Ontario Court of Justice

Date: 2024 04 24 Court File No.: Toronto Region 21-12001246, 21-12001258

Between: HIS MAJESTY THE KING

— AND —

Alan SMITH

Before: Justice Cidalia C.G. Faria

Heard on: January 16, 17, 2024 Reasons for Judgment released on: April 24, 2024

Counsel: Rishabh Nigam, counsel for the Crown Yaroslav Obouhov, counsel for the defendant Alan Smith

Faria J.:

I. Introduction

[1] On July 2, 2021, after a single motor vehicle collision on Highway 401 in Toronto, Alan Smith was charged with driving a motor vehicle while impaired by alcohol, driving with over 80 mg of alcohol per 100 ml of alcohol in his body and dangerous operation of a motor vehicle. [1]

[2] The Defence originally alleged that Mr. Smith’s 10(b) right to counsel was violated. After the Crown called its evidence, the Defence appropriately abandoned its Charter application.

[3] I heard from three witnesses: the civilian who observed the collision, the investigating officer who arrested Mr. Smith, and the Qualified Breath Technician who testified to the results of the breath tests Mr. Smith completed.

[4] All elements of all three charges are conceded but for the following three which I must decide:

i. Did the Crown prove it was Mr. Smith driving the motor vehicle involved in the collision? ii. If it was Mr. Smith driving, did the Crown prove impairment by alcohol? iii. Did the Crown prove Mr. Smith operated his motor vehicle in a dangerous manner?

[5] The Crown submits the answer to each question is “yes” and it has proven all three charges beyond a reasonable doubt, while the defence submits that the Crown has not discharged its burden of proof and Mr. Smith should be acquitted of all three counts.

[6] Before I begin to review the evidence, and apply the legal principles to the facts, I must say, that as in every criminal case, Mr. Smith is presumed innocent. The onus rests on the Crown to prove the essential elements of the offence beyond a reasonable doubt. That onus never shifts. Reasonable doubt is a doubt based on reason and common sense taken from the evidence or lack of evidence. [2]

[7] I note that when I consider what evidence to accept, I am considering the credibility and reliability of a witness. Credibility relates to whether a witness is speaking the truth. Reliability relates to the actual accuracy of the testimony. The credibility and reliability of a witness must be tested in the light of all the other evidence presented. [3]

II. Evidence

[8] Pulsara Kandumulla was driving about 90 km per hour in the middle lane of Highway 401 when he saw in his rear view mirror a black Honda change from the furthest right-hand lane behind him, through the middle lane and on to the furthest left-hand lane and then tilt onto two wheels.

[9] The Honda then passed in front of Mr. Kandumulla from that left most lane to the right most lane and hit a steel railing with its front, spun, and hit the railing again. It then skidded to the first lane and stopped.

[10] Mr. Kandumulla saw the driver partially ejected from the front driver’s seat and bottles spill and break onto the highway.

[11] Mr. Kandumulla pulled to the side of the road and called 911. When police arrived, he gave them his dashcam video which captured the collision. This portion of the dashcam video was filed as an exhibit.

[12] Officer Abu-Hijleh De Armas testified he received a radio call to attend the site of the collision at 7:28 p.m. and did so at 7:40 p.m. When he arrived, he saw Mr. Smith being attended to by Emergency Medical Services (EMS). He observed skid marks from one side of the road to the other and back. He described the Honda as demolished and blocking lane one. The engine was still running. The lights were still on. He described the tires of the vehicle as “bald” and saw broken bottles of Heineken beer all over the road.

[13] He noted the weather was clear, it was still daylight, traffic was moderate, and the road was dry.

[14] He observed the dashcam video of the collision on a colleague’s tablet.

[15] When EMS completed their assessment, Officer De Armas spoke to Mr. Smith, and confirmed his identity with his driver’s licence. Officer De Armas observed Mr. Smith had red, glossy, bloodshot eyes with pin-drop pupils, and had a smell of alcohol on his breath. He appeared disoriented and unaware of what was going on.

[16] As a result of both his observations of the dashcam video and his interaction with Mr. Smith, he arrested Mr. Smith for both dangerous operation of a motor vehicle and impaired driving. He proceeded to arrest Mr. Smith for those two offences in succession.

[17] After informing Mr. Smith of the reason for his arrest, providing him with his rights to counsel twice, and cautioning him twice, Officer De Armas made a breath demand for Mr. Smith to provide samples of his breath. Mr. Smith declined to speak to counsel.

[18] As Mr. Smith had to be taken to hospital, Officer De Armas went with him, and contacted Qualified Breath Technician, Officer Ryan Stone to attend the hospital.

[19] Officer Stone attended Sunnybrook Hospital, reviewed Mr. Smith’s arrest, recapped the Rights to Counsel, confirmed Mr. Smith did not want to speak to counsel and proceeded to obtain two proper samples of Mr. Smith’s breath. Mr. Smith’s first sample was 121 milligrams of alcohol in 100 milliliters of blood, and his second sample was 108 milligrams of alcohol in 100 milliliters of blood. All the proper documentation was provided to Mr. Smith and filed with the court as exhibits.

III. Issue 1: Identity

[20] Mr. Kandumulla described the driver of the vehicle as a slim, 6-foot, black male who he saw hanging out through the front driver’s seat window after the collision.

[21] Officer De Armas testified he observed a male being treated by EMS, obtained his Driver’s Licence from EMS, confirmed him to be Alan Smith, and pointed him out in court. At the time, the officer satisfied himself that Alan Smith was the same male he saw on the dashcam video partially ejected out of the driver’s window.

[22] Both witnesses testified in a thorough, clear, measured, and careful manner. Their evidence was unshaken. In addition, a close look at the dashcam video shows the driver hanging out of the driver’s side window and no other individuals inside the vehicle.

[23] I find both witnesses credible and reliable on this point and I find the Crown has proven Alan Smith to be the driver of the motor vehicle beyond a reasonable doubt.

IV. Issue 2: Impairment

[24] It is well-established by the Ontario Court of Appeal in R. v. Stellato [4] that the Crown is not required to prove any specific level of impairment. Evidence that establishes any level of impairment in the ability to drive caused by alcohol or drug is sufficient proof of the offence.

[25] In addition to the four indicia of alcohol consumption observed by the officer in Mr. Smith’s eyes, Mr. Smith also presented as disoriented and unaware of his surroundings. The collision had been at least 30 minutes before, and the purpose of attending the hospital was stitches. This demeanour evidence is another indicium of impairment. Finally, the officer smelled alcohol on Mr. Smith’s breath. None of these indicia were challenged to be anything other than signs of impairment by alcohol.

[26] I consider this indicia in combination with Mr. Smith’s driving and collision. Mr. Kandumulla testified there were no other cars involved in the collision, he saw no other vehicles driving in any unusual manner, the traffic was moderate and steady, which can be observed on the dashcam video. The evidence is this collision was the fault of Mr. Smith, and Mr. Smith alone.

[27] The combination of the indicia of impairment, with the smell of alcohol coupled with the collision with an immovable object lead to the conclusion that Mr. Smith was impaired by alcohol, at least to some extent.

V. Issue 3: Dangerous Driving

[28] Whereas the charge of impaired operation focuses on Mr. Smith’s ability to drive, the charge of dangerous driving focuses on Mr. Smith’s manner of driving.

[29] The Supreme Court of Canada in R. v. Roy [5] stated that the dangerous operation of a motor vehicle consists of two components:

i. Prohibited conduct – operating a motor vehicle in a dangerous manner, and ii. A required degree of fault, a marked departure from the standard of care that a reasonable person would observe in all the circumstances.

[30] The trier of fact must not infer simply from the fact that the driving was, objectively viewed, dangerous, that the defendant’s level of care was a marked departure from that expected of a reasonable person in the same circumstances. To determine whether the fault element in dangerous operation has been established, the trier of fact should answer two questions:

i. In light of all the relevant evidence, would a reasonable person have foreseen the risk and take steps to avoid it if possible? ii. Was the defendant’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the Defendant’s circumstances?

[31] When reviewing the evidence on this charge, I will disregard Officer De Armas’ description of Mr. Smith’s Honda having “bald” tires. I do so because, although such a state of a vehicle’s disrepair may contribute to fault, as in Mr. Smith chose to drive a vehicle with a defect that would compromise the vehicle’s operability on a highway, the officer’s description is too vague to discern the effect, if any, of the condition of the tires. He does not specify the level of tread loss, how many tires were in such a condition, and how he came to this conclusion.

[32] I will also reject the evidence that the road was dry. Although it may have been by the time he arrived on scene and as Mr. Kandumulla recollects, the evidence of the dashcam video at the time of the collision depicts intermittent precipitation, including water on the windshield and the windshield wipers in intermittent operation.

[33] I find the traffic to have been moderate pursuant to the description of both witnesses and as seen on the dashcam video.

[34] I now turn to the manner of driving. As observed and described by Mr. Kandumulla, Mr. Smith’s Honda was driving at a high rate of speed when it erratically changed lanes on the highway, cutting across from the third lane to the first. Speeding alone is insufficient to ground dangerous operation of a motor vehicle. However, speeding at such a high rate, when coupled with erratically changing lanes while on a highway, when there is precipitation, to the point that these maneuvers cause both the vehicle to tilt onto two wheels and to hit an immovable object so hard, the driver, is partially ejected through the window, is evidence of a marked departure from the standard of care that a reasonable person would observe in all the circumstances.

[35] Given it was a highway with moderate traffic and some precipitation, both driving fast and changing lanes so quickly it causes the vehicle to tilt are maneuvers that would have been avoided by a reasonable driver in the same circumstances and the collision was both foreseeable and should have been avoided.

[36] As a result, I find the crown has proven the charge of dangerous operation of a motor vehicle beyond a reasonable doubt.

VI. Conclusion

[37] I find Mr. Smith guilty of all three counts and will stay the Impaired driving charge pursuant to R. v. Kienapple [6] .

Released: April 24, 2024 Signed: Justice Cidalia C.G. Faria

[1] Sections 320.14(1)(a), 320.14(1)(b), and s. 320.13(1) of the Criminal Code. [2] R. v. Lifchus, [1997] 3 S.C.R. 320. [3] R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para 27. [4] R. v. Stellato, [1993] O.J. No. 18 (C.A.), aff’d 1994 S.C.J. No. 51. [5] R. v. Roy, [2012] 2 S.C.R. 60. [6] R. v. Kienapple, [1975] 1 S.C.R. 729.