ONTARIO COURT OF JUSTICE
DATE: 2023.12.13 COURT FILE No.: Toronto # 22-50005528
BETWEEN:
HIS MAJESTY THE KING
— AND —
CORREY DUNN
REASONS FOR JUDGMENT
Released on December 13, 2023
Counsel: Ms. S. Dosanjh and Mr. M. Morley........................................................ Counsel for the Crown Mr. E. Sinclair.......................................................................................... Counsel for Mr. Dunn
BAND J.:
I. Introduction, Issues and Positions of the Parties
[1] Shortly after 10:00 p.m. on December 14, 2022, two police officers – PCs Sian and Irwin – were called to investigate a relatively serious motor vehicle accident on Keele Street near Falstaff Avenue in Toronto. During the investigation, the officers came to suspect that Mr. Dunn had alcohol in his body and PC Sian made a demand that he provide a sample of his breath into an approved screening device (ASD). Answers he gave to PC Sian concerning his last drink caused PC Sian to wait approximately 15 minutes before administering the test. Mr. Dunn’s sample then yielded a “fail.” Mr. Dunn was placed under arrest for Over 80 and impaired driving, and a demand was made that he provide samples of his breath into an approved instrument. Then, PC Irwin took Mr. Dunn to the hospital for treatment of a deep cut to his wrist that required stitches. It was there that he provided samples of his breath indicating that his blood-alcohol content was over twice the legal limit. He was charged with Over 80 and impaired driving.
[2] There were three unusual features to this case. First, PC Sian did not make the ASD demand until approximately 9 minutes after forming the requisite suspicion. Second, as I will explain, Mr. Dunn was not detained during that period. Third, on two occasions during the early stages of the investigation, the officers placed their body-worn cameras (BWCs) on “mute” to have conversations with one another.
[3] Mr. Sinclair argued that Mr. Dunn was detained shortly after the police officers arrived on scene and that the ASD demand was not made forthwith, or immediately, upon the formation of reasonable suspicion, as required by the governing authorities: R. v. Woods, 2005 SCC 42, R. v. Quansah, 2012 ONCA 123, R. v. Kubacsek, 2021 ONSC 5081, R. v. Breault, 2023 SCC 9 and others. The unlawful demand then triggered a cascade of breaches of Mr. Dunn’s ss. 8, 9, 10(a) and (b) Charter rights.
[4] Mr. Sinclair also argued that the officers’ decision to mute some of their conversations was egregious conduct constituting abuse of process, thereby violating Mr. Dunn’s s. 7 Charter rights. For this argument, Mr. Sinclair relied heavily on the recent decision of my colleague Porter J. in R. v. Azfar, 2023 ONCJ 241.
[5] As a remedy, Mr. Sinclair sought the exclusion of the breath results, observations of Mr. Dunn and utterances he made while in police custody, pursuant to s. 24(2) of the Charter. If granted, such a remedy would lead to acquittals on both counts.
[6] On behalf of the Crown, Ms. Dosanjh argued that Mr. Dunn was not detained during the 9 minutes between when PC Sian had grounds to make the ASD demand and when he made it. Further, she argued that despite the delay, PC Sian’s demand was made forthwith, pursuant to R. v. MacMillan, 2013 ONCA 109. As a result, the delay occasioned no breaches of Mr. Dunn’s Charter rights.
[7] Regarding the muting issue, Mr. Morley argued on behalf of the Crown that the Azfar decision must be approached with caution because it does not specify which of the accused’s s. 7 rights had been breached. In his submission, the issue must be characterized as abuse of process, a violation of the accused’s right to make full answer and defence, or both. Mr. Morley also pointed to the decisions of other judges who did not reach the same conclusions as Justice Porter did: see R. v. Aim, 2023 ONSC 5305 and R. v. Mohamed, 2022 ONSC 4705. He argued that Mr. Sinclair failed to demonstrate that the evidence was relevant and material and, therefore, to establish that Mr. Dunn’s right to make full answer and defence has been actually prejudiced: see R. v. O’Connor, [1995] S.C.J. No. 98 at para. 74, and R. v. Bjelland, 2009 SCC 38 at paras. 20-27. He further argued that even if the officers’ decision to mute their BWCs was wrong, it was not the sort of conduct from which the court must dissociate itself, particularly in light of the seriousness of the charges: O’Connor, supra at para. 59, and R. v. Campbell, [1999] S.C.J. 16 at paras. 42-43.
[8] In his Notice of Application, Mr. Sinclair claimed abuse of process but did not seek a stay pursuant to s. 24(1). In his submissions, he did not identify any actual prejudice to Mr. Dunn’s ability to make full answer and defence (in fact, he conceded that the police had reasonable grounds to make the ASD demand, arguing forcefully that they did so very shortly after they arrived). For these reasons, I asked for his views on Mr. Morley’s proposed analytical framework. Mr. Sinclair replied that he did not disagree with it. When I asked him which of the concepts were in play, he replied “a bit of both.” The public would be outraged by the muting, which made it impossible to know exactly what was said and when which, in turn, affected Mr. Dunn’s right to make full answer and defence.
[9] With respect to the merits, Mr. Sinclair argued that the Crown had failed to prove beyond a reasonable doubt that Mr. Dunn had been behind the wheel of the Toyota at the time of the crash by not negativing the possibility that he had been a passenger (and had not been wearing a seatbelt). The Crown disagreed, based on the cumulative effect of the circumstantial evidence.
[10] The issues before me are:
A. Was Mr. Dunn detained shortly after the police officers arrived on scene? B. If so, were his s. 9, 10(a) and (b) Charter rights violated? C. Was the ASD demand made forthwith? D. If not, did this result in violations of Mr. Dunn’s ss. 8, 9, 10(a) and (b) Charter rights? E. Did the BWC muting violate Mr. Dunn’s s. 7 Charter rights? F. Should evidence be excluded owing to the violation of any of Mr. Dunn’s Charter rights? G. If not, has the Crown proved beyond a reasonable doubt that Mr. Dunn was the driver at the material time?
[11] Mr. Dunn did not testify with respect to the Charter or the merits.
II. Analysis
A. Was Mr. Dunn detained once the officers had reasonable suspicion?
[12] PC Irwin arrived on scene at 10:09 p.m. PC Sian arrived at 10:08 or 10:09 p.m. [1] On arrival, they spoke with Toronto Fire Service (TFS) personnel, who told them that Mr. Dunn had been the driver of the Toyota, and that he was acting “weird.” PC Irwin took that to mean that he had been drinking. They also told them that they had called off ambulance services as they had not seen any injuries. PC Sian then went to see Mr. Dunn and ask him for his driver’s license. In the process, he smelled an odour of alcohol coming from Mr. Dunn. He also saw that he was bleeding profusely from his hand. Mr. Dunn did not provide his driver’s license to PC Sian, who did not repeat the request that he identify himself until later, during the ASD process. PC Sian decided to call dispatch to have an ambulance attend. He then went on to do other things, including speaking with PC Irwin, to TFS personnel and to the driver and passenger of the Honda. During that period, no one was paying any particular mind to Mr. Dunn who, as PC Irwin put it, was “milling about.” After satisfying himself that Mr. Dunn had been the driver of the Toyota, PC Sian told him he was detained at 10:19 p.m. and then went on to make the ASD demand at 10:20 p.m.
[13] PC Irwin agreed that he had sufficient grounds to make an ASD by 10:12 p.m., after having spoken to TFS personnel. PC Sian agreed that he had grounds to suspect that Mr. Dunn had alcohol in his system at that time, but he “wasn’t sure” that he had been the driver because TFS personnel’s information was “second hand.” For that reason, he wanted to speak to TFS again, as well as to the occupants of the Honda. As I will discuss further below, the Crown conceded that the information that TFS personnel provided to PC Sian objectively amounted to sufficient grounds to make an ASD demand, and was content to proceed on the basis that the “forthwith window” opened at 10:12 p.m.
[14] Both officers agreed that if Mr. Dunn had attempted to leave, they would not have allowed him to as he was under criminal investigation. He was also required to remain at the scene of the accident, pursuant to the Highway Traffic Act (HTA).
[15] During the 9-minute period, Mr. Dunn was not physically detained. However, Mr. Sinclair submitted that he was “factually detained” because (a) he was required to remain pursuant to the HTA; (b) he was being investigated for Over 80; (c) PC Sian formed an investigative plan; and (d) both officers would have prevented him from leaving if he had tried to.
[16] The Crown argued that psychological detention was not made out on these facts.
[17] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada explained that
… the subjective intentions of the police are not determinative. … While the test is objective, the individual's particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police, and thus the reasonableness of any perception that he or she had no choice but to comply with the police directive. To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go. It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual's right to choose, and conduct that does not.
[18] In MacMillan, supra at para. 37, citing the Supreme Court of Canada in R. v. Clayton, 2007 SCC 32 at para. 48, Rosenberg J.A. wrote that “it is not until the officer's subjective intent is accompanied by actual conduct that the intent becomes relevant for constitutional purposes.” In that case, which bears some similarity to this one, the detention did not occur until the ASD demand was made.
[19] In this case, I know very little about Mr. Dunn’s circumstances or perceptions, other than what I can infer from the fact that he was left to mill about the scene and that he did not comply with PC Sian’s request for his driver’s license. Notably, Mr. Sinclair did not rely on that request in his argument. Perhaps because Mr. Dunn did not appear to feel compelled to comply. Also, not every interaction with a police officer, even for investigative purposes, creates a detention: R. v. Suberu, 2009 SCC 33 at para. 3; see also MacMillan, supra at para. 36.
[20] Based on the record before me, Mr. Sinclair has not demonstrated that a reasonable person in Mr. Dunn’s position would conclude that he had been deprived of the liberty of choice during the 9 minutes in question. In that period, he did not comply with the one request that was made of him as he milled about.
B. Were Mr. Dunn’s ss. 9, 10(a) and (b) Charter rights violated?
[21] It follows that his ss. 9, 10(a) and (b) rights were not yet engaged.
C. Was the ASD demand made forthwith?
[22] It is common ground that, absent unusual circumstances, a demand must be made immediately upon the formation of a reasonable suspicion. Mr. Sinclair argued that this case is akin to those where an officer does not have an ASD at the scene and it is unclear when one will be delivered. Since it was not clear from the outset when the demand would be made, and it was not in fact made for approximately 9 minutes, it was not made forthwith. As a result, a cascade of breaches of Mr. Dunn’s ss. 8, 9, 10(a) and (b) rights ensued.
[23] The Crown argued that the analogy is inapt because Mr. Dunn was not detained until the demand was made. In such a case, the forthwith requirement can be applied with greater flexibility. In MacMillan, supra at para. 35, Rosenberg J.A. explained why:
After all, the primary factor driving the need for immediate action is the avoidance of a lengthy detention while a detainee is deprived of the right to consult counsel.
[24] MacMillan involved a boating fatality. The officer found the suspect very upset. She fainted and remained unconscious for a time and required medical attention. Distraught friends and family attended the scene. The officer made the demand 29 minutes after forming his grounds. In the circumstances, Rosenberg J.A. found that the forthwith requirement was met even though other officers were present and could have assisted in the investigation.
[25] I agree that MacMillan is the guiding authority in this case. The question is whether PC Sian’s demand complied with a flexible forthwith requirement. The answer depends on the facts of the case.
[26] The dispatcher advised PCs Sian and Irwin that they were to attend the scene of a motor vehicle accident involving three people and in which air bags had been deployed. According to PC Sian, they were also told that it involved a personal injury. PC Sian was attached to Traffic Services and was experienced in investigating motor vehicles and drafting collision reports. The scene was outside of his designated area that night, but resources were slim. He knew that if the matter became a criminal investigation leading to an arrest and breath demand, he would need help as no other officer would be able to attend to the accident investigation. When he arrived at approximately 10:09 p.m., TFS told him that Mr. Dunn was the driver of the Toyota. The Toyota had significant damage to the driver’s side. The driver’s front and side (or “curtain”) airbags had deployed. The Honda’s two front airbags had also deployed. Mr. Dunn was milling about. The two women were sitting in the tow truck for warmth. TFS told PC Sian that no one was injured. At 10:13 p.m., he spoke again to TFS regarding the identity of the driver of the Toyota. This time, they told him that the driver of the Honda had pointed him out and that Mr. Dunn had told them he had been driving. He went to ask Mr. Dunn for his driver’s license and smelled an odour of alcohol. It was then that he saw that Mr. Dunn was bleeding profusely from his hand. He had to arrange for an ambulance to attend. In the meantime, TFS provided first aid. He spoke to PC Irwin on two occasions totalling five minutes or less (i.e. the muted conversations). I will discuss my findings regarding these conversations in more detail. For now, it suffices to say that how they would deal with Mr. Dunn if an arrest was going to be made was among the topics they discussed. Then, at 10:15 p.m., PC Sian went to his police car to get the ASD. On the way back to Mr. Dunn’s location, he stopped to speak to the two women to confirm that Mr. Dunn had been driving the Toyota. After that, he detained Mr. Dunn and walked him back to his police car. As PC Sian put it, he had a lot on his mind: the collision, making sure Mr. Dunn was ok, calling an ambulance, being in charge of the scene and wondering whether he had enough help.
[27] This was by no means a run of the mill impaired/Over 80 investigation, and Mr. Dunn was not detained at the material time. While I am conscious of the fact that Rosenberg J.A. found that the facts in MacMillan were exigent, I do not interpret that as a pre-condition to the flexible application of the forthwith requirement in cases where the suspect is not detained. At para. 39, Rosenberg J.A. wrote that “[i]n light of the fact that the respondent was not detained, the forthwith requirement should have been applied flexibly” (my emphasis); at para. 35, he stated simply that “greater flexibility in the forthwith requirement can be tolerated where the suspect has not been detained between the time the officer forms the grounds and when the officer makes the demand.”
[28] In the circumstances, I find that PC Sian’s demand was made forthwith, notwithstanding the fact that he could have asked PC Irwin to assist him.
[29] So, what about PC Irwin who, based on the record before me, was not otherwise occupied? The Notice of Application focused only on PC Sian’s conduct in this regard. It did not allege that PC Irwin had also failed to make the demand forthwith. However, PC Irwin was cross-examined about it and agreed that he “could have.” As a result, Mr. Sinclair submitted that he ought to have done so at 10:12 p.m. The Crown submitted that PC Irwin did not have a legal obligation to make a demand and that his failure to do so should not concern the Court.
[30] While I have struggled with this issue, I have come to agree with the Crown. On one hand, the language found in Quansah and the other authorities tells us that the immediacy requirement starts from the moment an officer forms a reasonable suspicion. On the other hand, s. 320.27(1) of Criminal Code (which uses the term “may”) is permissive; as Dawe J. (as he then was) wrote in Kubacsek, supra at para. 55, “[i]ndeed … the police are not required to make an ASD demand even where grounds exist to do so.”
[31] In the governing cases, the focus is invariably on the officer who made the demand. Neither party provided me with a case suggesting otherwise. To the contrary, in Kubacsek – upon which Mr. Sinclair relied – the fact that the second officer also had a reasonable suspicion did not form part of the analysis. Rather, it appears to have been taken for granted that the question to be determined was whether the officer who made the demand did so promptly.
[32] Also, taken to its logical extreme, Mr. Sinclair’s argument is that all officers on scene who possess sufficient grounds to make an ASD demand are, in essence, jointly and severally responsible for doing so. That result, in my view, would be impracticable if not absurd. For these reasons, I find that PC Irwin did not, as a matter of law, have an obligation to make an ASD demand. Therefore, his failure to do so did not violate the forthwith requirement.
[33] If I am wrong about that, I would find that PC Irwin acted reasonably by letting PC Sian make the demand in the circumstances of this case, which include the fact that Mr. Dunn was not detained. While the two did not explicitly discuss who was “in charge”, PC Sian took charge very early on. The record supports this conclusion. [2] According to PC Irwin, that is how things “unfolded.” PC Sian spoke to TFS personnel twice, asked Mr. Dunn for his driver’s license, saw to his safety, spoke with the two occupants of the Honda, made the demand, decided to hold off out of concern for residual mouth alcohol, and administered the test. Also, as I will explain below, PC Sian discussed his plan of action with PC Irwin.
D. Were Mr. Dunn’s ss. 8, 9, 10(a) and (b) Charter rights violated?
[34] It follows that Mr. Dunn’s ss. 8, 9, 10(a) and (b) rights were not violated.
E. Did the BWC muting violate Mr. Dunn’s s. 7 Charter rights?
[35] The parties agreed that there is no constitutional obligation on the police to video or audio record their investigation, using BWCs or otherwise. However, aside from Azfar, Mr. Sinclair referred to Durno J.’s statement in R. v. Piko at para. 6 (SCJ) that, “[a]bsent police negligence regarding evidence which they possessed or a deliberate avoidance of recording when the facilities were available there was no Charter violation.” The Crown argued that that statement does not create an absolute rule and must be read in context. I agree. Piko did not involve deliberate avoidance of recording, and in cases where there was such conduct – like Aim and Mohamed, supra – Charter breaches were not made out: see also R. v. Khan, 2010 ONSC 3818 at para. 16. Nor was that the way in which Porter J. decided Azfar. In this regard, cases turn on their facts.
[36] I agree that the proper way to consider this question is through the lens of the right to make full answer and defence and/or abuse of process. I proceed, as the parties have, on the basis that muting the BWCs can constitute a failure to preserve evidence, which has historically been held to attract s. 7 scrutiny as a potential breach of the right to make full answer and defence.
(i) Did the BWC muting prejudice Mr. Dunn’s right to make full answer and defence?
[37] Mr. Sinclair argued (and the Crown agreed) that both officers had reasonable grounds to make an ASD demand before the two muted conversations took place. That being so, the content of those conversations was not relevant or material to Mr. Dunn’s defence. For that reason alone, I would find that Mr. Sinclair has not demonstrated that the muting caused any prejudice to Mr. Dunn’s ability to make full answer and defence rendering his trial unfair.
[38] That said, I would also find that the content of those conversations probably did not involve the officers sharing the basis for their grounds. PC Irwin said that it was possible that they discussed their grounds, and that a reason for doing so would be to run one’s thoughts by another’s before making a decision. However, he did not remember doing so. Unfortunately, he did not make notes of the conversations either. PC Sian testified that he would not have discussed his grounds with PC Irwin because it is not his practice to do so. He believed that he had talked to PC Irwin about his plan of action as a result of his suspicion that Mr. Dunn had alcohol in his body. He was also concerned about Mr. Dunn’s injury. While his notes were not fulsome, he did write down that he spoke to PC Irwin about his “plan of action as suspicion of alcohol and driver’s injury.” That is consistent with the fact that PC Sian also took charge of the investigation. I also found that PC Sian’s evidence was more detailed and reliable than PC Irwin’s. PC Irwin’s recall seemed more tenuous on this and other topics, and his notes were of less assistance to him. For these reasons, I accept PC Sian’s testimony on this issue. [3]
[39] Unlike Porter J. did on the facts of Azfar at para. 30, I do not find that the muted conversations in this case were “related to the extent to which the police had, or did not have, a reasonable basis to make that demand….”
(ii) Did the BWC muting and the prosecution of the case amount to abuse of process?
[40] Setting aside the fact that Mr. Sinclair did not seek a stay of proceedings – the remedy normally sought when abuse of process is alleged – I find that he has not demonstrated that the police conduct in this case violated the principles of fundamental justice underlying the community’s sense of fair play.
[41] Both officers testified that the Toronto Police Service’s BWC policy was created to enhance transparency. [4] However, they believed that they were permitted to mute their BWCs when they were not discussing matters with, or within earshot of, the public. Both now know that their interpretation was wrong. They also both knew that the policy allowed for muting when discussing protected investigative techniques. [5] Not surprisingly, neither could explain how the discussion of one’s observations could amount to an investigative technique. Neither had a good understanding of that term. For his part, and to his credit, PC Irwin sought clarification as to its meaning from a BWC instructor after becoming aware of the Azfar decision. He was told that it had not been defined. He then asked supervisors for examples and was told about surveillance techniques. PC Irwin is still unclear on the meaning of protected investigative techniques. [6]
[42] Like the officers in Azfar, PCs Sian and Irwin agreed that they had muted their cameras deliberately and that, by doing so, they knew that their conversations would not be recorded and therefore could not be provided to the Crown for disclosure. Unlike the facts in Azfar, however, PC Sian was of the view that the conversations were not important to the investigation, and I have found as a fact that they were not.
[43] Also, there is a distinction between doing something knowing that it will lead to certain outcomes and doing something for the specific purpose effecting one or more of them. In Azfar at para. 22, Porter J. found that
the action of muting the audio in the body-worn cameras was taken by the officers for the specific purpose of withholding from the defence information about the officers' observations of Mr. Azfar, and the extent to which their observations did or did not provide a basis for a reasonable suspicion that Mr. Azfar had alcohol in his body pursuant to s. 320.27(1), and therefore provided a basis for an ASD demand under that section. (My emphasis.)
[44] In this case, I make no such finding. Rather, I find that the officers were wrong to mute their cameras because of their erroneous interpretation of the BWC policy [7] that to do so was permitted when no member of the public was within earshot. The fact that they now know that they were wrong does not make that conduct worse in retrospect.
[45] Their decision to mute their BWCs, while clearly wrong, does not amount to abuse of process in this case.
F. Should evidence be excluded due to violations of any of Mr. Dunn’s Charter rights?
[46] There having been no Charter breaches, it follows that the police observations, utterances (that are not otherwise inadmissible) [8] and breath results are admissible on the merits.
G. Has the Crown proved that Mr. Dunn was the driver?
[47] Whether the Crown has proved that Mr. Dunn was the driver at the material time requires the assessment of circumstantial evidence. In R. v. Villaroman, 2016 SCC 33, the Supreme Court of Canada explained how to assess circumstantial evidence in the context of the burden of proof and the presumption of innocence in a criminal trial. On behalf of the Court, Cromwell J. wrote:
37 When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd R. v. Comba, [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
38 Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
Later, Cromwell J. added:
41 … to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative -- a helpful way of describing the line between plausible theories and speculation.
42 … "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences;" that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
[48] The pertinent evidence is as follows. Near Falstaff Avenue, Keele Street has six lanes, three going in either direction. Ms. Jocelyn Barnes was driving the Honda in the centre lane with her friend in the front passenger seat. She was traveling at 50 km/h. She saw the Toyota stopped in the right lane, signalling left, so she merged to her left to give it a lane. Instead of merging into the centre lane, the Toyota suddenly turned in front of the Honda, as if doing a U-turn. She was unable to stop and the Honda rammed into the driver’s side of the Toyota. Both airbags deployed in the Honda. Frightened, both women got out of the Honda. Ms. Barnes told her friend to call 911. She then re-entered the Honda to turn off the engine. She spoke to the 911 operator as other motorists stopped to ask if they were ok. A male she later identified as Mr. Dunn asked them if they were ok. She saw broken glass, and believed it came from the Toyota’s windshield. [9] She hurt her wrist and said that her back was sorer than before. Her friend was bruised from the seatbelt. She did not know if Mr. Dunn was injured.
[49] The Honda was abutting the Toyota such that exiting it from the driver’s side was impossible. Ms. Barnes thought that Mr. Dunn was the driver of the Toyota because he came around the back of it from the passenger side to ask if they were OK. He was the person who remained at the scene whom she identified to police as the driver. She had not seen him exit the Toyota, but saw no one else in the area. The process of getting out of the Honda, telling her friend to call 911 and returning to turn off the engine lasted “maybe one minute.” If someone had exited the Toyota and left during that time, she “guessed she wouldn’t have noticed.” She “guessed” that it was possible that Mr. Dunn had been a passenger.
[50] PC Sian has been a police officer since early 2014. He spent most of that time with Traffic Services. Prior to this incident, he had investigated approximately 30 impaired driving cases and close to 800 motor vehicle collisions. He searched and inspected the Toyota and was asked to give certain opinions about its state (and that of the Honda). Mr. Sinclair did not object. Based on PC Sian’s extensive experience and direct observations, he was able to give lay opinion evidence regarding the state of the vehicles. It was helpful, did not go to the ultimate issue and was presented fairly.
[51] The Toyota’s driver’s side airbag had deployed, as well as the “curtain” airbags running along the top of the driver’s side windows. The driver’s side seatbelt, like those of both front seats of the Honda, was extended and slack. In his experience, seatbelts can be stuck in a loose position after an impact. On the BWC footage, one can see that the Toyota’s passenger side seatbelt is retracted, not stuck in a loose position. PC Sian had not noted that fact, but acknowledged it during the presentation of this BWC footage. He remembered having thought to himself “at least the guy was wearing a seatbelt.” He acknowledged that sometimes airbags do not deploy during impact even if someone is sitting in the corresponding seat.
[52] The Toyota also had damage to its passenger side doors and the pillar between them such that the rear door would not close. The front passenger side rim was dented, and did not have a tire on it. He surmised that it must have been dented by impact with something such as a curb. Also, tires do not disintegrate on impact. One would have to drive on a flat tire for it to do so. The damage to the passenger side of the Toyota was not consistent with its collision with the Honda. It must have happened earlier. There were also gouge marks on the surface of the road leading to the Toyota’s front passenger side wheel.
[53] PC Sian found Mr. Dunn’s driver’s license on the front passenger seat. He also found his wallet and insurance documents. Medication in Mr. Dunn’s name was in the centre console. Four bottles of Smirnoff vodka were in the car: two behind the front passenger seat and two in the hatch. One of those found behind the seat was a ¾ full 750 ml bottle; the others were empty.
[54] Mr. Sinclair argues that there is a plausible or reasonable inference available that Mr. Dunn was a passenger in the Toyota, the driver having absconded immediately after the crash with the Honda. (He also argued that many people do not wear their seatbelt.)
[55] The Crown argues that such an inference is speculative and implausible. It would entail that in the space of less than a minute after the impact, two occupants exited the Toyota and one fled by crossing two or four lanes of traffic unseen. She also points out that only the Toyota’s driver’s side airbag had deployed and that the front passenger side seatbelt was retracted.
[56] I find that the inference that Mr. Sinclair urges, while inconsistent with guilt, is not reasonable or plausible. What is more, it is excluded by the totality of the circumstantial evidence when seen in light of logic and human experience.
[57] In addition to the Crown’s argument, with which I agree, other facts (none of them dispositive on their own) make the absconding driver theory implausible. The conclusion that Mr. Dunn is the owner of the Toyota is inescapable and tends to support the inference that he was the driver. The Toyota was stopped at the curb before making the ill-advised U-turn. Its rear passenger door could not close and its front driver’s side wheel was no more than a dented rim. It is obvious that the passenger side damage preceded the collision with the Honda. The theory is that someone who did not own it would have taken the risk of driving it in that condition. The theory goes further: two people would have chosen to remain in such a car while it was in motion, one of them without wearing a seatbelt.
[58] The absconding driver theory is implausible. The only reasonable conclusion is that Mr. Dunn made the U-turn and I am satisfied beyond a reasonable doubt that he did.
[59] The Crown made submissions about impairment. It is not entirely clear whether it was disputed as Mr. Sinclair’s submissions about it were premised on the assumption that the evidence at the scene would be excluded. So, out of an abundance of caution, I will address it.
[60] Mr. Dunn’s ability to drive was obviously impaired by the effects of alcohol. When PC Sian walked him to his police car to provide an ASD sample, he stumbled. During the time when PC Sian held off because of concerns about residual mouth alcohol, Mr. Dunn could be heard slurring his words and, during one exchange, speaking incoherently. The dynamics of the accident also speak to impairment. Mr. Dunn was either unaware of the extensive damage to the passenger side of the Toyota, or chose to do drive it anyway by abruptly making a U-turn right in front of another vehicle approaching at 50 km/h. It goes without saying that the utterances of Mr. Dunn found in the Agreed Statement of Fact did not leave me with a reasonable doubt on this issue.
III. Conclusion
[61] For these reasons, I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Dunn is guilty of both counts on the Information.
Released: December 13, 2023
Justice Patrice F. Band
[1] It is not clear because when making his notes, PC Sian relied on his watch, which was late relative to the BWC footage. I have chosen to rely on the times seen on the BWC for the sake of consistency. Given my conclusions, PC Sian’s exact arrival time is of little import. [2] In his reply submissions, Mr. Sinclair seemed to agree that PC Sian “took the lead.” [3] In light of these conclusions, I need not determine which of the two muted conversations contained this particular discussion. [4] The policy, Procedure 15-20 Body Worn Camera, was not filed as an exhibit but rather given to me as an aid. It is available online at https://www.tps.ca/media/procedures/3384e708-ff80-4807-8c57-557a8366e5ef.pdf [5] Ibid, at p. 7, no. 7. [6] Roberts J. made the same observation about PC Irwin in Aim, supra at para. 59. [7] It does not create statutory obligations, much less constitutional rights: for a similar finding, albeit regarding the YRP’s in-car camera system (ICCS) policy, see R. v. Kurmoza, 2017 ONCJ 139 at para. 17. [8] Mr. Sinclair conceded that Mr. Dunn’s utterances to PC Sian regarding his consumption of alcohol, which led to concerns about residual mouth alcohol, were voluntary and admissible in the trial. They were the subject of an Agreed Statement of Fact, entered as Exhibit 6. [9] The windshield was damaged.