R. v. Rickett, 2015 ONSC 1890

CITATION: R. v. Rickett, 2015 ONSC 1890

COURT FILE NO.: CR-13-2966

DATE: 20150327

DELIVERED ORALLY: March 27, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

– and –

Cole Rickett

Defendant

COUNSEL:

Lisa Defoe, for the Crown

Patrick J. Ducharme, for the Defendant

HEARD: March 9-12, 16, 19, 20, and 27, 2015

THomas J.:

Background

[1] This prosecution results from a motor vehicle accident on New Year’s Eve, 2011. At about 2:15 p.m., on a clear afternoon, Cole Rickett was driving his 1997 brown Chevrolet pickup southbound on Essex County Road 11 (commonly known as Walker Road). He approached the intersection of Walker Road and South Talbot Road. Both roads at the time had an 80 km/hr. speed limit.

[2] The intersection was controlled by an oversized stop sign and flashing red light directing vehicles proceeding westbound on South Talbot Road to stop and proceed across Walker Road only when it was clear to do so. Those, like Cole Rickett, who were travelling on Walker Road faced a flashing amber caution light. By all accounts this was a dangerous intersection. Numerous accidents had happened here before December 31, 2011.

[3] At the time of this event, Suman Dutta was driving his wife’s 2003 Acura SUV west on South Talbot Road. His wife, Carolyn, was in the front passenger seat. Their children Esme, Liam and Vivienne (ages 8, 5 and 2 respectively) were in the rear seat. The Duttas lived in Ann Arbor, Michigan.

[4] All evidence seems to indicate that Suman Dutta stopped at the stop sign and then inexplicably pulled out into the path of the oncoming Rickett vehicle. Cole Rickett’s pickup collided squarely with the passenger side of the SUV.

[5] It was a violent collision and the vehicles came to rest in a grassy shallow ditch on the southwest corner of the intersection. The Dutta children, Esme and Liam, suffered injuries significant enough to amount to bodily harm, as did their father and driver Suman Dutta. Tragically, Carolyn Dutta died as a result of her injuries.

[6] Cole Rickett suffered a fractured left wrist.

[7] Air bags in both vehicles deployed. The photographic evidence shows the remnants of the shredded SUV and the serious damage to the front of Rickett’s pickup.

[8] At the scene Cole Rickett was arrested for operating a motor vehicle while impaired by alcohol and causing bodily harm to the members of the Dutta family. After breath tests he was also charged with the related over 80 mg offence.

[9] There is no dispute in this trial proceeding that Cole Rickett was driving the pickup when the accident occurred and that the death and injuries were a result of the accident. It is admitted that Rickett had consumed alcohol prior to the collision.

The Charges

[10] The trial indictment includes 10 counts all related to drinking driving offences and related to the death of Carolyn Dutta and the bodily harm of Suman, Esme and Liam Dutta.

Issues

[11] There are three issues in this trial I need to resolve:

1. Is there sufficient proof to conclude that Cole Rickett’s ability to operate a motor vehicle was impaired by alcohol?

2. Can I conclude that at the time of the collision he had over 80 mg of alcohol in 100 ml of his blood?

3. Did Cole Rickett cause death and bodily harm to those victims while impaired by alcohol and/or while his blood alcohol was over 80 mg in 100 ml of blood?

[12] I intend now to review the evidence as it relates to the issues I have identified.

Issue 1 – Impairment

[13] Raymond Simard lived only 300 feet from this accident and happened to be a captain in the Town of Tecumseh fire and rescue service. He heard the accident and responded to his pager to attend.

[14] He went to the scene and notified his dispatcher of heavy vehicle damage and the potential of trapped injured children.

[15] He saw Cole Rickett standing near his pickup and asked if he needed medical attention. He got to within six feet of Rickett who advised he needed no attention. Rickett spoke in a clear voice. He had no visible signs of injuries. Simard then turned his attention to the Dutta vehicle.

[16] Similarly, Steven MacVoy lived nearby. He heard the accident. He thinks it was about 2:30 p.m. He went to the scene. He saw Rickett coming out of his pickup and inquired if he was “o.k.”. Rickett advised that he was. MacVoy believes he was within 10 feet of Rickett who looked fine to him except that he had blood on his mouth. He is unsure of the origin of the blood but Rickett spoke clearly and was understandable.

[17] Constable Michael Whitelaw is a veteran Ontario Provincial Police officer and the officer in charge of this investigation. He was dispatched to the accident at 2:33 p.m. and took about 10 minutes to arrive.

[18] During the course of his assistance at the scene, Constable Whitelaw observed Cole Rickett leaning on his pickup. He confirmed Rickett was the driver and asked about injuries. Rickett said “no injuries”. He requested the customary documents from Rickett who leaned into his vehicle and retrieved them without difficulty.

[19] Rickett needed to retrieve his driver’s licence from his left rear pocket and moved slowly and deliberately in doing so. This movement caused Whitelaw concern and was one of his “indicia” of impairment. He agreed that at the time he did not know Rickett’s left wrist was broken; the hand he used to retrieve his wallet.

[20] Whitelaw testified that Rickett was not looking at him but down the road away from the accident with a “1,000 yard stare”. He declined the defence suggestion that Rickett was looking at the other vehicle where people were being extricated.

[21] He said Rickett’s eyes were red and glassy, although he admitted the deployment of the airbag and related white powder might be an irritant. He smelled an odour of alcohol from Rickett’s breath. Rickett shifted his weight from one leg to another in what Whitelaw demonstrated was a slight swaying but he conceded Rickett was on an uneven grassy ditch bank.

[22] The officer asked him about any alcohol consumption and he is sure Rickett first told him he had had two beers at lunch, and then said he had had four pints at Boston Pizza saying he just left that establishment, which was only about 10 minutes away, and had finished his last drink about 15 minutes ago.

[23] Whitelaw had at this point formed the opinion that Cole Rickett was impaired by alcohol and arrested him at 2:57 p.m. for impaired driving causing bodily harm.

[24] Whitelaw cautioned Rickett and advised him of his right to counsel, and Rickett asked to speak to a lawyer. He said he had nothing to say “right now”. At 3:12 p.m. Whitelaw and Rickett were at the detachment. At Rickett’s request, he was put in touch with Patrick Ducharme, his trial lawyer.

[25] Whitelaw testified as to the grounds he provided Constable Zajac, the breath technician, but he believes those grounds were simply the observations he had recounted to the court. He has no independent recollection of the grounds and made no notes of them.

[26] Whitelaw removed Rickett’s personal property at the detachment and took two unidentified beer bottle caps from his pocket.

[27] After speaking to counsel, Rickett advised that he needed medical attention for an injured left wrist and Whitelaw transported him to Hotel-Dieu Grace Hospital in Windsor, arriving at 4:54 p.m. Rickett was seen by Dr. Varsava who advised at 4:59 p.m. that Rickett was physically able to provide “breath samples”. Whitelaw turned Rickett over to Constable Zajac. At 5:39 p.m. Zajac advised Whitelaw that the readings were over the legal limit, and Whitelaw arrested Rickett for the over 80 mg offence.

[28] While at the hospital Whitelaw requested Rickett step on a scale and it recorded 146 pounds. Rickett advised he was 5 feet 9 inches tall. Whitelaw refused the defence suggestion that Rickett clearly weighed substantially more than 146 pounds.

[29] Constable Whitelaw saw no obvious signs of injury on Rickett; no blood on his face or mouth; no bump on his head. In cross-examination Whitelaw agreed that Rickett told him: “They pulled in front of me. I couldn’t do anything. There was nothing I could do.” He also agreed that he did not observe that Rickett had any problem walking and did not observe any slurring of his speech.

[30] Whitelaw has no notes of any further conversation about alcohol consumption while at the detachment. If anything more had been said, he is certain he would remember it and see it as important enough to note. He believes the conversation at the scene was the extent of discussion on that topic.

[31] At 5:20 p.m. on December 31, 2011, Dr. Varsava examined Cole Rickett at Hotel-Dieu Grace Hospital regarding his left wrist injury. It is his evidence that the patient’s mental status was normal. He was able to answer all questions, was cooperative with the ER evaluation, and able to provide a breath sample.

[32] At about 3:48 p.m. Cole Rickett came under the control of Constable Zajac, the qualified breath technician. He noted an odour of alcohol and glassy and bloodshot eyes. He did not form the opinion that Rickett’s ability to operate a motor vehicle was impaired by alcohol until he received the results of the breath tests. Zajac agreed he could not have come to that conclusion before the test results.

[33] In addition to the physical observations relevant to impairment, I have the two breath readings received by Constable Zajac at 5:14 p.m. and 5:38 p.m. respectively. Those readings were 161 and 152 mg of alcohol in 100 ml of blood. The first reading was taken about three hours from the time of the collision.

[34] To make those readings relevant, the Crown called Jean-Paul Palmentier, a forensic toxicologist, at the Centre of Forensic Sciences, who I qualified as an expert to provide this relevant opinion evidence.

[35] I will discuss the breath reading evidence more fully under the next issue but Palmentier did offer other relevant evidence.

[36] It is his view that impairment with respect to driving becomes significant at a Blood Alcohol Content (BAC) of 50 mg/100 ml of blood. Whether impairment is apparent depends on the task. While routinized activities like walking may be practiced, where situations are complex (like driving), the impairment may be marked. Physical signs of intoxication may be absent if a person has developed a tolerance to alcohol.

[37] In addition, it was this expert’s view that: “In my scientific opinion, an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range.”

[38] Cole Rickett and his friend, Randy Montgomery, testified that they each drank 3-18 oz. glasses of Coors Light beer at Boston Pizza between 12:30 and 2:15 p.m. that afternoon. They drank the last half-glass quickly just before leaving. They had consumed no other alcohol. Neither one felt they were affected by the consumption of this beer nor was their ability to drive impacted in any way.

[39] Rickett said after the accident his wrist was painful and swelling, he had a cut somewhere in his mouth, he believes from the air bag deploying in his face. His face was burning from the powder of the airbag. He describes opening his eyes after being hit with the airbag and seeing the car filled with what looked like smoke.

Issue 2 – Blood Alcohol

[40] At about 3:48 p.m. on the afternoon of the accident at the Essex O.P.P. detachment, Cole Rickett came into contact with Constable Zajac, a qualified breath technician. Shortly before this time, Zajac had powered up the Intoxilyzer 8000C. The instrument indicated that the alcohol standard solution had expired (meaning it had not been changed in two weeks).

[41] Zajac indicates that he cleared out the expired solution (lot #20709), opened a new carton of solution and changed the solution to introduce lot #20693. The certificate of analysis from the Centre of Forensic Sciences (CFS) indicating the new and unexpired solution is part of the evidence.

[42] It was at this time Zajac learned that Rickett had sustained a wrist injury and the testing procedure was abandoned while Rickett was transported to the hospital.

[43] Constable Zajac testified that he powered down the Intoxilyzer and dismantled it for transport. He emptied the new solution and put the secured instrument in a seatbelt in his vehicle and transported it to Hotel-Dieu Hospital. Zajac advised that he was at the hospital at 4:23. He says he placed more of the new batch of solution into the Intoxilyzer and successfully completed all three diagnostic checks by 4:57.

[44] I have the printouts or reports from this instrument as part of the evidence in this trial.

[45] The reports confirm the successful diagnostic checks. They confirm that the alcohol standard lot was last changed on December 31, 2011 at 16:53 hours, consistent with the final preparation of the instrument by Zajac, at the hospital.

[46] The report also confirms that the alcohol standard lot # was 20709 or the expired lot. Constable Zajac seems to agree that he would have had to input that lot number into the instrument just before the tests at the hospital or perhaps it may just default to that number if a new one is not entered. He does not know why he used that number or where it came from. He believes he mistakenly inputted the wrong lot number. He says he is 100% certain he used the new lot # 20693 or the instrument would not have functioned and completed the testing. The certificate of technician indicates the new lot # 20693.

[47] Constable Zajac was cross-examined on his method of transporting and using the Intoxilyzer at the hospital. His attention was brought to the rigorous demands of the recommended standards and procedures of the Alcohol Test Committee (ATC) as it relates to mobile or remote location use. Zajac responded that he took appropriate precautions and that the procedures he was pointed to pertained to mobile operations (in vehicles or vessels) or for instruments other than the 8000C.

[48] It was his evidence that he received two suitable samples from Rickett at 5:14 p.m. and 5:38 p.m. yielding readings of 161 mg and 152 mg of alcohol in 100 ml of blood, respectively. He maintained the instrument was functioning properly.

[49] The Crown expert Palmentier was questioned extensively on the maintenance and operation of the approved instrument, the Intoxilyzer 8000C. In addition, he offered BAC projections depending on several drinking scenarios and varying weights for Cole Rickett. Part of his evidence comes from the introduction of three letters of expert opinion he authored on February 9, 2012, December 2, 2014 and January 14, 2015. In addition, he was confronted by the defence report of Dr. Michael Ward which offers an opinion which will be discussed more fully later in this issue.

[50] Mr. Palmentier testified that regarding the tests in question:

A review of the Intoxilyzer 8000C Test Record indicates that the calibration of the instrument was checked and that it appears to have been in proper working order. It is my experience that when a qualified technician operates the instrument properly, it provides reliable readings of the blood alcohol concentration at the time of testing.

[51] He also testified that there was nothing in the test record that led him to believe Constable Zajac had operated the approved instrument improperly.

[52] He was called by the Crown, at least in part, to provide a “read back” of the BAC from the time of the testing to the time of the collision. This was necessary since s. 258(1)(c)(ii) of the Criminal Code, R.S.C. 1985, c. C-46 requires the first test be taken within two hours from the time of the driving.

[53] It was Palmentier’s opinion, taking into account the personal characteristics of Rickett, including the 146 pounds recorded by the hospital scale and other presumptions included in his report, that Rickett’s BAC at the time of the collision was between 160 and 215 mg of alcohol in 100 ml of blood. He suggested to achieve those readings Rickett would have consumed 5.6 to 7, 18 fluid ounce pints of beer with four percent alcohol.

[54] If all other characteristics remained the same but Rickett’s weight was found to be 185 lbs, his alcohol intake must be increased to 7.1 to 9 pints of equivalent beer.

[55] At the request of the defence Mr. Palmentier provided an opinion based on a scenario where Cole Rickett is found to be 185 lbs but consumed three pints of beer between 12:30 and 2:33; the last one being within 15 minutes of the collision. In that hypothetical his BAC upon collision would have been 16-36 mg in 100 ml of blood. If in the same scenario he had only consumed one-half, or 9 ounces, of his final beverage within 15 minutes of the collision, the readings would have been 30-50 mgs.

[56] Dr. Ward is the defence expert. Dr. Ward’s opinion is provided through his report. It is based on the weight of Rickett being 185 lbs and a drinking pattern that began at approximately 12:30 p.m. and ended at approximately 2:15 p.m. with a BAC of 0 at 12:30 p.m. It was his expert opinion that if Rickett consumed three 18 ounce pints of 4% alcohol beer evenly spaced with no drinking after 2:15 p.m., his theoretical maximum blood alcohol concentration would have been between 44 and 64 mg of alcohol in 100 ml of blood.

[57] It is his view, based on that evidence, that Cole Rickett’s BAC would have been 67-87 mg in 100 ml of blood at the time of the collision. Palmentier does not disagree if one assumes the accuracy of those facts.

[58] As previously mentioned, Palmentier was examined as an expert on the issue of instrument reliability and maintenance. He was further pressed by defence counsel, Mr. Ducharme, on the issue of the importance of maintenance. Palmentier was confronted with a number of decisions of the Ontario Court of Justice that considered the disclosure of maintenance records as necessary to examining the reliability of the approved instrument. Particularly, he was directed to the language in the Supreme Court of Canada’s decision of R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187 (St-Onge Lamoureux).

[59] Deschamps J., for the majority, provided the Court’s observation on maintenance and reliability at paras. 25 and 41:

25. …The expert evidence filed in the instant case reveals that the possibility of an instrument malfunctioning or being used improperly when breath samples are taken is not merely speculative, but is very real. The Alcohol Test Committee (“Committee”) of the Canadian Society of Forensic Science (“CSFS”) has made a series of recommendations concerning the procedures to be followed by the professionals who operate the instruments and verify that they are properly maintained: “Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee” (2009), 42 Can. Soc. Forensic Sci. J. 1. The Committee states that before collecting a breath sample, the qualified technician must, among other things, observe the test subject for 15 minutes, conduct a system blank test and system calibration check, and verify the temperature of the alcohol standard, and that the alcohol standard must be changed after a certain number of calibration checks. The Committee also recommends that approved instruments be inspected on an annual basis to ensure that they continue to meet the manufacturer’s technical specifications. According to the Committee, the calibration and maintenance of instruments are essential “to the integrity of the breath test program” (p. 14).

26. It should also be mentioned that the new provisions do not make it impossible to disprove the test results. Rather, Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies.

[60] In response to those comments, Mr. Palmentier provided his opinion on the maintenance and reliability of the Intoxilyzer 8000C consistent with the position taken by the Canadian Society of Forensic Science in its Position Paper, “Documentation Required for Assessing the Accuracy and Reliability of Approved Instrument Breath Alcohol Test Results” (2010), 45 Can. Soc. Forensic. Sci. J. 2.

[61] I expect the paper was published in response to an explosion of demands by defence counsel for instrument maintenance records and manuals as a result of the 2008 amendments of the Criminal Code considered in St-Onge Lamoureux.

[62] Mr. Palmentier’s opinion is provided in his second report and his oral testimony amounts to the following:

As stated in the CFS Intoxilyzer® 8000C Information Sheet, “No analytical testing instrument, including the Intoxilyzer® 8000C, is infallible. For this reason it is critical for quality control procedures including diagnostic tests, calibration check and an internal test procedure (ITP) to be in place at the time of testing to ensure that the instrument is working properly and that the results are accurate and reliable.” Thus there can be instances where the procedures are not followed correctly and/or quality controls are either not performed or performed incorrectly. These instances will be obvious to any party familiar with the Intoxilyzer® 8000C and its information output when viewing the Test Record Cards and/or the Certificate of an Analyst regarding the Alcohol Standard.

Historical data refers to data collected before or after a subject’s breath test and includes but is not necessarily limited to: downloadable data regarding previous tests, diagnostic checks, exception messages, calibration (alcohol standard) logs, maintenance logs and repair records. This information has no predictive value in determining if the instrument is in proper working order at the time of the breath tests in question. Instead, proper calibration check procedures, which were followed in this case, are the primary means of assuring the accuracy of the approved instrument at the time of use. Additionally, the Intoxilyzer® 8000C is designed to continuously monitor its functioning during each subject test, performing two series of diagnostic tests, two ITPs, four air blank tests, two reference blocks and one calibration check using an alcohol standard solution for each breath test conducted.

Finally, each breath test is an independent measurement of an individual’s blood alcohol concentration at the time of breath testing. Two breath test results taken at least 15 minutes apart that are in good agreement (within 20 mg/100 mL truncated) serves to increase the scientific confidence of the results obtained.

[63] In summary, he suggests that while regular maintenance is important to ensure that when you require the use of the instrument it will function properly, once it is powered on, and goes through its self-diagnostic checks, while being operated by a trained technician, it will only produce readings if the instrument is working properly. Those readings can be relied upon as accurate. The instrument will otherwise stop itself from proceeding. Deficiencies in the operation of the instrument will be obvious to the qualified technician in the field and certainly obvious to an expert like Palmentier upon the review of the test record. Here, there are no concerns.

[64] As well, Palmentier was examined regarding the discrepancies in the lot number of the alcohol test solution and the concerns about safely transporting the instrument to the hospital.

[65] His conclusions are contained in his third report:

A review of the Intoxilyzer® 8000C test record indicates that the calibration of the instrument was checked and that it appears to have been in proper working order. However, it was noted based on the supplied documents that there is a discrepancy in the information regarding the lot number of the alcohol standard solution that was actually used. The lot number of the Calwave Ethyl Alcohol Standard entered by the qualified technician into the Intoxilyzer® 8000C and recorded on the test record was 20709. The actual lot number of the Calwave Ethyl Alcohol Standard used by the technician to check the calibration of the Intoxilyzer® 8000C was 20693. Both of these alcohol standard solutions were certified for use with this instrument by an analyst at the Centre of Forensic Sciences (CFS). In addition, based on the expiry date of each lot number, both solutions would have been acceptable for use on the date of this test. This clerical error has no impact on the accuracy and reliability of the tests conducted in this case….

The CFS recommends that when the Intoxilyzer® 8000C and simulator are being transported from the police detachment to another location such as a hospital, that the qualified technician empty the existing solution from the simulator before transport and use a fresh solution upon arrival to check that the instrument is still in proper working order.

[66] Again Palmentier testified that since the test records indicate Zajac last changed the solution at the hospital before the tests were taken, and since the instrument recorded those two readings taken 24 minutes apart, the instrument must have been operating properly and suffering no ill effects from its transport.

[67] Cole Rickett testified that on Saturday, December 31, 2011 he arranged to meet his friend Randy Montgomery for lunch at Boston Pizza on Walker Road. They met in the parking lot at the pre-arranged time of 12:30 p.m. and went into the restaurant together and sat at the bar.

[68] They each ordered a Coors Light Draught Beer and it came in an 18 oz. glass, a like version of which was retrieved from Boston Pizza and entered into evidence.

[69] Rickett said they ate finger food and both had three glasses of Coors Light. He is adamant that that is the number of drinks he told Constable Whitelaw later at the accident scene.

[70] Rickett testified that they talked and at 2:15 p.m. Montgomery announced he had to go visit a friend he was to meet at 2:30 p.m.

[71] Rickett said he called for the bill and he paid the entire bill in cash to speed Montgomery along. They both had approximately one-half of their last pint left and drank it down quickly and proceeded to walk out together.

[72] It is Rickett’s testimony that they went to their vehicles at the same time and pulled out onto Walker Road. It is his evidence traffic was light. He believes it took him only about five minutes at the speed limit to get to the accident location.

[73] It was, as well, Rickett’s evidence that at the time he was 5’9” tall and weighed about 185 lbs. Although his weight fluctuated a bit, he certainly did not weigh 146 lbs in December 2011. He suggests the bottle caps in his pants were from the day before. He had no other alcohol on December 31, 2011, before or after Boston Pizza. He agreed that he has spoken to Randy Montgomery 15-20 times about the events. He thinks the last time was in December 2014.

[74] Randy Montgomery’s evidence meshed with that of his friend in almost every respect. They arrived and left at the stated time. They entered the restaurant together, sat at the bar, ate the same food, drank the same beer at the same pace, including gulping that last half-glass. He confirmed that Rickett paid cash when Montgomery was in a bit of a hurry to leave. He believes they were at Boston Pizza from about 12:30-2:30 p.m.

[75] The only real differences in their testimony are that Montgomery believes Rickett paid the bill after they finished their beer. As well, he thinks it took them about five minutes to get out of the restaurant and pull away and that depending on traffic it might take 6-12 minutes to get from Boston Pizza to the intersection of Walker Road and South Talbot Road.

[76] He is certain Cole Rickett had only three beers with him but acknowledges he was not with him the rest of the day.

[77] The Ontario Provincial Police have provided information regarding this particular approved breath instrument. That police service did not start to conduct periodic inspections until January 1, 2012. As a result, there is no record or log regarding any formal maintenance or inspection prior to the tests which are evidence in this trial. In addition, the records indicate there has been no maintenance on this instrument as of December 2, 2014.

Issue 3 – Causation

[78] Raymond Simard and Steven MacVoy live very close to this intersection. They both agree that they are aware of multiple serious accidents at this location prior to December 31, 2011. They view this as a dangerous intersection. A combination of the oversized stop sign, commercial signs and bushes, as well as the angle of the roadway, obstruct the view of a driver sitting at the stop sign westbound on South Talbot Road while checking for southbound traffic on Walker Road.

[79] Constable Whitelaw recalls attending three serious accidents at this intersection.

[80] All of these witnesses agree that within months of this loss of life, the speed limit was reduced on South Talbot Road to 60 km per hour and the intersection is now fully controlled by traffic lights.

[81] Suman Dutta testified about the tragic events of that afternoon. He was driving the family Acura SUV. They had visited friends only a few miles away from the accident. His three children were in the backseat asleep. His wife Carolyn was in the front passenger seat next to him. He believes he was travelling close to the posted speed limit of 80 km per hour. He thinks he saw the stop sign and flashing red light a “couple hundred yards” from the intersection. He slowed down and stopped at the stop sign. He recalls looking left and right and left again. He was aware of a number of vehicles coming from his right (southbound) but they were too far away to describe and so far away he was not concerned about them posing a threat to his vehicle.

[82] He started up from the sign and accelerated normally moving across Walker Road. It was just before impact that he caught a glimpse in the corner of his right eye of a vehicle (what we now know to be Cole Rickett’s pickup). He had not seen Rickett’s vehicle at all to that point. There was no horn, no squealing of tires, no braking sounds, only the impact directly on the passenger side of his SUV.

[83] He knows his vehicle was then across the southbound lane of Walker Road. He cannot say how much of the lane his vehicle occupied at impact. He thinks it took a couple of seconds for him to move from the stop sign to the point of impact.

[84] After reviewing photographs of the intersection, Mr. Dutta agrees that the commercial sign and the obstructions at the location where he stopped posed some difficulty in viewing the vehicle southbound on Walker Road and close to the intersection.

[85] I heard the evidence of Constable Bortolon, the Ontario Provincial Police accident reconstructionist, who investigated this collision. He determined the collision point of impact to have occurred in the southbound lane of Walker Road (County Road 11) where it intersected the westbound lane of South Talbot Road.

[86] He found no evidence of hard braking, steering, or acceleration from either vehicle prior to impact.

[87] He found the pre-collision speeds of both vehicles to be 14 km/hr. for the Dutta Acura and 86 km/hr. for the Rickett Chevrolet.

[88] Bortolon’s report said this about the existence of any obstructions at the intersection:

Several signs posted near the north – east corner of the intersection created a view obstruction for westbound traffic on South Talbot Road. This view obstruction would obscure approaching southbound traffic on County Road 11 from the view of westbound traffic on South Talbot Road stopped at the posted stop sign. Likewise southbound traffic on County Road 11 would have an obscured view of westbound traffic on South Talbot Road stopped at the posted stop sign.

[89] He concluded the following:

The driver of the Acura stopped his vehicle at the posted stop sign as required. The driver of the Acura then proceeded westbound into the intersection and crossed into the path of the southbound Chevrolet and the collision resulted. There is no evidence to suggest that excessive speed by the Chevrolet was a factor in this collision.

That being said the driver of the Chevrolet did not have enough time to perceive, react, and stop his vehicle prior to the area of impact. Even if travelling at the posted speed limit of 80 km/h and perceiving and reacting within a normal time of 1.5 seconds the collision could not be avoided.

It was suspected that driver error on the part of the operator of the Acura caused the collision with the Chevrolet.

If the operator of the Acura had ensured that there was no oncoming traffic on the through highway before proceeding into the intersection this collision would not have occurred.

[90] Cole Rickett testified that he left Boston Pizza travelling south on Walker Road. He was very familiar with the intersection of Walker Road and South Talbot Road as he has been through it hundreds of times. He has also driven South Talbot Road on the route of the Dutta vehicle numerous times. It was his evidence that at the time of the accident it was hard for a vehicle on South Talbot Road to see northbound Walker Road due to signs in the area. In addition, he said that from his path of travel it was difficult to see someone at the stop sign due to the same commercial signs as well as some construction signs along Walker Road that are shown in the photographic exhibits.

[91] He agreed that further back an open field would have allowed him to see the Dutta vehicle approaching the intersection.

[92] It is Rickett’s evidence that he was proceeding between 75-80 km per hour as he approached the collision scene. He testified he had no time to do anything. He only saw the Dutta SUV as it was just to his left. It came quickly right across in front of him. He thinks faster than 14 km per hour. He stated he had no time to do anything or react in any way before impact.

Analysis

[93] Consistent with the way in which I summarized the evidence I will consider the analysis on an issue by issue basis.

Issue 1 – Impairment

[94] Evidence of impairment need not amount to a “marked departure”. Any degree of impairment in the operation of a motor vehicle from slight to great is enough to make out the offence: see R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90, 78 C.C.C. (3d) 380 (ONCA), aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478, 18 O.R. (3d) 800.

[95] A trial judge must be cautious, however, when assessing impairment on the basis of slight departures from normal functional ability. A slight functional departure may not equate to impairment of the person’s ability to drive: see R. v. Andrews (1996), 1996 ABCA 23, 46 C.R. (4th) 74, 104 C.C.C. (3d) 392 (ABCA).

[96] It is important for me to consider all the evidence relevant to this issue. It does not do fairness to the circumstances to consider each factor in a vacuum.

[97] The following evidence is worthy of consideration:

1. Cole Rickett admits to the consumption of alcohol. Rickett says he had three beers and that he told Constable Whitelaw that at the scene. Whitelaw is certain he was told two beers at lunch and then a statement, "four pints at Boston Pizza with the last drink approximately 15 minutes ago”.

2. Rickett was involved in a motor vehicle collision.

3. He spoke to civilian witnesses at the scene in a clear voice and was responsive to their inquiries.

4. Constable Whitelaw observed:

i. red, glassy eyes – which might be due to the airbag deployment;

ii. swaying – which he demonstrated as a shifting from one leg to another and might be due to uneven ground;

iii. slow extraction of his wallet – which might be due to Rickett’s fractured left wrist;

iv. a staring into space – which might be attributed to the accident and related disorientation;

v. ability to retrieve documents from his glove box without difficulty;

vi. no slurring of speech.

5. Constable Zajac observed an odour of alcohol and red, glassy eyes but waited until after he had his breath results to arrive at his opinion that Rickett’s ability to operate a motor vehicle was impaired by alcohol.

6. With the benefit of the recordings taken about three hours post-accident by the Intoxilyzer 8000C, and the expert read-back, Cole Rickett’s BAC at the time of the collision was 160 mg/100 ml of blood. My reasons for accepting this BAC follow in the analysis of the next issue.

7. Jean-Paul Palmentier, an expert in the effects of alcohol on the human body, testified it was his view that impairment of the ability to drive by alcohol becomes significant at 50 mg/100 ml of blood. He admitted that there is no consensus among the majority of scientists in the area regarding that number.

He offers the opinion that on these readings an individual could be impaired at this BAC.

Further, he suggested that an individual could mask impairment during regular routine tasks and that intoxication may not be evident in those individuals who have developed a tolerance to alcohol.

8. Cole Rickett testified his ability to drive was not impaired by alcohol.

[98] I am not prepared to find Cole Rickett’s involvement in this tragic collision as an indication of impaired operation. In addition, slow movement with his left hand seems reasonable in the context of his injury.

[99] However, while each of the other potential physical indicators of impairment may provide an alternative explanation, when considered together with the breath readings and Palmentier’s opinion, I conclude that Cole Rickett’s ability to operate a motor vehicle at 2:33 p.m. on December 31, 2011 was impaired by alcohol.

[100] I do not accept that the balance of the physical indicators can be explained away as the defence has attempted.

[101] His physical signs exhibited to both officers were far from extreme but I have considered Palmentier’s explanation as to why that might be so and two experienced police officers conclude the presence of impairment.

[102] On the issue of impairment I recognize the defence argument that the notes taken by Whitelaw were made sometime around his transport of Rickett to the hospital. The officer is firm in his evidence that his observations are accurate and his recollections of the comments made by Rickett are verbatim. In the context of this serious injury accident, I accept them as being so.

Issue 2 – Blood Alcohol

[103] This issue is the most difficult and requires a consideration of the interaction of the evidence, the application of s. 258 and the related body of judicial opinion.

[104] I reproduce below the relevant portions of s. 258 which I believe impact this decision:

258(1)(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 243(3), if

i. [Repealed before coming into force R.S.C., c. 27 (1st Supp.), s. 36]

ii. each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

iii. each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

iv. an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of the alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things – that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

(d.01) for greater certainty, the evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of

i. the amount of alcohol that the accused consumed,

ii. the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or

iii. a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;

(d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both

i. a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and

ii. the concentration of alcohol in the accused’s blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;

[105] The circumstances here are not those that were the main focus of the constitutional analysis by the Supreme Court of Canada in St-Onge Lamoureux. The presumptions contained in s. 258(1)(c) are not “in play” here nor are the restrictions on evidence “tending to show” contained in s. 258(1)(c)(iv) and s. 258(d.01). The first reading was taken from Cole Rickett almost three hours from the time of driving.

[106] Despite the arguments of defence counsel, neither are the terms of s. 258(d.1) satisfied. Even if I am to believe the evidence of Rickett that he consumed nine ounces or slightly more of his last beer within 15 minutes of the collision, the evidence available does not satisfy the section.

[107] Section 258(1)(d.1) presumes the collection of samples in a timeframe which allows the presumption to be available. In addition, the half-pint Rickett suggests he consumed before driving does not affect the blood alcohol as contemplated by that section.

[108] Section 258(1)(d.1) contemplates bolus or after-offence drinking that not only means the blood alcohol at the time of driving was less than 80 mg/100 ml but also requires the readings to be found to be accurate. Palmentier’s evidence is all I have on this point. When asked in cross-examination what effect the late consumed alcohol would have on the readings, his opinion, working back from the reading of 161 and 152 mg/100 ml blood, was that the BAC at this time of driving would have been .150 to .160mg/100 ml.

[109] The analysis to be confronted here is the traditional Carter defence, still available given the presumptions are not in place due to the late retrieval of samples. Specifically, does the consumption evidence of Rickett and Montgomery raise a reasonable doubt about the viability of the readings, taking into account all the evidence including, in this case, the evidence of the expert Palmentier?

[110] Issues of proper “operation and maintenance” do not take on the same level of importance in my analysis. However, the evidence of Palmentier requires that I consider the reliability of the Intoxilyzer 8000C as part of my assessment of the “evidence to the contrary”. To that extent, malfunction and improper operation are still relevant. At para. 58 of St-Onge Lamoureux, Deschamps J. contemplated that exercise.

Moreover, it is important to note that, where the accused raises a reasonable doubt that the instrument functioned or was operated properly, this simply means that the prosecution loses the benefit of the presumptions under s. 258(1)(c). The [page220] prosecution can still tender additional evidence to prove that, despite the proven deficiency, the blood alcohol level of the accused exceeded .08 as shown by the test results. [Emphasis in original.]

[111] The judicial treatment of the 2008 C-2 amendments to s. 258, both in St-Onge Lamoureux and its progeny, is helpful in considering whether a reasonable doubt has been raised by the evidence to the contrary or as it is characterized in s. 258 “evidence tending to show”.

[112] The defence attacks the Crown’s case in three areas:

a) There is no evidence that this particular instrument has ever been inspected and maintained and that alone should raise a doubt about the readings.

b) The breath results cannot be trusted because Constable Zajac’s evidence regarding the alcohol test solution is unreliable.

c) Cole Rickett and Randy Montgomery’s evidence on alcohol consumption should be found compelling, or at the very least, raise a reasonable doubt.

(a) Maintenance

[113] The Alcohol Test Committee (ATC) has recommended standards and procedures. One of the recommendations is that the approved instrument be inspected on an annual basis. The Supreme Court of Canada considered those maintenance recommendations in St-Onge Lamoureux. The Court recognized that Parliament did not adopt the Committee’s recommendations (para. 27) and that the Committee described the calibration and maintenance of the instruments as essential “to the integrity of the breath test programs” (para. 25).

[114] This area has been repeatedly explored by cases where the defence has sought disclosure of maintenance records in order to challenge head-on, the reliability and operation of the instrument: see R. v. Lam, 2014 ONCJ 247; R. v. Gubins, 2009 ONCJ 80; R. v. Pfaller, 2009 ONCJ 216; R. v. Jackson, 2014 ONSC 1880; R. v. Hoover, 2009 ONCJ 361.

[115] There is no doubt the specific instrument in issue here has not been inspected. The Ontario Provincial Police have therefore failed to meet the recommended standard of maintenance for this particular Intoxilyzer 8000C. What follows from this conclusion?

[116] Mr. Ducharme, for Rickett, urges me to conclude that the Supreme Court of Canada only found a portion of the amendments to s. 258 constitutional as a result of the ATC recommendations on inspection and maintenance. Deschamps J. found the position taken by the ATC to be an intricate component of the acceptance of the instruments’ results as scientifically sound. He argues that with no maintenance there can be no reliance.

[117] Cases in this area post-St-Onge Lamoureux have seized upon Deschamps J.’s language that I have detailed above, particularly where he states at para. 41:

…Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidence tending to cast doubt on the reliability if the results relate directly to such deficiencies.

[118] In Lam, Knazan J. considered the maintenance records of an Intoxilyzer 5000C. In that instance, the defence expert gave the opinion that the breath technician was not operating the instrument properly because it had not had its regular annual inspection and, further, when it was finally sent for inspection, it had to be repaired. Knazan J. suggested in Lam that through its language in St-Onge Lamoureux the Supreme Court of Canada broadened the meaning of the term “operation” to include “maintenance”; therefore if an instrument is improperly maintained it is by necessity being operated improperly: see Lam, at para. 50. He concluded at para. 59: “It is the improper operation of the instrument that raises a doubt about the reliability because the court has said ‘the results will be reliable only’ if the instruments are maintained properly.”

[119] As a result, Knazan J. found Lam had rebutted the presumption in s. 258(1)(c) and, on the basis of his comment to police that he only had one beer, acquitted him.

[120] With respect, I disagree with the emphasis and interpretation placed by Knazan J. on the language of the court in St-Onge Lamoureux.

[121] At paras. 41-42 Deschamps J. said the following:

It should also be mentioned that the new provisions do not make it impossible to disprove the test results. Rather, Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies.

Since the nature and scope of the evidence that might be considered relevant has not been argued on this appeal, it would not be appropriate to rule on the specific limits of that evidence. I will merely note that, in light of the evidence accepted by the trial judge, there are several pieces [page214] of evidence that can be provided to a person who is charged under s. 253(1)(b) Cr. C., including the breathalyzer readings, the qualified technician’s certificate and the analyst’s certificate concerning the sample of the alcohol standard.

In its recommendations, the CSFS Committee also suggested mechanisms for ensuring that the instruments function properly and for assuring the quality of breath alcohol analyses. It can be inferred from these recommendations that the instruments may not function optimally if the suggested procedures are not followed.

[122] It is clear that the court in St-Onge Lamoureux never goes so far as to say that lack of maintenance or inspection alone is necessarily enough to raise a doubt as to reading reliability. It does say at para. 38 that the problems must be “objectively identifiable and that relate to possible deficiencies in the instrument itself or in the procedure followed in operating it”.

[123] The court suggests at para. 47 that the evidence will be complex and “the accused must retain a technician or an expert to determine whether the instrument malfunctioned or was operated improperly”. The court draws upon the example of R. v. Crosthwait, 1980 CanLII 182 (SCC), [1980] 1 S.C.R. 1089, 52 C.C.C. (2d) 129, where it held that a technician’s failure to check the ambient temperature, as required by the relevant manual, was insufficient to rebut the presumption of accuracy absent evidence that the failure may have affected the results. A mere possibility of a malfunction is not enough. There must be a real doubt raised as to whether it was functioning or being operated properly (para. 53).

[124] In R. v. So, 2014 ABCA 451, the Alberta Court of Appeal considered the effects of the technician’s failure to delay testing after the accused was burping, an action contrary to the direction of the Intoxilyzer 5000C manual. The court found that operating the instrument contrary to the manual was, in and of itself, not enough to raise a reasonable doubt. The court commented on the significance of the manual at para. 42:

With respect to the appellant’s reliance on Bernshaw and Crosthwait for the proposition that manuals of the sort excerpted into evidence here are authoritative, we accept that in both of those cases such information was received into evidence. In each case the manual was accorded the weight considered due in the circumstances. In neither case, however, did the Court hold that such manuals are authoritative in the sense urged upon us by the appellant, that whatever such a manual says ought to be done or must be done or should not be done becomes mandatory before the Crown can rely on the presumptions. If that were so, the drafters of such manuals would be exercising the power our constitution bestowed exclusively on Parliament.

[125] At paras. 26-28 of So, the Alberta Court of Appeal suggests that the Supreme Court of Canada accorded similar weight to the ATC recommendations it considered in St-Onge Lamoureux (paras 26-28).

[126] In R. v. Sandwith, 2014 SKPC 27, the fact that the breath technician left his radio on while conducting the tests, contrary to the manual’s direction, was not enough to be seen as raising a reasonable doubt on the instrument’s proper operation.

[127] In R. v. Woodworth, 2013 ONCJ 407, Forsyth J. found that the technician’s failure to comply with the manufacturer’s recommended procedures for monitoring the tests, without something more, was not enough to raise a reasonable doubt.

[128] In R. v. Wolfert, 2014 ONSC 1681, Healey J. confirmed a conviction where the breath technician took four readings and received an ambient fail warning due to the presence of alcohol vapour in the air. He was unsure if he changed the mouthpiece. The trial judge found readings three and four to be suitable samples as there was no evidence of malfunction or improper operation.

[129] In R. v. Bejevan, 2013 ONSC 2525, Fragomeni J., sitting as a summary conviction appeal judge, dismissed an appeal that suggested the trial judge had erred by failing to find that the lack of yearly maintenance established that the Intoxilyzer was operating improperly. Dean J. came to a similar conclusion in R. v. Dejarlis, 2015 ONCJ 137.

[130] In the context of this prosecution, I have the evidence of the expert Palmentier regarding his view of the role of maintenance and, most importantly, his opinion on the proper functioning of this approved instrument.

[131] I have the recognition of the Supreme Court of Canada that breath tests in approved instruments have been found valid in both scientific and legal communities: see St-Onge Lamoureux, at para. 40.

[132] It strikes me that there is a missing piece to a successful defence argument here: if I am to have a reasonable doubt, I must relate the objectively identifiable problem (the lack of maintenance) to a possible deficiency in the instrument: see St-Onge Lamoureux, at para. 38.

[133] It is because of that missing piece, that disconnect, that I view the defence argument, founded on a lack of maintenance alone, to be that mere “possibility of malfunction or misoperation” that is not enough to raise a reasonable doubt about reliability.

[134] I accept the defence argument that it is difficult to succeed in challenging the reliability of an approved instrument, especially within the structure of the statutory regime. In that regard, Deschamps J. made this comment at para. 79 of St-Onge Lamoureux:

It should be noted that the defence created by Parliament is not illusory simply because accused persons will rarely succeed in raising a reasonable doubt that the instrument was functioning or was operated properly. The existence of a defence must not be confused with how often those presenting it are successful. As Judge Duncan noted in Powichrowski (at para. 69):

While it may be that the defendant, having explored every avenue, will be unable to meet the requirements of the section and rebut the presumption, that is what often happens when a defendant is faced with credible and reliable evidence against him.

[135] It is therefore my conclusion that the lack of maintenance of this approved instrument does not raise a doubt in my mind about its reliable functioning or its proper use.

(b) The Alcohol Standard Solution

[136] I accept the evidence of Constable Zajac, the qualified breath technician, that when he originally warmed up the Intoxilyzer 8000C at the Ontario Provincial Police detachment at about 3:38 p.m., the instrument told him that the standard solution had expired. The Calwave lot number for the solution that had expired in the simulator was #20709. I accept and find as a fact that Constable Zajac changed the solution and added Calwave Solution lot #20693. Then he had to empty the newly added solution, dismantle the instrument, and transport it to Hotel-Dieu Grace Hospital where the tests were ultimately done. I accept that the instrument was safely transported in a solution-free condition. Clearly, we know that Zajac added solution when readying the machine at the hospital. The report generated by the Intoxilyzer indicates that, in fact, the solution was last changed at 4:53 p.m., consistent with the Hospital preparation.

[137] It is here that Constable Zajac, as the qualified breath technician, made a mistake. He either forgot to input the new lot number into the instrument and it defaulted to the old number or he unwittingly inputted the old number again. I suppose there is a third possibility and that is, although not intending to do so, he took a bottle of the old lot numbered solution 20709 and inputted that number because it was the one he was using. What I accept from the officer, and find as a fact, is that he changed the solution.

[138] The Intoxilyzer 8000C, as evidenced by the record, performed its self-diagnostic tests, received readings and produced results. Most importantly, when considering the solution, the instrument passed the external calibration check. It does not matter to the resolution of this issue which of the two noted lot numbers the technician placed in the simulator. I have evidence from Jean-Paul Palmentier, as well as certificates of analyst, indicating both noted lot numbers were unexpired and suitable for use on December 31, 2011. It was only the portion of lot #20709 that originally resided in the simulator that had expired (as indicated by the instrument) not the Calwave lot number itself.

[139] I find the alcohol test solution confusion did not effect the reliability of the instrument at the time in question and, as Palmentier put it, “this clerical error has no impact on the accuracy and reliability of the tests conducted in this case”.

(c) The Consumption Evidence

[140] As set out above, I have the evidence of both Cole Rickett and Randy Montgomery regarding the time they spent at Boston Pizza from 12:30 p.m. to 2:15 or 2:30 p.m., depending on which version is considered.

[141] Randy Montgomery is a friend of Rickett and so I must consider the possibility of bias. I found Montgomery’s evidence to be straight-forward and credible. His explanation for his departure and the timing and payment of the bill makes sense to me. I accept as well his evidence about the sequence of events and the timing of leaving. His evidence, however, calls into question whether their last drink could have been within 15 minutes of the accident as claimed by Cole Rickett. Montgomery’s evidence, however, can only confirm Rickett’s consumption while they were together.

[142] There are significant portions of Cole Rickett’s evidence that I reject. While the number of beers he consumed with Montgomery may have come into focus very quickly for him after the accident, I refuse to accept that he can indicate a point on the glass that accurately pinpoints the volume of each of his full beers. He suggests an exact recollection of the cash and denominations he possessed and the balance he retained after payment but it does not accord with the money he had at the time of his arrest.

[143] Upon arrest he had two beer bottle caps in his pants pocket. His explanation was that they were still there from the day before. His pickup truck had empty beer bottles in the back, an empty bottle was found on the road, and there was an empty beer can on the floor of his truck.

[144] The caps in his pocket, I believe, are significant. So, too, I believe, are the comments I accept he made to Constable Whitelaw, that is, he had consumed two beers and then later he stated four beers at Boston Pizza. I do not accept that Cole Rickett’s only consumption of alcohol before this accident was what he drank with Randy Montgomery.

[145] While it is open to me in these circumstances to base an acquittal on the consumption evidence coupled with the report of the defence toxicologist Dr. Ward, I reject Rickett’s evidence regarding the amount he had to drink and, as such, that defence must fail.

[146] In coming to that conclusion I have considered as well the adoption by the Supreme Court of Canada in St-Onge Lamoureux, at para. 72, of the result of studies indicating the unreliability of the testimony of accused persons about their alcohol consumption.

[147] Constable Whitelaw had Rickett step on a scale at the Hospital and found he weighed 146 lbs. Cole Rickett is adamant he weighed within 5 lbs of 185 lbs, which would lower his calculated BAC. Palmentier’s evidence is that the difference in weight might amount to an adjustment of about one-half a beer and so the effect is minimal. In any event, since I reject the defence consumption evidence the difference does not reduce the BAC calculated by Palmentier in any significant way.

[148] Based on my reasons set out above, I make a finding that Cole Rickett had a BAC in excess of 80 mg in 100 ml of blood at the time of this collision. I accept the evidence of Jean-Paul Palmentier that his BAC would have been between 160 and 205 mg/100 ml at 2:33 p.m. and Cole Rickett will have the benefit of the lowest possible reading or 160 mg/100 ml of blood.

[149] In coming to my conclusion regarding impairment and BAC, I have considered all the evidence available to me in this trial, none of which, in my view, has raised a reasonable doubt. Specifically, while I have segregated the defence challenges to the breath readings and rejected them one at a time, I have considered whether the totality of that evidence and those arguments raise a reasonable doubt. They do not.

Issue 3 – Causation

[150] Having concluded that Cole Rickett’s driving was impaired by alcohol at the time of the collision and that he had 160 mg of alcohol in 100 ml of blood, I must now move forward to consider the issue of causation; that is, did Rickett’s impairment and BAC cause the death and injuries which resulted from this accident?

[151] In describing the intricacies of the legal test of causation, I can do no better than borrow the explanation of Watt J. in R. v. Kippax, 2011 ONCA 766, 286 O.A.C. 144, at paras. 21-24 and 26:

To determine whether a person can be held responsible for causing a particular result, in this case death or bodily harm, we must determine whether the person caused that result not only in fact but also in law: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 44.

Factual causation involves an inquiry about how the victim died or suffered bodily harm, in a medical, mechanical or physical sense, and an accused’s contribution to that result: Nette, at para. 44.

Factual causation involves a determination of whether A caused B. The answer to the question of whether A caused B is resolved in a criminal case by the evidence of witnesses, those who testify about facts and others who offer relevant opinions: R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, at 518. The factual determination of whether A caused B has nothing to do with intention, foresight or risk: Smithers, at p. 518.

To prove factual causation, the Crown does not have to prove that an accused’s conduct was either the direct or predominant contributing cause of the prohibited consequence, whether death or bodily harm. It is no defence for an accused to say that the conduct of another was a greater or more substantial cause of the death or injuries. The Crown need only prove that an accused’s conduct was a significant contributing cause of the death or injuries or, said another way, that the accused’s conduct was “at least a contributing cause … outside the de minimis range”: Smithers, at p. 519; Nette, at paras. 70-71; and R. v. Hughes, 2011 BCCA 220, 305 B.C.A.C. 112, at paras. 56 and 64.

Legal causation, on the other hand, has to do with whether an accused should be held responsible in law for a prohibited consequence of his or her conduct, for example, death or bodily harm: Nette, at para. 45. In legal causation, the inquiry is directed at the question of whether an accused should be held criminally responsible for the consequences that occurred: Nette, at para. 45; R. v. Shilon (2006), 2006 CanLII 41280 (ON CA), 240 C.C.C. (3d) 401 (Ont. C.A.), at para. 32.

[152] To come to a conclusion on factual causation I must review all the dynamics of the accident. It is not enough for me to accept the opinion of the accident reconstructionist, Constable Bortolon, that the Dutta vehicle caused the accident. My analysis is not limited to the most significant cause: see R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 20. However, neither is an impaired driver in the vicinity without anything more enough to establish causation: see R. v. Ewert (1989), 1989 ABCA 287, 100 A.R. 118, 18 M.V.R. (2d) 55 (ABCA), at p. 60.

[153] In these circumstances, I have considered the speed of Cole Rickett. He says 75-80 km/hr. Bortolon’s calculation suggests 86 km/hr. It is an 80 km/hr. zone. I have considered Bortolon’s finding that Suman Dutta crossed Walker Road at 14 km/hr. I have considered the consensus of opinion that this was a dangerous intersection where accidents were numerous. It had an oversized stop sign and a flashing red light directing Suman Dutta and a flashing amber light for Rickett.

[154] Cole Rickett knew the intersection well. Suman Dutta did not. Mr. Dutta chose to stop at the stop sign, well back from the intersection where his view of the path of the Rickett vehicle was obstructed by signs. At that location, Rickett’s view of him was limited as well.

[155] Cole Rickett never saw the Dutta vehicle as it approached the stop sign or as it made its way into the intersection. Importantly, Suman Dutta was unaware of the presence of Rickett’s pickup truck until the time of the collision.

[156] Rickett has always stated, “I couldn’t do anything. They pulled out right in front of me.” There was no braking or turning away.

[157] It is attractive to reason that Rickett would have been able to do something if not impaired by alcohol; perhaps swerve, or at least soften the impact by braking. I have no evidentiary basis to conclude a beneficial result from these actions, even if possible.

[158] I fall back then on the findings of the Crown’s own expert:

The driver of the Acura stopped his vehicle at the posted stop sign as required. The driver of the Acura then proceeded westbound into the intersection and crossed into the path of the southbound Chevrolet and the collision resulted. There is no evidence to suggest that excessive speed by the Chevrolet was a factor in this collision.

That being said the driver of the Chevrolet did not have enough time to perceive, react, and stop his vehicle prior to the area of impact. Even if travelling at the posted speed limit of 80 km/h and perceiving and reacting within a normal time of 1.5 seconds the collision could not be avoided.

It was suspected that driver error on the part of the operator of the Acura caused the collision with the Chevrolet.

If the operator of the Acura had ensured that there was no oncoming traffic on the through highway before proceeding into the intersection this collision would not have occurred.

[159] The Crown has not established factual causation. I cannot find that Cole Rickett’s impairment by alcohol and his blood alcohol level of 160 mg/100 ml of blood was a significant contributory cause of death to Carolyn Dutta or to the bodily harm of the passengers.

Conclusion

[160] In conclusion there will be findings of guilt on counts 5 and 10 – those being impaired operation and driving with over 80 mg of alcohol in 100 ml of blood. I will enter a conviction on count 5 and stay count 10 as it is legally inappropriate to convict of both: see R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524.

[161] I will enter acquittals on counts 1 – 4 and 6 – 9.

Original signed “Justice Thomas”

Bruce Thomas

Justice

Delivered Orally: March 27, 2015