Court File and Parties
Ontario Court of Justice
Date: 2018-11-16
Court File No.: Hamilton 18-3720
Between:
Her Majesty the Queen
— and —
Danny Sousa
Before: Justice J.P.P. Fiorucci
Heard on: October 10, 2018
Reasons for Judgment released on: November 16, 2018
Counsel
A. McLean — counsel for the Crown
J. Stilman — counsel for the defendant Danny Sousa
FIORUCCI J.:
INTRODUCTION
[1] On April 8th, 2018, Danny Sousa was charged with Impaired Operation of a Motor Vehicle and Operating a Motor Vehicle with Over 80 milligrams of Alcohol in 100 millilitres of Blood ("Over 80").
[2] Mr. Sousa had filed a Charter application seeking exclusion of evidence. The trial started as a blended voir dire. The Crown withdrew the Over 80 charge midway through the trial.
[3] The sole issue is whether the Crown has proven the remaining Impaired Operation charge beyond a reasonable doubt.
THE EVIDENCE
[4] On April 8th, 2018, Mr. Sousa's truck collided with a car driven by Mr. Nigel Rennie. Mr. Sousa knew his truck had collided with Mr. Rennie's car, but did not remain at the scene of the collision. Mr. Sousa drove away, pursued by Mr. Rennie.
[5] After about a minute, Mr. Sousa stopped his truck. Mr. Rennie spoke with Mr. Sousa. As a result of this conversation, and other observations he made, Mr. Rennie called the police.
[6] P.C. Stephen Whitaker attended at the roadside and spoke with both Mr. Sousa and Mr. Rennie. P.C. Anmar El-Hassen also attended at the scene and had a brief conversation with Mr. Sousa.
[7] P.C. Whitaker arrested Mr. Sousa for Impaired Operation based on information he received and observations he made. P.C. Whitaker transported Mr. Sousa to the police station, which was a short distance away from the location where Mr. Sousa and Mr. Rennie had stopped their vehicles.
[8] The Crown relies on the testimony of Mr. Rennie and P.C. Whitaker. On consent, the parties filed the notes and witness statement of P.C. El-Hassen. The breath room video showing Mr. Sousa's interactions with the Qualified Breath Technician was made an exhibit at the trial.
[9] The Crown conceded that the breath readings were not admissible to support the Impaired Operation charge, and no expert toxicology evidence was led.
[10] Mr. Sousa did not testify or lead any other defence evidence.
Nigel Rennie
[11] Mr. Rennie was driving a Nissan Maxima motor vehicle, which is a mid-sized sedan. He was stopped at a red light at the intersection of King Street East and John Street South, in the City of Hamilton. Mr. Rennie was stopped in the far left lane of traffic.
[12] When the light turned green, Mr. Rennie started driving. Just before Mr. Rennie reached Hughson Street North, Mr. Sousa's truck "merged into" Mr. Rennie's car. The driver's side of Mr. Sousa's truck hit the passenger side of Mr. Rennie's car.
[13] Mr. Rennie did not see Mr. Sousa's truck before the collision.
[14] Mr. Rennie was still in the far left lane of traffic when the collision happened. As a result of the impact, Mr. Rennie's car went into a guardrail. Mr. Rennie described the impact as "really heavy".
[15] Mr. Sousa did not remain at the scene of the collision. After striking Mr. Rennie's car, Mr. Sousa veered to the right and kept driving slowly on King Street East. Mr. Rennie followed behind, honking his horn trying to get the driver of the truck to stop.
[16] Mr. Sousa drove for about a minute before stopping his truck. In that one minute, Mr. Rennie did not observe any erratic driving, like swaying or straddling of lanes, or an inability to maintain a straight direction. Mr. Rennie noted nothing unusual about two right turns Mr. Sousa made before stopping.
[17] When Mr. Sousa stopped his truck on King William Street, Mr. Rennie parked his car in front of the truck. Mr. Rennie got out of his vehicle and spoke with Mr. Sousa. Mr. Sousa acknowledged that he had hit Mr. Rennie's car. When Mr. Rennie asked him why he had not stopped, Mr. Sousa replied that he was a little bit scared.
[18] Mr. Rennie asked Mr. Sousa to provide his identification and driver's licence. Mr. Sousa was looking through his car and e-mails and "was taking quite some time" looking for the documents. Mr. Sousa could not find the documents. This made Mr. Rennie uncomfortable because the whole side of his car was damaged and he was concerned that Mr. Sousa couldn't produce any of the documents he had requested.
[19] Mr. Rennie also observed that Mr. Sousa was swaying a little bit.
[20] Mr. Rennie called the police. When asked why he called the police, Mr. Rennie testified, "[b]ecause I didn't have any documents presented to me. Plus, the individual in front of me seemed under the influence". When asked to describe that further, Mr. Rennie stated that Mr. Sousa was just swaying, slurring, and wasn't clear with him about whether he had the documents.
[21] Mr. Rennie also testified that Mr. Sousa "[w]asn't able to respond to me about the request I was making, effectively".
[22] Mr. Rennie noticed a slur in Mr. Sousa's speech. In cross-examination, Mr. Rennie gave the following evidence:
Q. All right. But, well you did have-there was some ongoing conversation with him. Right?
A. Just for the information.
Q. Yes. Okay. He was saying things to you….
A. And I did ask him if he did have anything to drink.
Q. You were having a –he was saying things to you. Words were coming out of his mouth. Right?
A. Yeah.
Q. All right and…
A. Like slurs, but I mean, again….
Q. What's that?
A. Slurs, but I mean then I really like-I wouldn't say it was a conversation …
[23] The police arrived five to ten minutes after Mr. Sousa and Mr. Rennie stopped their vehicles.
P.C. Stephen Whitaker
[24] At 3:49 a.m., P.C. Whitaker of the Hamilton Police Service received information about the motor vehicle accident, including the fact that the drivers had driven around the corner to the intersection of King William Street and Hughson Street North.
[25] P.C. Whitaker arrived on scene at 3:50 a.m.. He observed two vehicles parked on King William Street, one being a 2018 GMC Sierra truck registered to Mr. Sousa. Both drivers were sitting in their vehicles when P.C. Whitaker arrived.
[26] P.C. Whitaker spoke briefly with Mr. Rennie to check on his status. Mr. Rennie told P.C. Whitaker that he believed the other driver was impaired.
[27] P.C. Whitaker then spoke with Mr. Sousa outside Mr. Sousa's truck. P.C. Whitaker observed that Mr. Sousa's speech was slow and deliberate and that he was unsteady on his feet. He also observed that Mr. Sousa's eyes were glossy and dilated, and that Mr. Sousa had a slight odour of alcohol on his breath.
[28] P.C. Whitaker described Mr. Sousa as being unsteady while standing and unsteady as he was walking. P.C. Whitaker testified that he observed unsteadiness when Mr. Sousa got out of the truck and held onto the driver's door. He estimated that Mr. Sousa walked about twenty feet between his truck and the police cruiser. P.C. Whitaker made it clear in his evidence that Mr. Sousa was not falling over, nor did he need to be held up.
[29] When asked to describe the smell of alcohol, P.C. Whitaker stated that he smelled the slight odour of alcohol on Mr. Sousa's breath, not an "overpowering smell" when he was outside the truck. P.C. Whitaker testified that when Mr. Sousa got into the police cruiser, the odour of alcohol became much stronger.
[30] P.C. Whitaker arrested Mr. Sousa at 4:01 a.m. for Impaired Operation, which was followed by the breath demand. He left the scene with Mr. Sousa at 4:03 a.m., and arrived at Central police station at 4:05 a.m.
[31] The booking process occurred between 4:05 a.m. and 4:20 a.m.. Although the booking process was audio and videotaped, the booking video was destroyed and, therefore, was not available to be viewed at the trial. The Crown conceded that the Defence had made a timely request for the booking video, within the retention period. However, notwithstanding the timely request, the video was destroyed.
[32] Mr. Sousa spoke with Duty Counsel sometime after 4:20 a.m.. He entered the breath room at 4:45 a.m. where he provided samples of his breath to the Qualified Breath Technician at 4:54 a.m. and 5:17 a.m.
[33] During cross-examination, P.C. Whitaker acknowledged that he did not note any particular words that Mr. Sousa said at the scene that sounded slow and deliberate. P.C. Whitaker conceded that Mr. Sousa's speech at 4:05 a.m., when he arrived at the police station, would have been the same as it was at 3:50 a.m., when he was still at the roadside. P.C. Whitaker also agreed with Defence Counsel's suggestion that the booking video was not available to either confirm or contradict his position that Mr. Sousa exhibited "unusual speech patterns or notable speech patterns".
[34] P.C. Whitaker conceded that the booking video was not available to show whether Mr. Sousa was "exhibiting unsteady gait" when he was walking in the booking area, or difficulty standing up after sitting down.
[35] However, P.C. Whitaker conceded that there was nothing in his notes about Mr. Sousa being unsteady during the booking process, or having any difficulty standing up during the booking process. P.C. Whitaker fairly conceded that he did not believe that Mr. Sousa was swaying during the booking process.
[36] With respect to the disclosure request for the booking video, P.C. Whitaker testified that when the Defence made the request, he followed the normal procedure of sending a task to forensics. The normal practice is that forensics will then send the video to court. P.C. Whitaker never actually sees the DVD. Once he sent the task to forensics, P.C. Whitaker did not follow up with the request. He relied on the people who received the task. He believes the destruction of the video may have been the result of human error.
P.C. Anmar El-Hassen
[37] The notes and witness statement of P.C. El Hassen, which were filed on consent, show that the officer spoke with Mr. Sousa and "began to smell alcohol emanating from him". At that point, P.C. El Hassen cautioned Mr. Sousa and did not ask him any further questions.
[38] P.C. El Hassen did not note any other observations of Mr. Sousa or any indicia of impairment.
Breath Room Video
[39] I reviewed the Breath Room video which was made an exhibit at the trial. Mr. Sousa entered the breath room at 4:45 a.m.. He did not exhibit unsteadiness walking into the breath room. He was wearing no shoes, just socks. He also exhibited no difficulty or unsteadiness when he sat down.
[40] Initially, he gave mostly non-verbal and short responses to questions asked by the breath technician. He asked for certain questions to be repeated, such as the question about whether he was driving a motor vehicle. In the early part of the video, his answers to questions could be characterized as slow and deliberate, such as his reply to the question about where he had started driving from.
[41] In general, however, Mr. Sousa was polite, cordial and very cooperative throughout his interaction with the breath technician. In between the two breath tests, Mr. Sousa had a lengthy conversation with the breath technician about his work and had no difficulty responding to questions posed by the officer.
[42] During the course of the breath testing process, in response to a question asked by the breath technician, Mr. Sousa stated that maybe he had consumed two or three shots of whiskey.
[43] When the breath testing process was complete, Mr. Sousa left the breath room without difficulty and did not exhibit any sway or unsteadiness on his feet.
ANALYSIS
[44] What the Crown is required to establish beyond a reasonable doubt is some degree of impairment to operate a motor vehicle, from slight to great. Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether the impairment impacts on perception or field of vision, reaction or response time, judgment, or regard for the rules of the road. A court "must not fail to recognize the fine but critical distinction between 'slight impairment' generally, and 'slight impairment of one's ability to operate a motor vehicle'".
[45] A trial judge must consider the cumulative effect of all of the evidence as it relates to the issue of whether a driver's ability to operate a motor vehicle was impaired by alcohol. A trial judge is not to approach the question of impairment as involving a scorecard noting which indicia are present and which are absent. The totality of the circumstances must be considered.
[46] An unexplained accident can be an indication of impairment in the ability to drive. An unexplained accident, coupled with alcohol consumption may be sufficient to establish the driver's guilt for impaired operation of a motor vehicle by the consumption of alcohol. A trial judge must be careful not to shift the burden of proof in the analysis. However, a court cannot speculate as to other causes of the accident where no such evidence is called.
[47] It is not improper for a trial court to consider evidence that an accused consumed alcohol prior to driving as a factor relevant to the determination of whether an impaired operation charge has been proven. The consumption of alcohol must be a contributing factor to the driver's impairment. In the absence of expert testimony, a court is not permitted to take judicial notice that a person who consumed a certain amount of alcohol prior to driving was impaired.
[48] The fact that an accused does not appear to be as intoxicated at the police station as civilian and police witnesses describe him or her at the roadside is not necessarily inconsistent with a finding that his or her ability to drive was impaired by the consumption of alcohol when he or she was driving. Observable indicia of impairment are not static.
[49] A non-expert may give opinion evidence about impairment, and the evidence of a police officer is not entitled to any special consideration.
[50] I find that the following pieces of evidence, viewed in combination, establish the Impaired Operation charge beyond a reasonable doubt:
Mr. Sousa was involved in an unexplained collision with Mr. Rennie's car which resulted in Mr. Rennie's car being pushed into a guardrail;
Mr. Sousa did not immediately stop his truck, but instead continued driving. He was pursued by Mr. Rennie who was honking his horn trying to get Mr. Sousa to stop. The fact that Mr. Rennie did not notice any further bad driving in the minute or so that he followed Mr. Sousa does not negate the fact of an unexplained accident;
In the moments after the collision, when speaking with Mr. Sousa, Mr. Rennie noticed him to be swaying, slurring, and not being clear about whether he had the documents Mr. Rennie had requested. As Mr. Rennie described it, he "wasn't able to respond to me about the request I was making, effectively". Mr. Rennie confirmed that his observations led him to believe that Mr. Sousa was "under the influence", which is likely the reason Mr. Rennie asked Mr. Sousa if he had anything to drink;
When P.C. Whitaker attended at the scene, and spoke with Mr. Sousa, he noted that his speech was slow and deliberate;
P.C. Whitaker observed Mr. Sousa's eyes to be glossy and dilated;
P.C. Whitaker noted a slight odour of alcohol on Mr. Sousa's breath when speaking with him outside the truck. The odour of alcohol was much stronger when Mr. Sousa sat in the confined space of the police cruiser;
P.C. Whitaker described unsteadiness he observed when Mr. Sousa got out of his truck and held onto the driver's door, and while walking a short distance. The officer was clear in his evidence that Mr. Sousa did not need to be held up and was not falling over. Nonetheless, the brief observation of unsteadiness, in the minutes soon after the collision, is one piece of evidence to consider in the assessment of impairment;
P.C. El-Hassen's notation that he smelled alcohol emanating from Mr. Sousa was further evidence that Mr. Sousa had consumed alcohol prior to driving. The fact that P.C. Hassen did not note other indicia of impairment observed by Mr. Rennie and P.C. Whitaker does not raise a reasonable doubt regarding Mr. Sousa's impairment. There is no evidence about how much interaction P.C. El-Hassen had with Mr. Sousa beyond the brief conversation noted;
Mr. Sousa told the Qualified Breath Technician that he had consumed alcohol.
[51] I will now address the issue of the loss of the booking video. Defence counsel learned about the destruction of the booking video during the testimony of P.C. Whitaker. Mr. Sousa did not apply for a stay of proceedings based on lost evidence, pursuant to section 7 of the Canadian Charter of Rights and Freedoms.
[52] Defence counsel provided the case of R. v. Bero. In the Bero case, the accused did apply for a stay of proceedings based on lost evidence, pursuant to section 7 of the Charter. As no such application was made seeking a declaration that Mr. Sousa's Charter rights were violated and seeking a Charter remedy, I find it unnecessary to engage in a full analysis of whether the loss of the booking video was occasioned by some negligence on the part of the Crown or the police.
[53] Mr. Sousa's counsel, however, asked that I rely on the Bero case to resolve credibility and reliability issues with respect to P.C. Whitaker's evidence. Counsel submitted that P.C. Whitaker was not being completely forthright about his observations and was overstating the indicia of impairment. In this regard, the booking video would have been of assistance in either confirming or contradicting the indicia of impairment observed by the officer, including Mr. Sousa's speech, gait, any unsteadiness, or difficulty standing. Defence counsel submitted that this would have been the most relevant time to have the impartial evidence of the video since it was within about 15 minutes of the officer's interaction with Mr. Sousa at the scene.
[54] I agree that the booking video would have been of assistance in assessing any indicia of impairment exhibited by Mr. Sousa, especially between 4:05 a.m. and 4:20 a.m.. However, as Durno J. observed in R. v. Grant, observable indicia of impairment are not static. While it is impossible to speculate on what the booking video would have shown, even if the indicia of impairment observed by P.C. Whitaker and Mr. Rennie at the scene, moments after the motor vehicle collision, were not present in the booking video, it would not be inconsistent with a finding that Mr. Sousa's ability to drive was impaired by the consumption of alcohol when he was driving.
[55] P.C. Whitaker gave his evidence in a balanced way by acknowledging that, during the booking process, he did not believe Mr. Sousa was swaying, nor did he note any unsteadiness or difficulty standing up during the booking process. The booking video would likely have confirmed this.
[56] However, Mr. Rennie and P.C. Whitaker gave independent credible evidence of their observations of Mr. Sousa at the scene, at the time most proximate to the unexplained accident. Those observations, listed above, establish Mr. Sousa's guilt beyond a reasonable doubt.
CONCLUSION
[57] I find Mr. Sousa guilty of Operating a Motor Vehicle while his ability to do so was Impaired by Alcohol, contrary to section 253(1)(a) of the Criminal Code.
Released: November 16, 2018
Signed: Justice J.P.P. Fiorucci