Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 03 25 COURT FILE No.: Niagara Region 998 WR0439

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Kevin Lachnit

Before: Justice J. De Filippis

Heard on: March 15 & 18, 2022 Reasons for Sentence Judgment on: March 25, 2022

Counsel: Mr. T. Hill............................................................................................... counsel for the Crown Mr. M. Evans................................................................................... counsel for the accused

De Filippis, J.:

Endorsement

[1] The defendant was tried in answer to two charges; that he operated a conveyance while his ability to do so was impaired by alcohol and with a blood alcohol level that exceeded the legal limit (“over 80”). The defendant was arrested at the scene of a collision between a “dirt bike” (motorcycle) and a parked Jeep.

[2] The defendant was the driver of the dirt bike in question. His identity as such in not in issue at this trial. The Defence seeks to exclude the evidence with respect to the over 80 count because of Charter violations and argues the Crown has not proven the impaired charge beyond a reasonable doubt. In the end, Crown counsel restricted his submissions to the impaired charge.

[3] The events leading up to the arrest are not controversial. The afternoon of June 13, 2020 was a clear, dry day. Ms. Carol Cooke was in her home. She observed a young man in the area riding a dirt bike. He was with a group of males she had seen drinking from cans taken from a cooler at the back of a pickup truck. She assumed they were cans of beer. Later, she witnessed the collision. It is captured on video by a surveillance camera at the front of her home. At 5:27 pm, a dirt bike is seen entering the camera view from the left at high speed and, within seconds, colliding with the parked Jeep and ejecting the driver. As Ms. Cooke called 911, she saw two other young men pick up the dirt bike and carry it to a nearby garage. The witness agreed with the Defence suggestion that it looked like the driver of the dirt bike had tried to “hop the culvert” just before the collision.

[4] PC Williamson responded to the 911 call by Ms. Cooke. On arrival he saw the defendant being attended to by paramedics. He also observed the damage to the Jeep caused by the collision and a group of individuals in the area who were acting in an obnoxious manner. He assumed they had been drinking.

[5] The officer spoke to Adam Martin, one of the paramedics, and was told the defendant’s condition was serious. Adam Martin testified that he detected an odour of alcohol on the defendant’s breath and that he was confused and drowsy. PC Williamson spoke to the defendant and learned his name. The officer detected a “strong odour” of alcohol on his breath. He followed the ambulance as it transported the defendant to the hospital.

[6] PC Lester, a qualified intoxilyzer technician, arrived at the hospital at 6:31 pm, soon after PC Williamson did. The latter provided PC Lester with his grounds for concluding the defendant had operated the dirt bike while impaired. PC Lester said a blood demand was appropriate.

[7] PC Williamson went to the defendant’s bedside. He noted his head had been bandaged, that his pupils were dilated, and he had a “stunned” look on his face. The strong odour of alcohol remained in his breath. Based on these observations as well as the information received about the collision, the officer concluded his ability to operate the dirt bike was impaired by alcohol and arrested him accordingly. The time was 6:43 pm. The defendant was properly advised of his right to counsel and cautioned. The defendant replied that he wished to speak to a lawyer.

[8] PC Lester saw the defendant after he had been arrested. She testified he had blood on his face and arms, had a “long focused stare” and appeared confused. The officer did not detect an odour of alcohol on his breath. PC Lester was present when a nurse obtained the defendant’s consent to a blood sample and drew blood into two vials. The time was 6:49 pm.

[9] The defendant’s right to counsel was not facilitated by the police. He said he wanted to speak to a lawyer. Six minutes later, the blood demand was acted upon. The only reason given for the failure to comply with the right to counsel is that there was not a phone available in the defendant’s room. No attempt was made to assist the defendant in exercising his right to counsel and to provide access to a hospital or other phone. It is not suggested that this was not possible. It simply was not done.

[10] At the commencement of submissions, I suggested that the decision in R. v. Taylor, 2014 SCC 50 was dispositive of the Charter motion alleging a violation of the right to counsel. The Crown did not press this issue. There is no reason for me to dwell on the matter. It will suffice to point out that the facts of this case are quite like those in Taylor and the result must be the same; a finding that section 10(b) of the Charter was breached, and the evidence of the blood samples must be excluded pursuant to section 24(2).

[11] The Crown submits that the remaining evidence amounts to a strong circumstantial case of impairment. Counsel emphasizes the following:

• The defendant was with a group of men, going to a cooler in the back of a truck, taking cans, and drinking from them. It is said I should infer these are beer cans.
• The paramedic and the investigating police officer both detected an odour of an alcoholic in the defendant’s breath.
• The collision between the dirt bike and the parked Jeep is otherwise not explained.
• After the collision, while the defendant lay on the ground, two of the men picked up the dirt bike and put it in the garage. It is said I should infer they did so to hide it, thereby assisting the defendant.

[12] In applying the law to this evidence, the Crown states: “I have selected five smooth pebbles from the brook which are applicable to our case. Two of them together would be sufficient to slay the giant of reasonable doubt:

• R. v. Stellato, 1994 SCJ No. 51 stands for the proposition that impairment can be “to any degree”, even slight.
• R. v. McKenzie, 1955 A.J. No. 38 stands for the proposition that impairment can reasonably be drawn from the conduct that exhibits a marked departure from the norm.
• R. v. Bartello, 1997 O.J. No. 2226 stands for the proposition that alcohol must be a contributing factor to impairment (as opposed to other things).
• R. v. Elvikis, 1997 O.J. No. 234 stands for the proposition that circumstantial evidence can prove impairment.
• R. v. Bush, 2010 ONCA 554 stands for the proposition that, inter alia, evidence of abnormal driving and an odour of an alcoholic beverage from the accused are sufficient to ground the offence of impaired driving.

[13] Defence counsel submits that there is evidence of consumption of alcohol but not impairment. The former is insufficient to ground a conviction; R. v. Brinton, 2004 SCJ 18502. Counsel also argues that the accident is otherwise explained; Ms. Cooke testified that there is a change in terrain at the front of her home and that the front wheel of the dirt bike appeared to “bite” into the ground just before the collision. Defence counsel also asserts that a dirt bike is “an instrument of fun, not travel” and notes Ms. Cooke's evidence that it appeared the defendant was trying to hop the culvert. The existence of other reasonable explanations for the collision precludes a finding of guilt; R. v. Logan, 2006 ONCA 20536.

[14] While driving a dirt bike, the defendant collided with a parked Jeep. The dramatic event was captured on video. The defendant was ejected and suffered serious head injuries. This occurred on a clear dry day. The arresting officer detected a strong odour of alcohol in the defendant’s breath. The paramedic described it simply as an odour. Interestingly, the intoxilyzer technician did not detect the odour of alcohol. I find the defendant had consumed alcohol. That is what was in those cans. Was he impaired? Is that why he collided with the Jeep? Or did he do so because he was “having fun” and/or there was a change in terrain? On the admissible evidence, I cannot conclude beyond a reasonable doubt that the defendant operated a conveyance while his ability to do so was impaired by alcohol.

[15] The Defence arguments prevail. The giant lives. The charges are dismissed.

Released: March 25, 2022 Signed: Justice J. De Filippis