Court File and Parties

Ontario Court of Justice

Date: 2019-11-04

Court File No.: Brampton 19-6909

Between:

Her Majesty the Queen

— and —

Kyle Patrick Wadien

Before: Justice M.M. Rahman

Heard: June 3, 4, 5, 10 and July 18, 2019

Reasons for Judgment released on: November 4, 2019

Counsel:

• Ikdeep Singh, for the Crown
• Carolyn Slattery-Cojocaru, for Kyle Patrick Wadien

Reasons for Judgment

RAHMAN J.:

1. Overview

[1] In the early morning hours of July 22, 2018, Vickram Mohabir was driving his Toyota 4Runner eastbound on the Queen Elizabeth Way (QEW) in Mississauga. He and his four passengers were driving back home from an evening at Casino Niagara. Somewhere between Hurontario Street and Cawthra Road, Mr. Mohabir noticed a car's headlights in his rear-view mirror and then in his side mirror. The next thing he knew, the Chrysler Sebring driven by the accused, Kyle Wadien, collided with the back of his car. Mr. Wadien's car was travelling over 150 km/h when it struck the Toyota. The front left of Mr. Wadien's Chrysler hit the rear right part of Mr. Mohabir's Toyota. The collision sent the Toyota into the barrier on the north side of the highway. Mr. Wadien's car flipped and slid on its right side for a short period of time before coming to rest on its roof. The Toyota was badly damaged. Two of its occupants had to be extracted from the vehicle. All of its occupants suffered some degree of injury.

[2] Mr. Wadien faces 18 driving-related charges arising out of the collision. He is charged with five counts each of dangerous driving causing bodily harm, impaired driving causing bodily harm, and driving with excess blood alcohol (over 80) causing an accident resulting in bodily harm. He is also charged with one count each of dangerous, impaired, and over 80 simpliciter.

[3] There is no issue that Mr. Wadien was driving the Chrysler Sebring that collided with the Toyota. Beyond that, nearly every element of all the offences is in issue.

[4] I will begin by considering whether the Crown has proven each of the non-causation offences.

2. Dangerous Driving

2.1. Summary of the Evidence

[5] The evidence about Mr. Wadien's driving comes from two main sources. First, the video from the Ontario Ministry of Transportation (MTO) camera that was on the QEW east of Hurontario facing east. The second is the Collision Reconstruction Report prepared by Cst. David Neville of the Ontario Provincial Police (OPP). Cst. Neville was qualified as an expert in collision reconstruction and gave opinion evidence about the collision.

[6] The MTO video captured both the Toyota and the Chrysler driving by its position and away from it. The video actually shows the two cars collide, albeit in the distance and not close to the camera itself. Both cars are initially travelling in the middle of three lanes, referred to as lane 2. It is not entirely clear from the video in which lane the collision takes place, because of the distance of the event from the camera. The video captures the relative speed of the traffic on the highway, including the two cars involved in the collision. The video shows that Mr. Wadien's car was travelling considerably faster than the other traffic on the highway including the Toyota.

[7] The actual speed of Mr. Wadien's car in the moments leading up to the collision was discovered through an analysis of his car's air bag module. The analysis of the air bag module forms part of Cst. Neville's report. The air bag module recorded the speed of the car in the five seconds preceding the collision and deployment of the air bag. It showed that Mr. Wadien's car was moving at speeds of between 157 km/h and 159 km/h. The air bag module also recorded whether the brakes were used in the same five-second period. It revealed that Mr. Wadien did not use his brakes at any time in those five seconds.

2.2. Parties' Positions

[8] Crown counsel, Mr. Singh, argues that he has proven that Mr. Wadien's driving was dangerous because he was driving 59 km/h over the speed limit, on a wet road, after having had enough alcohol to be impaired and know he was impaired. He says that Mr. Wadien was also following the Toyota too closely for the speed he was travelling.

[9] The defence says that there is insufficient evidence to prove dangerous driving here. Mr. Wadien's counsel, Ms Slattery-Cojocaru, argues that the speed of her client's car, while over the speed limit, was not so high as to constitute dangerous driving. She says that there was relatively little traffic at that time of the morning, and other cars, including the Toyota, were driving above the speed limit. Ms Slattery-Cojocaru also says that her client displayed signs of proper driving because he used his turn signal well in advance of making an anticipated lane change.

2.3. Analysis

[10] The Supreme Court of Canada recently clarified the actus reus and mens rea for dangerous driving.

[11] The actus reus focuses on the manner of driving. The Crown must prove that the accused was driving in a manner that, viewed objectively, was dangerous to the public. This assessment of dangerousness is made having regard to all the circumstances including the weather, road conditions, and the amount of traffic on the road. Speed alone may be sufficient, depending on the circumstances, to constitute dangerous driving. The consequence of the accused's driving has no bearing on the question of whether the driving was dangerous.

[12] The mens rea for this offence requires the Crown to prove that the accused's driving was a marked departure from the standard of care that a reasonable person would observe in the circumstances. The mens rea component involves a modified objective test. The subjective mens rea of intentionally creating a danger for others will always meet the modified objective mens rea for this crime.

[13] Although this is a close case, I am not satisfied that the manner of Mr. Wadien's driving meets the standard required to prove the actus reus of dangerous driving.

[14] There is no question that Mr. Wadien's speed was well over the limit. His speed was fast enough to make him guilty of stunt driving under the Highway Traffic Act. It was not a safe speed for the wet road conditions. Driving at that speed was definitely imprudent. His driving would likely also constitute careless driving under that HTA. But I cannot say that the manner of his driving reached the level of dangerousness to be criminal.

[15] The only real part of Mr. Wadien's driving that could be considered dangerous was his speed. Though that speed was excessive, given the minimal amount of traffic on the road, I cannot say that his speed was so excessive as to constitute dangerous driving. Cst. Neville himself testified that people typically drive between 15 km/h and 25 km/h over the speed limit, especially on an empty highway. The Toyota itself was estimated to have been driving at 125 km/h to 127 km/h.

[16] Further, I cannot say that the wet road conditions themselves were sufficient to make his speed dangerous. The Crown did not lead any evidence about how wet the road was at the time of the collision. The MTO video makes it clear the road was wet, but it is unclear whether it was still raining and how much water was on the road. Cst. Neville's testing of the road surface took place over two hours after the collision had happened. By the time he tested the frictional value of the road surface, it was raining quite hard. I have no evidence that it was raining that hard when the collision happened. On the contrary, the MTO video does not appear to show that it was raining very much. Also, Vickram Mohabir testified that there were only "spots of rain" or "spots of drizzle." Mr. Mohabir did agree that the roads were wet and slippery, but there is no way to know if they were as slippery as they were when Cst. Neville did his measurements.

[17] I also cannot accept the Crown's submission that Mr. Wadien was following too closely. That submission conflates the collision itself with the analysis of the manner of Mr. Wadien's driving. Mr. Wadien was not tailgating the Toyota. He was driving in the same lane as the Toyota and was only "following" it too closely in the moments up to the collision. A rear end collision, by definition, results from the rear vehicle following the lead vehicle too closely at some point close to the collision. Therefore, I cannot say that Mr. Wadien was following too closely at a high speed in a manner that constitutes dangerous driving. I will have more to say about the manner of Mr. Wadien's driving, and what I find caused the collision, below.

[18] Finally, the fact that Mr. Wadien had consumed alcohol does not assist the Crown in proving that the manner of Mr. Wadien's driving was dangerous. The Crown may rely on a driver having drunk too much alcohol to prove the mens rea component of dangerous driving, but it cannot rely on alcohol consumption to prove the actus reus. Even alcohol consumption that falls short of causing impairment may be relevant to the mens rea component of dangerous driving. As the Court of Appeal noted in R. v. McLellan:

[23] The fact that a person voluntarily consumes some alcohol, albeit short of the point of impairment, is a factor – and only that – that can be considered in determining whether the necessary mens rea has been made out. It is an indication of a mindset, in my view, of a willingness to assume a degree of risk – a risk that the amount they have consumed will not rise to level where it impairs their ability to operate a motor vehicle. The offences of impaired driving and dangerous driving are directed at different risks.

[25] When dealing with a dangerous driving charge, it is not inappropriate in considering whether a driver's conduct is a marked departure from that of a reasonable driver in similar circumstances, to consider whether or not that person has consumed alcohol and if so to what degree before operating the motor vehicle – as I have said it goes to mindset and a willingness to assume risk.

[19] In this case, I cannot find beyond a reasonable doubt, that the manner of Mr. Wadien's driving was objectively dangerous.

3. Over 80

3.1. Summary of the Evidence

[20] Mr. Wadien was taken to the hospital after the collision. It was at the hospital that Cst. Buinickis, the qualified technician, administered the Intoxilyzer tests. Cst. Buinickis took two samples of Mr. Wadien's breath at 7:29 am and 7:54 am. Those tests resulted in readings of 105 and 97 mg of alcohol in 100 ml of blood. The Crown led evidence from a forensic toxicologist, Rachelle Wallage, to establish Mr. Wadien's BAC at the time of the collision. Ms Wallage projected Mr. Wadien's BAC to have been between 100 and 155 mg of alcohol in 100 ml of blood.

[21] Ms Slattery-Cojocaru takes aim at two aspects of the over 80 charge. First, she says that the Crown cannot rely on the Intoxilyzer results as being accurate because it has not established the preconditions in s. 320.31(1) of the Criminal Code, which trigger the presumption of accuracy. Second, she says that, even if the results of the tests are accurate, there is evidence to support bolus drinking. That evidence undermines a key assumption in Ms Wallage's BAC projection and affects her conclusion about Mr. Wadien's BAC at the time of driving.

3.2. The Presumption of Accuracy

[22] Ms Slattery-Cojocaru argues that this court cannot rely on the Intoxilyzer results because the Crown has not established the pre-conditions for the presumption of accuracy in s. 320.31(1) of the Criminal Code. Specifically, she argues that the test record cards refers only to an "air blank," but that s. 320.31(1)(a) refers to a "system blank." She also says that, because the Crown did not prove the concentration of the alcohol standard solution through a certificate, there is no evidence that the calibration check was within the allowable margin of 10 percent. The latter submission is based on this court's decision in R. v. Flores-Vigil. In that decision, Parry J. held that the concentration of the alcohol standard solution must be proven through a certificate of analyst, and that viva voce evidence from the qualified technician about the solution's contents was not sufficient.

[23] The defence's argument that this court cannot rely on the Intoxilyzer results must fail for the following reasons.

[24] First, the presumption of accuracy is not a precondition to the admissibility of the Intoxilyzer results. The qualified technician's certificate (which was admitted without objection) and his testimony provide evidence of Mr. Wadien's BAC at the time of the Intoxilyzer tests. The Crown does not have to trigger the presumption of accuracy to make those results admissible.

[25] Second, the presumption of accuracy is not necessary to allow a court to conclude that Intoxilyzer readings are accurate and reliable evidence of a driver's blood alcohol concentration. Subsection 320.12(c) recognizes and declares that "the analysis of a sample of a person's breath by means of an approved instrument produces reliable and accurate readings of blood alcohol concentration" (emphasis added). That alone is sufficient to allow (but not require) a trial court to rely on the Intoxilyzer readings and find that they are accurate and reliable. The presumption of accuracy is a case-specific evidentiary shortcut with a significant consequence. Once triggered, it provides "conclusive proof" of the driver's BAC at the time the samples are taken. The trial court must draw the conclusion that the driver's readings are accurate. The driver may rebut the presumption by relying on evidence that the analysis was performed improperly; however, subsection 320.31(3) restricts how the defence may show that the analysis was done improperly.

[26] Failure to trigger the presumption of accuracy does not imply that the results in a given case are inaccurate. Nor does it mean that a trial court cannot consider them accurate, even to the criminal standard of proof. Rather, failure to trigger the presumption simply means that the Crown cannot rely on the readings as conclusive proof, with all the implications that concept has. A trial court is still entitled to consider that the readings are accurate and rely on them. That is the conclusion that I reach here. I find that, even if the Crown failed to engage the presumption, the readings in this case are accurate and reliable because the approved instrument is accurate and reliable and there is no evidence casting doubt on those results.

[27] In any event, I find that the Crown has proven the presumption of accuracy's preconditions beyond a reasonable doubt. First, I cannot accept that the use of the term "air blank" rather than "system blank" on the test record card is of any moment. Trial judges do not check their common sense at the courtroom door. That the term "air blank" is the same as "system blank" is not a matter of judicial notice, as the defence has framed it. The Criminal Code's requirement that a "system blank" be performed is satisfied by showing that an "air blank" was performed. It is obvious that they are the same thing. To find otherwise would be to abandon common sense, and believe that an approved instrument would be performing some other type of blank test not recognized or mentioned in the Criminal Code. I also note that the French version of s. 320.31(a) simply refers to a "blank test" ("un test à blanc") without the use of either the word "air" or "system" preceding it.

[28] Also, I cannot accept the defence argument that the Crown must prove the concentration of the alcohol standard solution using a certificate. The weight of the authority on this issue has disapproved of the reasoning in Flores-Vigil. Rather, the weight of the authority in this court has held that viva voce evidence is admissible to prove the concentration of the solution. I accept and adopt the reasoning in those cases. In this case, Cst. Buinickis testified in cross-examination that the bottle of standard solution he used said "100" on it. Cst. Buinickis said that this meant that it would produce a reading of 100 mg of alcohol at 34 degrees Celsius. In my view, that testimony is sufficient to establish the concentration of the alcohol standard solution. The calibration check in this case was within the allowable limit set out in s. 320.31(1)(c). The Crown has established that pre-condition as well.

[29] Finally, stepping back from the intricacies of the Criminal Code's statutory presumption, I note that this is a case where the court had testimony from two experts in the operation of the approved instrument. Normally, the testimony of one expert witness, the qualified technician, would be enough to satisfy a court that the test was done properly and that the results are accurate. The statutory presumptions are normally considered shortcuts the Crown may rely on where no expert testifies. In this case, the Crown had a second expert. The Crown's toxicologist, Ms Wallage, was qualified as an expert in the operation of the Intoxilyzer. She was extensively cross-examined on the operation of that instrument in this case, including whether it being unplugged briefly affected the results. Ms Wallage was satisfied with the way the test was performed. This is not a case where the Crown needed to rely on statutory shortcuts in order to prove that the Intoxilyzer results are reliable. Its two expert witnesses did that.

[30] In short, putting aside the Criminal Code provisions (which were all met), the expert evidence on the operation of the Intoxilyzer in this case proves, beyond any doubt, that the results of Mr. Wadien's tests were accurate and reliable. There is simply no other conclusion available on the evidence.

3.3. The Bolus Drinking Argument

3.3.1. Summary of the Evidence

[31] Ms Wallage's expert opinion about Mr. Wadien's BAC at the time of the collision is based on four assumptions. One of those assumptions is that Mr. Wadien did not engage in bolus drinking – that he did not consume a large amount of alcohol shortly before driving. Ms Wallage explained that, for the purpose of her opinion, a large amount of alcohol would be equal to one standard drink within approximately 15 minutes of driving.

[32] Ms Wallage also explained that for bolus drinking to apply, and put Mr. Wadien's BAC at 80 mg at the time of driving, he would have had to consume two to three and three-quarters standard drinks within 15 minutes of driving.

[33] Ms Wallage also testified about how much Mr. Wadien would have to drink in order to produce the breath test results that he did. Ms Wallage said that the breath test result of 105 mg converts to 5 standard drinks and the result of 97 converts to four and a half standard drinks.

[34] In his audio-recorded statement to Cst. Schiavo, Mr. Wadien said that he had started drinking around midnight at his mother's house with his sister. He told the officer he had "two big glasses of wine." Early in the interview, when the officer asked Mr. Wadien what time he and his sister had finished drinking, he said he did not know. Later, when asked what time he finished drinking, he said between 2:30 am and 3:00 am. Mr. Wadien also estimated that the accident had taken place between 2:30 am and 3:00 am. When Cst. Schiavo asked, "So you – from 12:00 to 2:30-3:00 you're drinking and then you just get in the car?" Mr. Wadien answered "Yeah. Pretty much."

[35] Although there is no evidence precisely where Mr. Wadien's mother's home was, Mr. Wadien did say that it was "near Clarkson Road and Southdown" and in the "Clarkson, Lorne Park area." He also said in his statement that he likely entered the QEW from Mississauga Road, although he was not completely sure. Based on this evidence, it is probable that he would have started driving within 15 minutes of the collision, if he did not make any stops along the way.

3.3.2. Parties' Positions

[36] Ms Slattery-Cojocaru argues that Mr. Wadien's statement to Cst. Schiavo – that he had two big glasses of wine -- puts the possibility of bolus drinking into play. Mr. Wadien's belief that the accident happened between 2:30 am and 3:00 am, and that he finished drinking within that same window overcomes the "practical evidentiary burden" that people generally do not drink large amounts of alcohol in a short period of time. Further, she also relies on the answer her client gave Cst. Schiavo about just getting in the car after drinking between midnight and 2:30 am to 3:00 am. Ms Slattery-Cojocaru also relies on the short distance between the general area where Mr. Wadien said he was drinking and where he entered the QEW. That area is less than 15 minutes' driving distance.

[37] Mr. Singh urges the court not to find any evidence of bolus drinking. He says that Mr. Wadien's estimation of time is unreliable, since he was completely wrong about the time of the collision. He also says that, even accepting Mr. Wadien's estimate that he finished drinking just before driving, it does not follow that Mr. Wadien drank a full standard drink or two just before driving. Mr. Wadien did not ever explicitly say that he had a full drink right before driving. Mr. Singh notes that Mr. Wadien himself said he had been drinking from midnight onwards, and that it makes no sense that he would suddenly have a full drink just before driving. It is more logical that Mr. Wadien would have been drinking the alcohol over that longer period of time. Mr. Singh also points to the fact that Mr. Wadien said he was drunk before he started driving. He says that this shows the alcohol was clearly affecting Mr. Wadien before he drove.

3.4. Analysis

[38] As with any expert evidence, the party relying on the expert must establish the facts underlying the expert's opinion. The bolus drinking defence, as it is known, simply refers to the Crown's obligation to establish one of the four assumptions underlying the expert's opinion.

[39] I cannot agree with Ms Slattery-Cojocaru that her client's statement puts bolus drinking into play such that I cannot rely on Ms Wallage's opinion. Mr. Wadien's evidence of the amount he drank and the timing of his drinking was not reliable. It leaves me with no doubt about the validity of Ms Wallage's opinion.

[40] Mr. Wadien told Cst. Dietrich at the scene that he had had one beer earlier in the evening. He then told Cst. Schiavo that he had "two big glasses of wine."

[41] Mr. Wadien was equally inconsistent about when he stopped drinking. During his statement to Cst. Schiavo, he initially could not recall when he stopped drinking. He later said he stopped drinking within the same 30-minute window that he believed the collision to have happened. That identical window also shows that Mr. Wadien's estimation of time is not accurate. He estimated the time of the accident as being one and a half or two hours earlier than it actually was.

[42] Simply because Mr. Wadien said that he got in the car after he finished drinking, does not mean that his evidence puts into play the possibility of bolus drinking. I agree with Mr. Singh that nothing in Mr. Wadien's statement suggests that he drank a standard drink within approximately 15 minutes of the collision.

[43] Even if Mr. Wadien did stop drinking just before he got into his car, there is nothing to suggest that he drank a glass of wine immediately before doing so. Again, Mr. Wadien's statement does nothing more than suggest he was drinking alcohol between midnight and the time he got into his car. A fair reading of his statement suggests that he had been drinking over a period of hours. There is no suggestion that he sped up his drinking before driving, let alone a suggestion that he drank within 15 minutes of driving. I also note that Mr. Wadien could not initially recall when he finished drinking. This inconsistency about when he actually finished drinking is yet another reason his recollection is unreliable.

[44] Mr. Wadien's comments about how much he drank, and the timing of his drinking, is simply too unreliable to put the possibility of bolus drinking into play. Rather I accept Ms Wallage's opinion that Mr. Wadien's BAC was at least 100 at the time of the collision.

[45] I am satisfied beyond a reasonable doubt that Mr. Wadien's BAC was over 80 at the time he was driving.

4. Impaired Operation

4.1. Summary of the Evidence

[46] Cst. Dietrich was the first officer to speak to Mr. Wadien after the collision. She testified that Mr. Wadien had a strong odour of alcohol on his breath and bloodshot eyes. Cst. Nasr noticed that Mr. Wadien was walking slowly after the collision. Cst. Buinickis also noted an odour of alcohol, flushed face and slow movements. Mr. Wadien's speech during his audio-recorded statement at the hospital was slow. He also took a lot of time to respond to Cst. Schiavo's questions.

[47] In his statement to Cst. Schiavo, Mr. Wadien said that he was drunk when he got into his car and that his sister tried to stop him from driving. When Cst. Schiavo asked why he did not listen to her, he said "because I'm an idiot." Mr. Wadien also said that he felt drunk while he was driving.

4.2. Parties' Positions

[48] Ms Slattery-Cojocaru said that it would not be safe to rely on the physical signs of impairment noticed by the police witnesses. She says that Mr. Wadien had just been in a serious accident. His head was bleeding at the scene. As for his demeanour at the hospital, Ms Slattery-Cojocaru says that his slow speech and movements could as easily be attributed to fatigue, especially given how long her client had been awake into the morning after the collision. Ms Slattery-Cojocaru also urged me not to rely on her client's statement that he was drunk. She said that Mr. Wadien may have simply been expressing regret after having had some alcohol and being in an accident.

[49] Mr. Singh argues that Mr. Wadien was clearly impaired by alcohol to some degree. He said that Mr. Wadien's physical symptoms such as the odour of alcohol, flushed face, bloodshot eyes and confused speech combined with his driving behaviour (excess speed, failure to leave space or brake) all suggest he was impaired. Further, Mr. Singh points to Ms Wallage's evidence that Mr. Wadien would be impaired at any BAC over 50 mg of alcohol in 100 ml of blood and that he would be above this amount even if bolus drinking had been a factor. Finally, Mr. Singh relies on Mr. Wadien's own self-assessment of being drunk before he got into his car and while he was driving.

4.3. Analysis

[50] I would not rely on the police witnesses' observations of Mr. Wadien's physical state as evidence of impairment. The odour of alcohol, bloodshot eyes, and flushed face, on their own, suggest nothing more than the fact that Mr. Wadien had been drinking. Those signs do not speak to his level of impairment. Similarly, his slow movements at the scene can easily be attributed to the shock of having been in a serious collision. Nor do I rely on his slow speech and answers to questions during his audio-recorded interview as evidence of impairment. Mr. Wadien had just been in a serious collision. It was late at night. He would have been shaken after the collision. He would have been tired at the time of the interview. It would not be surprising for a non-impaired person in those circumstances to display some of the outward signs of impairment that Mr. Wadien did.

[51] However, there is sufficient evidence, apart from those physical observations that leads me to conclude that Mr. Wadien was in fact impaired at the time of the collision. There are three areas of evidence that support the conclusion that Mr. Wadien was impaired.

[52] First, is Mr. Wadien's own statement that he felt drunk both before and while he drove. He said that, before he got into his car, he knew he was drunk and that his sister tried to stop him from driving. When asked why he did not listen to her said "because I'm an idiot." For that reason, I am not concerned that his opinion about his impairment might have been coloured by the fact that he was in an accident and reasoned, after the fact, that it might have been caused by him being impaired. Moreover, unlike his evidence about how much he drank and the timing of his drinking, Mr. Wadien was not relating something that he would have to keep track of. He was relating how he felt before he got into his car and while he was driving.

[53] The second area of evidence showing impairment is Mr. Wadien's BAC at the time of the collision. Ms Wallage testified that a person's ability to drive is significantly impaired at a BAC of 50 mg of alcohol in 100 ml of blood. She explained that alcohol tolerance does not mitigate the drug's impairing effects on a driver. People with a high alcohol tolerance may not have difficulty doing practised tasks such as walking or talking. Because driving involves the ability to react to unexpected, sudden events, even a tolerant person may be impaired at 50 mg. Driving requires divided attention, choice reaction time, and judgment of speed and distance. All of these faculties are affected by alcohol. Mr. Wadien's BAC was well over the 50 mg threshold. Again, this evidence helps lend credibility to Mr. Wadien's self-assessment that he was "drunk."

[54] Finally, there is the manner of Mr. Wadien's driving. Although I have found that Mr. Wadien's driving was not objectively dangerous, the manner of his driving, and the resulting collision, does support the conclusion that his ability to drive was impaired. While dangerous driving is concerned with the way an accused drove his or her car, impaired driving is concerned with the driver's ability to drive the car. Mr. Wadien's driving demonstrated impaired judgment. He was driving at an excessive speed and drove very closely to the Toyota just before the collision. As I will explain in more detail below when I consider the issue of causation, he failed to leave an appropriate buffer between his car and the Toyota and misjudged the distance when trying to pass. As a result, he caused the collision. A collision is not sufficient on its own to show that a driver's ability was impaired. However, in this case, combined with Mr. Wadien's own self-assessment, and his BAC, that driving evidence helps establish that his ability to drive was impaired.

[55] I am therefore satisfied beyond a reasonable doubt that Mr. Wadien's ability to drive was impaired by alcohol.

5. Causation

[56] Having found that Mr. Wadien was driving while impaired and over 80, the next question that arises is whether his impairment was a significant contributing cause of the complainants' bodily harm and whether Mr. Wadien's driving caused the accident.

[57] There is no issue that the collision caused the complainants' injuries. Therefore, the real issue is whether Mr. Wadien's impairment caused the collision to happen.

5.1. Impaired Driving Causing Bodily Harm

5.1.1. Summary of the Evidence

[58] Because Mr. Wadien rear-ended the Toyota, there was a significant focus at trial on whether Mr. Wadien hit the Toyota in the middle lane or whether the Toyota moved into his path as he was moving into the right lane (lane 3) to pass it.

[59] As mentioned above, the MTO video shows the collision. However, as Cst. Neville testified, the video does not clearly show which lane the two cars were in when they collided. Cst. Neville explained that the camera's lens may distort the image and perspective such that it is difficult to pinpoint exactly where the cars are as they collide in the distance. Mr. Mohabir testified that he did not change lanes nor did his car veer to the right of his own lane (lane 2). He also testified in cross-examination that he observed the car in his rear view mirror start moving to the right.

[60] When asked in cross-examination whether he could tell in which lane the collision occurred, Cst. Neville testified that the road markings led him to conclude that the Toyota was not in lane 3 at the point of impact. He based his opinion on the markings that the Toyota's right rear tire rim left on the pavement. He said that he could not say "unequivocally" where the Toyota was based on the lane marking, but that he would have expected the markings to be further south had the Toyota been in lane 3.

A….there was no way to actually establish completely the area of the impact and the position of the lane. What I can look at is the, the evidence deposited by the Toyota post-impact and see the fact that as the Toyota landed it then started to leave a groove in the road surface. That's caused by the rear right exposed rim of the tire. That is in lane two…It just offset causing the rotation that would've pushed that Toyota forward and started its, its then rotation. As it comes down it would've landed. It's not up in the air for any extended time period but that makes me look at that to analyze that evidence means it's not – the Toyota was not over into lane three. It's in lane two. Can I say for sure how long it was in the air? No. Does it look to have been moved over or into lane three? Absolutely not. That evidence would be the touchdown and then the, the continuance of that post-impact rotation of that Toyota. But that for sure is in lane two.

Q. So, if the Toyota had moved it would've not - would not have moved into lane three?

A. No, it wouldn't have for sure. Even if it's slightly moving I would've expected if it's over towards – veer towards the right side of lane two into lane three. You'd start expecting the actual touchdown point to be a little bit more to what would be the south in this case. But that's just – from looking at the damage and looking at the type of hit, can you say that unequivocally? No, you can't but I would expect it to be slightly further to the south if the position of that Toyota had changed drastically.

[61] When asked in cross-examination about a comment in his Collision Reconstruction Report that the damage to both cars was consistent with one or both of the cars moving to avoid the collision, Cst. Neville said that it was Mr. Wadien's misjudging of the distance, and a last second lane movement, that caused the collision. The full question and answer is set out below:

Q. And I'll take you back briefly to – when you've stated before that based on the damage, that it's consistent with one of the cars moving at the last minute, are you able to say whether or not if it were – if it were not for that last-minute movement whether or not the collision would have occurred? Is it possible to state one way or the other?

A. It's not – the problem is it was a misjudgment on the vehicle advancing on the vehicle in front. That's – it's that you're closing the distance, the misjudging is what's caused the collision. Generally, a prudent aware driver is going to make sure that they have a significant buffer to make any movement, especially in an empty highway, a virtually empty highway, they're going to make sure they have that buffer just in case there's an unexpected movement of the other vehicle. That – basically it was a lane movement that was left to the very last second. That wasn't timed correctly.

[62] Cst. Neville's Collision Report similarly stated that Mr. Wadien's car "rear ended the slower moving Toyota because the driver of the Chrysler failed to react to the closing distance of the Toyota for unknown reasons."

5.1.2. Parties' Positions

[63] Mr. Singh argues that he has proven that Mr. Wadien's impairment was a significant contributing cause of the collision. He cites Cst. Neville's opinion that there were many things that Mr. Wadien could have done to avoid the collision and that he simply did not leave enough room between himself and the Toyota given his speed. He observes that there was nothing that Mr. Mohabir could have done to avoid Mr. Wadien hitting him from behind. Mr. Singh also reminds the court that Mr. Wadien's driving does not need to be the sole or substantial cause of the collision and that it is enough that it contributed in some way to the consequence.

[64] Ms Slattery-Cojocaru argues that the Crown has not proven causation because it has not shown that the collision was unavoidable and that Mr. Wadien could have taken evasive action. She says that Officer Neville's testimony and report suggest that it is likely the Toyota moved into the path of Mr. Wadien's Chrysler, causing an unavoidable collision. She relies heavily on two sentences in the Collision Reconstruction Report. The first says, "People in Toyota saw Chrysler coming quickly, attempted to move out of the way and were hit from behind." The second sentence says that the damage to the vehicles was consistent with "One or both of the vehicles [trying] to avoid the collision at the last moment." Ms Slattery-Cojocaru argues that the fact that Mr. Wadien did not use his brakes is consistent with the Toyota moving into his path and not having any time to brake.

5.1.3. Analysis

[65] I am satisfied beyond a reasonable doubt that Mr. Wadien's impairment caused the accident which caused the complainants' injuries.

[66] At the outset I note that, though the defence's submissions are based on a theory of what likely happened, the burden remains on the Crown to prove causation. Any of my comments about the lack of evidence or implausibility of the defence theory should be read as a response to the arguments raised, and not as placing any onus on the defence to prove an intervening event or any aspect of the defence theory.

[67] I am satisfied that Mr. Wadien's misjudgment of the distance between his car and the Toyota as he pulled out to pass it caused the collision here. I come to that conclusion principally based on Cst. Neville's report and testimony, which I have excerpted above. Mr. Wadien essentially drove into the back of the Toyota launching it into the guardrail on the north side of the highway. Mr. Mohabir had no chance to move the Toyota to avoid the collision.

[68] I also note that Mr. Wadien's turn signal was on as he approached the Toyota at high speed. This also supports the inference that it was his car, and not the Toyota, that moved to the right. Mr. Wadien's use of the turn signal, and his high speed approaching the Toyota, demonstrates that he was planning on passing the Toyota on the right. As Cst. Neville said in his testimony, when Mr. Wadien tried to pass he misjudged the distance when he tried to complete the passing manoeuvre. Because Mr. Wadien was impaired by alcohol, I am satisfied that this impairment caused him to misjudge the distance. As Ms Wallage explained, alcohol impairs a driver's ability to judge speed and distance (or depth perception), which often affects risk assessment. That impairment may cause a driver to overestimate, or underestimate, a risk associated with their actions.

[69] Contrary to Ms Slattery-Cojocaru's statement, there is no evidence to suggest that the Toyota moved into the path of Mr. Wadien's car to avoid a collision. The sentence from the Collision Reconstruction Report that says the Toyota moved to avoid the Chrysler is an unattributed hearsay statement. It is unclear which of the "people in the Toyota" made that statement. The only person in the Toyota who discussed whether the car moved was Vickram Mohabir. He said it did not. It is equally unclear which direction the Toyota would have moved to avoid the collision.

[70] As for the comment in the report about one or both vehicles moving out of the way, that statement addressed how the location of the damage to the cars was caused. It merely explains that the damage was consistent with a slightly offset collision. That statement did not purport to explain how the collision took place. It was part of a narrative under the heading "collision analysis." As Cst. Neville explained, it was one part of his analysis. That one sentence does nothing to undermine Cst. Neville's ultimate conclusion.

[71] As explained above, the possibility that the Toyota moved into Mr. Wadien's path into lane 3 was put to Cst. Neville in cross-examination. As mentioned above, he said that had the collision occurred in lane 3, he would have expected to see the marks left by the right rim further south on the highway, rather than in lane 2 where he had found them. Even though Cst. Neville said that he could not conclude "unequivocally" where exactly the collision took place, he expressed confidence, that the collision occurred in lane 2. His answers in cross-examination demonstrate his confidence based on the location of the markings on the road.

[72] I am therefore satisfied beyond a reasonable doubt that Mr. Wadien's impairment caused the collision which resulted in the complainants' injuries.

5.2. Causing an Accident Resulting in Bodily Harm While Over 80

[73] The offence of causing an accident resulting in bodily harm while having excess blood alcohol does not have the same causation requirement as impaired operation causing bodily harm. The former does not require any causal link between the driver's excess BAC and the resulting bodily harm. Rather, it requires proving that the driver was over 80 and that his or her driving caused an accident which resulted in bodily harm.

[74] The parties did not specifically address this offence's causation requirement in their submissions. The parties only made submissions on whether impairment was a significant contributing cause of bodily harm. The impaired driving causation requirement, though different, seems to require the Crown to go a step further than causing an accident while over 80, because it requires the Crown to show that it was the impairment, not just the driving, that cause the complainant's bodily harm. In this case, I do not think there is a meaningful distinction. My finding that Mr. Wadien's impairment caused the complainants' bodily harm necessarily means that I have found that he caused the accident. That Mr. Wadien's driving caused the collision is a necessary part of my finding that he caused the complainants' injuries.

[75] Consequently, I am satisfied beyond a reasonable doubt that Mr. Wadien was driving over 80 and caused an accident.

6. Bodily Harm

[76] The five occupants all suffered injuries of varying degrees as a result of the collision. I will review the details of those injuries in more detail in my analysis.

6.1. Parties' Positions

[77] Ms Slattery-Cojocaru says that the Crown has not proven that all of the occupants of the Toyota suffered bodily harm. While she concedes there is sufficient evidence to prove that Bibi and Hemrat Mohabir suffered bodily harm, she says the evidence falls short for Vickram Mohabir, Abdool Razack, and Rohit Toolaram. She says that the "quality of the evidence" regarding these three complainants is insufficient to support the conclusion that they suffered bodily harm. Specifically, she says that Vickram Mohabir's injuries were transient and trifling because the wound on his leg was small and he suffered only superficial abrasions and bruises to his arm and leg. She says that Mr. Razack only suffered scratches and bruises and that he had only minor injuries to his knuckle and some discoloration on his left leg and arm. She also notes that both Mr. Mohabir and Mr. Razack were fully mobile after the collision. As for Mr. Toolaram, she said that his injuries were obscured by bandages which did not disclose how serious they were. She also noted that the EMS staff at the scene was only able to say that Mr. Toolaram had a laceration but could not testify how serious that injury was.

[78] Mr. Singh maintains that all three occupants for whom bodily harm is in issue have clearly suffered bodily harm. He observes that the low threshold for bodily harm here was met by the three men's injuries.

6.2. Analysis

[79] I cannot accept the defence submission that the quality of the evidence does not permit a finding of bodily harm for the three occupants. Nor can I accept that the extent of their injuries does not constitute bodily harm. Indeed, the evidence of bodily harm here is both clear and overwhelming for all the occupants.

[80] Vickram Mohabir's injury was clearly bodily harm. He had a hole in his knee. He required three stitches to close the wound. He described it as being an inch deep because the medical professional who cleaned it "had her finger inside" trying to remove debris from it. Mr. Mohabir said the pain from that injury was a ten and it was not fully healed three weeks later when he had the stitches removed. Mr. Mohabir also injured his left hand. That injury affected the strength in his hand and amount of force he could squeeze his hand closed with. He required therapy for both his hand and knee injuries. Finally, Mr. Mohabir also suffered enough of a head injury that he has noticed problems with his short term memory and concentration. By any stretch of the definition he suffered bodily harm.

[81] Rohit Toolaram, who does not live in Canada, did not testify at trial. However, the court heard ample evidence of his injuries to establish that he was the most seriously injured person in the Toyota. At the scene, both Vickram Mohabir and Hemrat Mohabir said that Mr. Toolaram was bleeding a lot from a wound on his arm. Indeed, Mr. Mohabir said that he was concerned that Mr. Toolaram would die because of how much blood there was. There was evidence from a paramedic on scene who also said that Mr. Toolaram had a wound on his arm. Finally, I saw photos of Mr. Toolaram that underscore the severity of his injuries. Mr. Toolaram had a wound on his head that had to be closed with several staples. On any view of this evidence, it is clear that Mr. Toolaram suffered bodily harm.

[82] Mr. Razack was the least injured of the five people in the Toyota. He had an injury on his left hand that bled a lot. It required stitches. He also suffers from back pain. He underwent physiotherapy because of that pain. The fact that Mr. Razack required stitches to his finger and some physiotherapy because of his back pain, his injuries also constitute bodily harm.

[83] I reject the defence submission that the Crown must adduce some medical or scientific evidence to demonstrate bodily harm. That is not the law. Each of the three occupants suffered broken skin. They required stitches. They all had pain for some time afterwards. There are vivid photos of the injuries. They testified about their injuries and the after effects of those injuries. All required some amount of therapy because of those injuries. I fail to see how the quality of the evidence here falls short of proving bodily harm. That they suffered bodily harm is the only conclusion I can draw from the evidence.

[84] Therefore, I find that all five occupants of the Toyota suffered bodily harm.

7. Conclusion

[85] I find Mr. Wadien not guilty of all counts relating to dangerous driving, specifically counts 1, 2, 7, 10, 11, and 12.

[86] I find Mr. Wadien guilty of all counts relating to impaired operation, specifically, counts 3, 4, 8, 13, 14, and 15.

[87] I find Mr. Wadien guilty of all counts relating to driving with excess blood alcohol content, specifically counts 5, 6, 9, 16, 17, and 18.

Released: November 4, 2019

Justice M.M. Rahman