is about 90 minutes in length. I have no doubt, based on the defendant's words and demeanor, that he was intoxicated.

[13] The Defence called Mr. Lake Judge as a witness. Before testifying he sought the protection of section 5 of the Canada Evidence Act and section 9 of the Charter. He is 35 years old, employed as a specialist roofer and single with two children who reside with their mother. He testified that he has known the defendant for 18 years. They are very good friends and see each other three to four times a week. He referred to the defendant as "my cousin" because "when you are that close you refer to each other as family".

[14] According to Mr. Judge, at the time of these events, he resided in Pickering Village, a substantial distance away from the scene of this collision. At the time he owned two vehicles; a 2014 Lexus and 2002 Kia Minivan. He paid $50,000 for the Lexus and added that the "back and back side windows were super dark" and the front one was "half that tint". He also testified that at this time he was "having issues" with the Lexus; "the accelerator would stick sometimes so that car won't move and at other times stick and keep driving". Due to a busy work schedule he "hadn't had time to get it fixed".

[15] Mr. Judge testified on the day in question, the defendant called him to be picked up at a gas station at Thickson Rd and Winchester Street "because he was super drunk". The witness said he was wearing a blue hoodie, had not been drinking, and drove his Lexus and met the defendant; "So I went there…I got him to lay down in the back of my car and drove away". He did this because he did not want the defendant to be in the front seat in case he vomited. He added that soon after this, "the accelerator started to stick at a light at Baldwin or Brock and my car wouldn't go…I kept trying and the car took off…I guess the accelerator kicked in….I was going fast, passed some cars, and hit a curb…I was trying to mess around with my pedal…I had leaned down with my hand to pull accelerator up and when I looked up there was a car there…I hit it and spun out and went into ditch on north side". Later, he said that he hit a curb while bent over to pick up a dropped cigarette. Mr. Judge explained that he "had a severe panic attack" and walked away to smoke a couple of cigarettes. He noted that the defendant was "all shook up and swearing; he didn't know what was happening".

[16] Mr. Judge said he walked "a block and a half" and returned to the scene in "30 to 40 minutes….I did so because it is my car and I got in an accident…I noticed a cop and a few people parked on the side of the road, I went to the cop and identified myself to tell him what happened". Mr. Judge explained that "I didn't tell him I was the driver because he cut me off and said he'd be in touch, so I called a buddy to pick me up". He added that he was not subsequently contacted by the police and never did tell anyone he was the driver of the Lexus. He justified this by pointing out that the next day the defendant told him, "don't worry about it, it will work out, there is no evidence against me, I don't know what they're talking about". The witness said, "I am coming forward now as I don't want him to get in trouble for something he didn't do".

Analysis

[17] The Crown must prove its case beyond a reasonable doubt. If the Defence calls evidence there must be an acquittal if the testimony is believed or the testimony is not believed, but nevertheless raises a doubt, based upon reason. An acquittal will follow even if the Defence evidence is not believed and does not leave a doubt, based upon reason, but the remaining evidence fails to prove that the defendant is guilty: R v W.D. (1991), 63 C.C.C. (3D) 397 (S.C.C.). In determining if the Crown has discharged its burden of proof, all evidence may be considered. This also means that any Defence evidence should not be viewed in isolation.

[18] The Defence argues that the Crown has failed to prove its case: Mr. Judge is the owner of the car in question and testified he was the driver. Nobody saw how he arrived and he does not live in the area. In this regard, reliance is placed on the defendant's statement at the scene that his cousin was the driver and had fled. Mr. Judge testified that they referred to each other as cousins. It is also submitted that the testimony of Mr. Gillespie that the defendant was the driver cannot be relied upon because of the tinted windows and that he only saw one occupant because the defendant was lying in on the back seat. Counsel suggests that Mr. Judge fled the scene "not knowing the defendant would be foolish enough to incriminate himself by moving from the back seat to the front seat". Moreover, the Defence cites R v Wren, [2000] No. 756 (O.C.A.) in arguing that the defendant's attempt to drive the car is irrelevant because it could not be moved from the ditch and did not pose a risk to public safety. Lastly, it is asserted that Sgt. Simpson's testimony that the defendant admitted being the driver cannot be relied upon because it was not audio or video recorded and, in any event, the statement is not voluntary within the meaning of R v Oickle, 2000 SCC 38, 2000 2 S.C.R. 3 (S.C.C.).

[19] I will begin with the Defence evidence. I have no confidence in the testimony of Mr. Lake. Leaving aside the convenient coincidences that he was wearing a blue hoodie, similar to the one worn by the defendant and considers himself to be his cousin, despite not being related, his testimony cannot be believed.

[20] Nobody saw more than one person in the Lexus. There is no suggestion any witnesses are lying about this. However, they could be shown to be mistaken if it is true that the defendant was stretched out in the back seat of the car. This cannot be true: Even ignoring the strange decision to have the defendant lie there, without a seatbelt, in a mechanically unfit car, it makes no sense, as claimed by Mr. Judge, that the reason for this was to prevent him from throwing up in the front seat. It is no easier or more pleasing to clean up vomit from the back seat upholstery and floor.

[21] The sticky accelerator pedal evidence would explain the erratic driving that evening. It is a serious safety issue. According to Mr. Judge this problem had existed for some time. Fortunately, Mr. Judge had a second motor vehicle. Yet, he chose to drive the one that was mechanically unfit. Even if this had been adequately explained, there is another reason to conclude this story is fabricated: What initially caught the attention of Mr. Gillespie is the fact that the Lexus suddenly reversed and then accelerated forward. The sticky pedal accounts for unexpected movement by the car. It does not dictate the direction of the vehicle; that is a function of the transmission. Mr. Judge did not suggest there was any difficulty there. I must conclude that he did not know, or had forgotten, about this part of the Crown's case.

[22] Mr. Judge would have me believe that he struck a curb because he bent down to pick up a cigarette, while also struggling with a defective accelerator. This improbable story does not explain why, afterward, the Lexus was seen to swerve as it continued on its journey. In this regard, I note that a sticky accelerator does not affect the steering mechanism.

[23] Assuming Mr. Judge left his shocked and puzzled "cousin" after the accident because of a panic attack, this does not explain why, when he returned, he did not ask anyone about the welfare of his good friend. He simply said he was the owner of the Lexus. Mr. Judge did not reveal that he was the driver until about 18 months later when he testified before me. Since he claims not to have consumed alcohol, there would be no reason, after his return from the panic attack, to not only inform PC Naylor that he owned the car but that the man who had been taken away was not the driver. His assertion that the next day he was re-assured by the defendant that he need not say anything because "the police had nothing on him" defies belief.

[24] It is impossible to accept Lake's testimony. This does not mean I should find the defendant guilty. However, the evidence tendered by the Crown persuades me to do so.

[25] The defendant initially told Mr. Gillespie that his cousin was the driver. Mr. Gillespie replied that this could not be true as he had not seen another person. Soon after, Sgt. Simpson arrived and was told by the defendant that he had driven the Lexus. This brief conversation at the roadside does not raise reliability concerns. I understand why it was not audio or video recorded and am not troubled by this. Moreover, there can be no doubt that the admission was voluntary. Sgt. Simpson made it clear that he was investigating a criminal offence of impaired driving. There were no threats, promises, or police trickery. It is not suggested the defendant lacked an operating mind. In all the circumstances, the fact that Sgt. Simpson did not inform the defendant of his right to counsel or caution him before asking if he was the driver does not mean the statement is not voluntary.

[26] Even without the defendant's confession, there can be no doubt that he was the driver of the car at all material times. I come to this conclusion for several reasons. Contrary to the testimony of Mr. Judge, who said the defendant was shocked and confused after the accident, Ms. McAloney described him as being calm. There is nothing to suggest the defendant asked anybody how the accident occurred – something one would expect if he had just been jolted from a drunken stupor. Although the defendant initially said his cousin was the driver and had fled, he never – at the scene or later after his arrest – identified this person as Mr. Judge, nor did he make any attempt to contact him or put him in touch with the authorities.

[27] Mr. Gillespie testified that the person he previously saw driving the Lexus erratically was the same driver that was at the accident scene. This is the defendant. His testimony was not successfully impeached on this point. Any doubt about this matter is extinguished by the fact that the defendant tried to drive the badly damaged Lexus out of the ditch. There would be no reason to do so if Mr. Judge had been the driver and had suddenly fled. The truth of the matter is that his actions reflect consciousness of guilt.

[28] It is also significant that nobody saw Mr. Judge in the area until at least 30 minutes after the accident (on Mr. Judge's evidence) or as long as 80 minutes later (on PC Naylor's testimony). Having rejected Mr. Judge's testimony, I cannot say where he came from or how he arrived. However, this is no reason to cast doubt on my conclusion.

[29] I find the defendant guilty of the two offences. Both are based on the same set of facts. Subject to submissions on point, I would stay one of these findings of guilt on the basis of R v Kienapple, [1975] 1 S.C.R. 729.

Released: October 9, 2018

Signed: Justice J. De Filippis

Footnote

[1] This six day trial took 18 months to complete. This delay should be explained and is due to a number of factors: The original two day trial estimate was erroneous. On October 10, 2017 the trial could not continue because the defendant was ill and another date could not be selected until four months later because Defence counsel had other court commitments.