ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-082-00AP
DATE: 2014 Sep 18
NAPANEE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
HOWARD LEE
Appellant
R. Andrew Scott, for the Respondent
Paul Quick, for the Appellant
HEARD: September 15, 2014 at Napanee
Scott, J.
APPEAL DECISION
[1] This is an appeal from a conviction for dangerous driving. At the conclusion of the trial, this Appellant was acquitted of impaired driving and guilty of dangerous driving.
[2] After submissions, the trial judge, Justice Griffin, sentenced the Appellant to a one year driving prohibition and a $1000.00 fine.
[3] The Appellant submits that the trial judge misapprehended the evidence relating to the quantity of alcohol consumed by the Appellant following the accident and secondly, that the trial judge erred in using the results of the Intoxilyzer to draw an inference that the Appellant had alcohol in his system at the time of the accident.
[4] As well, the Applicant submits that the trial judge misapprehended the evidence in not taking into account the faulty curb as a cause of the accident.
FACTS
[5] The facts are not really in dispute.
[6] The Appellant resides a short distance from the off ramp of Highway 401 at Odessa. Immediately prior to the accident, he was witnessed to be driving in the passing lane of Highway 401 at a higher rate of speed than other users in the general area, which such speed was estimated to be 130 to 135 km/hr. Ahead of him, at some distance, were an automobile and a van which were in the process of passing a transport truck occupying the driving lane of the highway. The Appellant, as he approached the group of vehicles, came up behind the car in the passing lane “switched lanes, got into the slow lane” without reducing speed, “lost control of the vehicle, … nosed into the transport, over corrected, then switched his tail out, hit the off shoulder, went into the dirt and knocked the exit sign down” at the Odessa off ramp. In the process of attempting to exit Highway 401 at the Odessa exit, a loud braking noise was heard by a resident in the area immediately before the Appellant left the highway. As a result of the collision with the highway sign, the air bags in the Appellant’s vehicle were deployed and the Appellant’s vehicle was damaged beyond repair. However, despite the condition of the vehicle, the Appellant was able to drive his vehicle to his house situated a short distance away (200 to 300 metres along the adjoining highway). There, he parked and exited the vehicle and a short time later, was seen by his mother-in-law to be in his office located in his house beside the front door consuming “probably vodka.” From what the mother-in-law, Nucretia Trifan, described the container variously as “a little plastic bottle – a small bottle, plastic, squeezed and flat, not long. Flat so not a round one.”
[7] A short time after arriving home, the Appellant was witnessed by a neighbour to exit his dwelling and retrieve some items from the destroyed vehicle. The neighbour, Christopher Fergus, spoke with the Appellant and noted no odour of alcoholic beverage at that time. The police arrived a short time later and initially smelled no alcoholic beverage on the Appellant. However, shortly thereafter, the police officer noted a slight odour of alcohol on the Appellant’s breath and other indicia of impairment and as a result, demanded a breath sample which was provided at the police station within two hours of the accident and which resulted in readings of .084 and .077 respectively. The Appellant was subsequently charged.
[8] Ultimately, the trial judge determined, based largely on evidence that he accepted as credible and reliable from the mother-in-law, Nucretia Trifan, who testified with the assistance of a Romanian translator, that the Appellant had consumed a limited amount of alcohol following the accident. He found that although the Appellant was not guilty of impaired driving, the Appellant had consumed alcohol prior to the accident and that the consumption of alcohol prior to the accident was a factor which the trial judge considered in his reasoned 25 page decision and which resulted in the conviction of dangerous driving.
[9] The Appellant submits that the trial judge erred in misapprehending the evidence of the post-accident consumption of alcohol in that it would be misappropriate for the trial judge to conclude that given the Intoxilyzer readings of .084 and .077, the Appellant would have been drinking alcohol prior to the accident. Simply put, the trial should not have taken judicial notice that the Appellant had consumed alcohol prior to the accident based on his finding that the Appellant had consumed a limited amount of alcohol following the accident when the amount of “bolus” alcohol has not been established to any degree of certainty.
[10] The Crown submits that this Court should allow a considerable deference to the trial judge in his findings. He further argues that the trial judge considered all of the reliable and credible evidence and concluded using a “common sense” approach that the Appellant had consumed alcohol prior to the accident despite the intervening alcohol.
[11] Justice Griffin is a seasoned, well-respected judge, noted for his practical approach to matters. My review of the case law provided by counsel including R. v. Maharaj, [2007] O.J. No. 1184 (S.C.J.), R. v. Rajeswaran, [2003] O.J. No. 2210 (CJ), R. v. Tran, 2001 5555 (ON CA), [2001] O.J. No. 3056 (CA), R. v. Hoffner, 2005 32924 (ON SC), [2005] O.J. No. 3862 (SCJ) leaves me to conclude that where there was intervening or “bolus” consumption of alcohol, it would be dangerous to conclude that an accused consumed alcohol prior to the event except in rare situations where other strong evidence was present or where the amount of intervening alcohol could be objectively determined through the assistance of an expert.
[12] On this basis, I find that the trial judge misapprehended the evidence relating to the post-accident consumption of the alcohol.
[13] The second issue for this court to determine is whether a new trial is to be ordered.
[14] The test here is whether there is any evidence before the trier of fact that could result in a conviction for dangerous driving despite the removal of the previous consumption of alcohol as a factor to be considered.
[15] The Appellant submits quite properly that the speed (130 to 135 km/hr) is not by itself a factor. However, given the driving displayed by the Appellant prior to the accident as described and analysed by the trial judge at appropriate times throughout the trial, there is little doubt that there is more than enough evidence that the driving by the Appellant was a “marked departure” from the norm, even without the consumption of alcohol prior to the accident being a consideration.
[16] The Appellant submits that the evidence provided by a local resident concerning the reconstructed curb at the exit causing four other accidents in the month preceding this accident was of little assistance to the trial judge and the trial judge was correct in concluding such evidence to be a “red herring” at best.
[17] For these reasons, I set aside the conviction and order a new trial.
Honourable Mr. Justice Robert F. Scott
Released: September 18, 2014
NAPANEE COURT FILE NO.: CR-14-082-00AP
DATE: 2014 Sep 18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
HOWARD LEE
Appellant
appeal decision
Scott, J.
Released: September 18, 2014