R. v. Phan, 2015 ONSC 2088

CITATION: R. v. Phan, 2015 ONSC 2088

DATE: 20150402

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TO HA PHAN

COUNSEL:

Helen Song, for the Crown

Raymond Wong and John Kaldas, for Mr. Phan

HEARD: January 12, 13, 14, 19, 20, 21, 22, 23, 28, 29, 30, February 2 and 3, 2015

REASONS FOR JUDGMENT

trotter j.

INTRODUCTION

[1] Candice Williams was enjoying a night out with some friends from work. She became very intoxicated and her friends sent her home in a taxi. As the taxi travelled along Highway 401 in Toronto, Ms. Williams and the driver got into a dispute. Even though there was an exit less than a minute away, the driver pulled onto the shoulder of the highway, got out, and called 911. Ms. Williams left the car and walked away.

[2] The taxi driver soon drove off, abandoning his vulnerable passenger on the side of the 401. Moments later, Ms. Williams was standing on the driven portion of the highway, trying to hitch a ride. She was hit by a van. Mr. Phan was driving that van. He had been drinking.

[3] As a result of this chain of events, Mr. Phan is charged with “over 80” causing death (s. 255(3.1)) (Count 1) and impaired driving causing death (Criminal Code, s. 255(3)) (Count 2). Mr. Phan’s guilt depends on whether the Crown is able to prove that Mr. Phan: (1) was impaired or “over 80”; (2) he actually caused Ms. Williams’ death (factual causation); and (3) his impairment and/or driving with an elevated blood-alcohol level caused the collision (legal causation).

SUMMARY OF THE FACTS

(a) The Office Party

[4] Ms. Williams, who was 34, worked at a dental office. On December 2, 2011, she attended her office party at The Keg restaurant at Yonge Street and Eglinton Avenue, in Toronto. Ms. Williams met up with one of her colleagues, Kelly Rapantzikos (“Kelly”), earlier in the day. They had a drink and arrived at The Keg at 6:30 p.m.

[5] There were about 12 guests at the party. There is no accurate account of what everyone drank at the party, which ended 6 hours later. Kelly said Ms. Williams consumed at least 3 martinis. But it is clear that she drank much more. When they went into the bathroom, just before leaving the restaurant, Kelly described Ms. Williams as being “a little wobbly.” However, she insisted that Ms. Williams did not look drunk, only a “little tipsy” and “giggly.”

[6] Irene Rapantzikos (“Irene”), Kelly’s sister, was also at the party. She used her iPhone to take a video of some of the guests. Ms. Williams was in this short clip. I am unable to draw any conclusions about her state of sobriety from this video, which was taken 10:54 p.m., well before the party ended. However, as the evening progressed, Ms. Williams’ colleagues became concerned about how she would get home. She lived in Mississauga, a great distance from the restaurant. Ms. Williams wanted to take the subway, but her colleagues thought this was a bad idea. One of them thought she might fall onto the tracks. Someone called Ms. Williams’ fiancé. He suggested that they put Ms. Williams in a taxi.

[7] When they left a restaurant at about 12:40 a.m., Ms. Williams was walking in between Kelly and Irene, arm-in-arm. There were differing accounts of why they walked in this manner. Kelly and Irene suggested that they always walked this way. However, in a previous statement, Irene had told the police that Ms. Williams could not stand on her own. In her evidence at trial, Irene said that Ms. Williams could not walk a straight line and that she staggered a little. The sisters agreed that Ms. Williams was able to retrieve money from her wallet. However, they disagreed about whether she was able to tell the taxi driver her address and her fiancé’s phone number, or whether one of them had to assist.

[8] The evidence also diverged on whether Ms. Williams needed help getting into the taxi. Once inside the taxi, both sisters heard her make an offensive racial remark about the driver. Both said that the remark was completely out of character for Ms. Williams. Kelly told the driver that Ms. Williams was drunk and to ignore what she had said, and what she might say during the ride home.

[9] I find that Ms. Williams was very intoxicated when she got into the taxi. This affected her balance and coordination. This conclusion is supported by the testimony of Ms. Betty Chow, a toxicologist from the Centre of Forensic Sciences (“CFS”). She testified that Ms. Williams’ blood-alcohol level was 181 mgs of alcohol in 100 ml of blood at the time she died. Kelly and Irene downplayed Ms. Williams’ intoxication, perhaps out of a sense of loyalty to their friend.

[10] I do not make this finding about Ms. Williams to be critical. She was enjoying herself with friends, as she was perfectly entitled to do. Her friends acted reasonably by putting her in a taxi. However, Ms. Williams’ intoxicated state is relevant to what happened to her later, on the 401.

(b) In the Taxi

[11] Davinder Singh Sandu said that Ms. Williams got into his taxi at about 12:30 a.m. She was very drunk. Her friends had been holding her up by her arms and had “thrown” her into the taxi. He said that her friends asked him to take her to Mississauga, but provided him with no address or phone number. This part of his evidence makes no sense. I accept the evidence of Kelly and Irene on this issue that he was provided with these coordinates.

[12] Mr. Sandu proceeded to the 401 and drove westbound. He said that, for the first part of the journey, Ms. Williams said nothing. This accords with the on-board camera that captured still images every couple of seconds. Ms. Williams appeared to fall asleep and wake up a number of times. When the taxi reached the 401, Mr. Sandu said that she started screaming, “Stop right now, I have to pee.” She said this three or four times. Ms. Williams’ tone was very aggressive and she put her fist in the air. Mr. Sandu became scared. He said that she moved forward a couple of times as if she was going to hit him, although this is not borne out by the photos from inside the taxi.[^1] He said that Ms. Williams put her legs between the front seats, attempting to push at his gearshift.

[13] Mr. Sandu said he could no longer drive in these conditions. He drove onto the right-hand shoulder of the 401 and got out of his car. As he was leaving, he apparently said: “Just stay here. I am calling 911. Don’t get out.” He said he locked the taxi and called 911. Mr. Sandu did call 911, seeking assistance. The recording was played in court. In the meantime, Ms. Williams got out of the taxi and started to walk away, in an eastbound direction. She returned to the taxi to retrieve something. Mr. Sandu then watched Ms. Williams stumble along the shoulder of the highway. Minutes later she was dead.

[14] Mr. Sandu testified that he attempted to get Ms. Williams to come back to the taxi. He called out to her, but she could not hear him. I do not accept this evidence. Mr. Sandu said he waited “at least half an hour” before he drove away. He revised this estimation a number of times in his evidence. In fact, Mr. Sandu did not remain at the side of the highway for anywhere near that length of time. The time stamps from the on-board camera show that, from the time he stopped the taxi until he abandoned Ms. Williams on the side of the road, just over 4 minutes had elapsed, the time that it took him to complete the 911 call. It would have taken less than a minute to get to the Dixon Road/Martin Grove Road exit, where Mr. Sandu eventually drove his taxi.

(c) Ms. Williams Tries to Get a Ride

[15] As she walked along the shoulder, Ms. Williams was wearing a long white or beige coat. She was 5’8” and weighed about 180 pounds. She had long blonde hair, extending beyond her shoulders. Ms. Williams was wearing boots with 3-inch heels. A couple of witnesses saw Ms. Williams standing in various lanes of the highway.

[16] Daljit Cheema, a limousine driver, was driving westbound on the 401 that night. He said the weather was clear and the road was dry, with relatively light traffic. He was travelling between 100 to 110 km/h.

[17] There are 6 lanes of traffic on the 401 where Ms. Williams was walking along the shoulder. Lane 6 is closest to the shoulder. Mr. Cheema was in Lane 2. About 50 metres ahead, and off to the right, he saw Ms. Williams standing in either Lane 4 or 5, waving her right hand as if she was trying to stop a car. He had no trouble seeing Ms. Williams and could tell that she was a Caucasian woman, wearing a brown jacket or coat. Mr. Cheema said that Ms. Williams did not appear to have any trouble standing, nor did she appear off-balance. Mr. Cheema immediately pulled onto the right shoulder, coming to a stop about 40 metres past Ms. Williams. Up ahead he saw a taxi merge into traffic and drive away.

[18] Mr. Cheema, the quintessential Good Samaritan, tried to help Ms. Williams, who was obviously in danger. But it was too late. Almost immediately after Mr. Cheema stopped, he heard a loud bang and then saw a transport truck drive over Ms. Williams’ body in Lane 2, followed by other vehicles. Mr. Cheema also saw a van about 40 metres behind his limousine. He said that the van was in Lane 6, although at the preliminary inquiry he said it was in Lane 5.

[19] There were a few other wrinkles in Mr. Cheema’s evidence. In his account of the collision scene, he described (and drew on a diagram) a concrete barrier extending at a perpendicular angle from the right side of the road. There was construction east of where he observed Ms. Williams, but there was nothing that resembled the structure that Mr. Cheema described. Secondly, Mr. Cheema said Ms. Williams was wearing a brown coat. It was white.

[20] Aman Banga also saw Ms. Williams on the side of the road. He was driving home from work, just after 1 a.m. He said that traffic was fairly light. Mr. Banga mentioned construction on the 401, to the east of Ms. Williams. However, he said that all lanes were operational where Ms. Williams was standing. Mr. Banga thought there were only 5 lanes of traffic at this location. There were 6.

[21] As he approached the area, Mr. Banga was travelling 100 km/h in Lane 3. He said that he could see a taxi merging into traffic ahead. From about 15 to 20 car lengths, he saw Ms. Williams walking from Lane 5 to Lane 4. Mr. Banga said Ms. Williams was turning to face oncoming traffic as she moved between lanes. She had her thumb out. He did not observe her to be unsteady on her feet.

[22] Mr. Banga was able to provide a detailed description of Ms. Williams. He said she was dressed nicely, wearing an off-white coat that was down to her knees. He said Ms. Williams was “pretty,” perhaps in her 30’s, with blonde, shoulder-length hair. Mr. Banga did not attempt any evasive action as he approached Ms. Williams, although he did take his foot off of the accelerator. Mr. Banga said that, if she had moved into his lane, he might have been able to stop or maneuver around her. Still, Mr. Banga agreed that it was “a very dangerous situation.”

[23] Audley Crooks, a defence witness, was also driving westbound on the 401. Mr. Crooks thought there were 4 or 5 westbound lanes on the 401 at the location. It was not until he was shown a diagram that he acknowledged there are 6. Mr. Crooks was in Lane 2. He saw the brake lights of a vehicle ahead of him. Mr. Crooks thought that this situation was odd and feared that the vehicle had malfunctioned. Mr. Crooks did not think he could move around the vehicle safely, so he decided to stop behind it. It took him about 5 seconds to stop. He did not see anything cut the van off, but he acknowledged that the van could have been stationary from the moment that he saw the brake lights. Within 10 seconds of stopping, the car ahead of him, a green van, pulled over to the right side of the road. As the van moved, Mr. Crooks saw Ms. Williams lying, motionless, on the road. He described her as attractive, with blonde or light brown hair. He was stationary at the time.

[24] After his initial shock, Mr. Crooks pulled to the right-hand shoulder. He called 911. While he was speaking to the dispatcher, he saw Ms. Williams being run over. He told the operator that she was “gone” and then left the scene. Mr. Crooks testified that, as he drove away, he passed the van to the right, using the shoulder. This placed the van in Lane 6. Interestingly, Mr. Crooks saw a vehicle stopped on the left-hand shoulder and a man pacing back and forth, while speaking on his phone. Mr. Banga did not see anyone pulled over to the left. Mr. Cheema said it was “possible.”

[25] The Crown challenged Mr. Crooks’ credibility by confronting him with his serious driving record.[^2] He also has a substantial criminal record. When he testified before me, Mr. Crooks was serving an intermittent sentence. Nevertheless, I found Mr. Crooks to be a straightforward and articulate witness. I accept his evidence, which was not undermined by cross-examination.

[26] Messrs. Cheema, Banga and Crooks give divergent accounts of that night. Allowing for the fact that they came upon the scene at different times, but probably within seconds of each other, there are discrepancies about the lanes in which Ms. Williams was standing. None of these men observed Mr. Phan’s driving conduct, nor did they see the van hit Ms. Williams. As discussed below, other evidence proves that Mr. Phan’s van was the first vehicle to hit her.

(d) Mr. Phan’s Sobriety and Blood-Alcohol Concentration

[27] There was little observational evidence about Mr. Phan’s state of sobriety. The first people on the scene were the EMS workers, Mike Addison and Douglas Radford. Mr. Addison found Mr. Phan sitting in the driver’s seat of the van. The entire windshield had been broken. Mr. Phan had blood on his face, hands and clothing. He was covered in glass. Mr. Phan was responsive. Mr. Addison assisted Mr. Phan out of the van and walked with him to the ambulance. Mr. Phan stumbled slightly, but Mr. Addison could not say why. Mr. Phan was able to walk without assistance. Mr. Addison noticed a slight smell of alcohol on Mr. Phan’s breath. Mr. Radford also smelled alcohol, but he was less precise about its source.

[28] One of the first officers on the scene, P.C. John DeSouza, saw Mr. Phan seated in the ambulance. Mr. Phan had blood on his nose and lips. He also had bloodshot eyes and looked dazed. P.C. DeSouza noticed the smell of alcohol, but there was no slurred speech or incoherence. Mr. Phan had no problem walking.

[29] When Mr. Phan was taken to the hospital, P.C. Fernando Ham-Chi noticed only a mild smell of alcohol. He detected no signs of impairment, but then Mr. Phan was confined to a stretcher. Similarly, the officer who took the breath samples from Mr. Phan just after 4:00 a.m. did not detect any impairment on Mr. Phan’s part, even though he could smell alcohol.

[30] The most damaging evidence concerning Mr. Phan’s potential impairment came from Ms. Betty Chow. Her evidence is discussed below.

(e) The Breathalyzer Testing and Blood Samples

[31] Breath and blood samples were taken from Mr. Phan while he was at the hospital. At 4:16 and 4:47 a.m., Mr. Phan produced breathalyzer readings of 118 and 116 mgs of alcohol in 100 ml of blood.

[32] As I have already noted, Mr. Phan was confined to a stretcher the entire time. The only incident of note was when the breathalyzer registered an “Ambient Fail” message between the first and second samples being obtained. This was an indication that the instrument detected ethanol alcohol and/or other interfering substances in the room air. P.C. Hermano Clerigo was concerned that this occurred because Mr. Phan was too close to the instrument. P.C. Clerigo responded by moving the instrument away from Mr. Phan. There were no problems with the testing after he took this action.

[33] Ms. Chow testified that P.C. Clerigo’s response was adequate in the circumstances. She said it was appropriate to relocate the subject and/or ventilate the room. She was confronted with the fact that CFS recommends that both steps be taken. Ms. Chow said that the Centre’s policy is just a recommendation. In any event, she concluded that the absence of this same message during the subsequent test was proof that the instrument worked properly.

[34] In terms of blood, P.C. Ham Chi saw a nurse draw blood from Mr. Phan at 3:11 a.m. P.C. DeSouza first said that he had “found out” that blood had been taken from Mr. Phan. At another point in his testimony he suggested he was present when it was taken. In any event, he watched as Mr. Phan’s blood was sent to the hospital laboratory by means of a chute. At 3:21 a.m., P.C. DeSouza went to the lab to confirm the vials had been received. This was confirmed by looking at Mr. Phan’s name that was placed on the vials. P.C. DeSouza then placed separate seals on the two vials.[^3] The vials were placed in a “ziplocked” bag with Mr. Phan’s name on it. The bag was placed in a fridge drawer marked “Police/Court.”

[35] On January 16, 2012, P.C. DeSouza returned to the hospital to make sure Mr. Phan’s blood was still in the fridge. He saw that it is was in the same drawer where it had been left. P.C. DeSouza obtained a search warrant for the blood and for Mr. Phan’s hospital records. The warrant was executed on January 25, 2012 when P.C. DeSouza seized the records and the blood. He took the blood to the CFS where the vials were re-labeled and the blood was analyzed.

(f) Expert Evidence in Toxicology

[36] Ms. Chow was qualified as an expert in forensic toxicology. Based on the lab results of the blood taken from Mr. Phan at the hospital, she gave the opinion that at 12:45 a.m. his blood-alcohol concentration would have between 173 and 218 mgs of alcohol in 100 ml of blood. At 1:45 a.m., it would have been 161 to 207 mgs of alcohol in 100 ml of blood. Based on a sample of Mr. Phan’s blood that she analyzed herself months later, Ms. Chow projected a 12:45 a.m. blood-alcohol concentration between 162 to 207 mgs of alcohol in 100 ml of blood.[^4] Lastly, based on the breathalyzer readings, Ms. Chow estimated a blood-alcohol range of 120 to 180 mgs of alcohol in 100 ml of blood at the time of the collision.[^5]

[37] Ms. Chow was asked to estimate the amount of alcohol that a person would need to consume to produce the projected readings at the time of the collision. I do not plan to review this evidence in detail other than to observe that it contradicted Mr. Phan’s assertions (discussed below) that he consumed only 2-3 beers. The projections suggest much greater consumption.

[38] Ms. Chow also gave evidence on the effect of alcohol on the central nervous system. Generally, alcohol is a depressant that decreases brain functioning. Ms. Chow drew the important distinction between intoxication (the outward manifestations of consumption) and impairment (the ability to perform certain tasks). Someone may not show signs of intoxication, but may well be impaired in the performance of complex tasks, such as driving. Alcohol may compromise reaction time and perceptual abilities to judge speed and distances.

[39] Ms. Chow testified that impairment in terms of driving becomes significant at 50 mgs of alcohol per 100 ml of blood. In one of her Reports prepared for this case, one dealing with the projected range based on the breathalyzer readings (i.e., 120 to 180 mgs in 100 ml of blood), Ms. Chow said:

Under controlled experimental conditions, impairment of divided attention tasks has been reported at BACs as low as 15 mg/100 ml. Nevertheless, based on a critical review of the relevant scientific literature (laboratory, closed-course driving, crash risk assessment) it is my opinion that impairment with respect to driving becomes significant at a BAC of 50 mg/100 ml and increases from then onward. Whether impairment is apparent depends upon the complexity of the driving task. For example, the impairing effect of alcohol is marked in driving situations that are unpredictable and that require a rapid and appropriate response. Impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance.

In my scientific opinion, an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range.

Ms. Chow provided the same opinion in a separate Report, based on the analysis of blood samples. While allowing that not everyone is affected to the same degree by the consumption of alcohol, Ms. Chow adopted this opinion during her testimony.

(g) Accident Reconstruction

[40] Sgt. Peter Shouldice of the O.P.P. gave opinion evidence on accident reconstruction. His testimony was based on a comprehensive Collision Reconstruction Report (“the Report”), prepared close in time to the incident. When the trial started, the Crown advised that the expert evidence would basically establish that Ms. Williams was upright when she was hit by the van. As the trial progressed, the Crown wished to broaden the scope of this opinion evidence. I ordered the preparation of a Supplementary Report in order to provide the defence with proper notice and an opportunity to meaningfully respond.

[41] Sgt. Shouldice did testify that Ms. Williams was standing when she was struck, as evidenced by the extensive damage to the front windshield, bumper and hood of the van. Also, several strands of hair were found embedded in the shattered windshield. These hairs looked as though they came from Ms. Williams, but they were never tested. Sgt. Shouldice testified that similar hairs were found tangled in the roof rack assembly towards the rear of the van. From this he inferred that Ms. Williams had been vaulted over the van and her head came into contact with the assembly.[^6] He said that this was indicative of being struck at high speed, though he was unable to determine the speed of the van upon impact. Sgt. Shouldice also said there was no evidence of lateral movement on the part of Ms. Williams when she came into contact with the van. From this, the Crown submitted that she must have been standing still at the time.

[42] Sgt. Shouldice was unable to determine the exact point of impact, but said that Ms. Williams was standing between Lanes 5 and 6. In his Report, Sgt. Shouldice referenced Mr. Cheema’s evidence and then provided the following unequivocal conclusion: “Williams was standing on the dashed line dividing westbound lanes #5 and #6 when she was struck…” In his Supplementary Report, Sgt. Shouldice provided a more detailed conclusion:

Although the exact area of impact was not identified on the roadway there were some clues that when corroborated with the independent witnesses assist me to identify the most likely location of the pedestrian “standing on the dashed line diving westbound lanes #5 and #6” (page 18 of my Collision Reconstruction Report). [emphasis added]

[43] During his testimony, Sgt. Shouldice referenced Mr. Cheema and Mr. Sandu as the “independent witnesses.” I have serious concerns about this aspect of the evidence, which I below.

[44] Sgt. Shouldice was challenged in cross-examination on a number of points. It was suggested to him that his findings were not helpful on the issue of lateral movement because the damage to the van could have been caused in a split second. He agreed that, if Ms. Williams were stationary at the moment she was hit, there would be no physical indication of lateral movement, nor any evidence of her movement in the moments before she was hit.

[45] Sgt. Shouldice was asked to estimate how quickly a vehicle to could stop on the 401 at various speeds. Taking Mr. Cheema’s estimation of seeing Ms. Williams at a distance of 40 to 50 metres while travelling at 100 km/h, Sgt. Shouldice said it would take a minimum of 85 to 102 metres to come to a full stop (accounting for time to react). A similar calculation was attempted in response to Mr. Banga’s evidence but it was frustrated by the fact that he refused to describe his distance from Ms. Williams in accepted measurable units, preferring to refer to car lengths instead.

[46] Sgt. Shouldice emphatically defended his conclusion that Ms. Williams was vaulted over the top of the van. Great reliance was placed on the hair on the roof rack. However, the item was never tested to determine whether it was human hair, nor was it scientifically compared to the hair found hanging from the smashed windshield. There was no other indication that Ms. Williams had come into contact with the assembly or any other part of the van’s roof.

[47] I have difficulty with Sgt. Shouldice’s conclusion that the point of impact was between Lanes 5 and 6. Sgt. Shouldice said that this conclusion was in accord with the evidence of Mr. Sandu and Mr. Cheema. I do not understand how their evidence supports this conclusion. Mr. Sandu’s evidence was worthless on this point, given that he had driven away. Mr. Cheema said he saw Ms. Williams standing between Lanes 4 and 5, not between Lanes 5 and 6.

[48] More importantly, Sgt. Shouldice ignored the statements of Mr. Banga and Mr. Crooks, who both located Ms. Williams much further away from the right shoulder. While Sgt. Shouldice may have discounted this evidence, he should have referred to it in his Reports. This omission leaves me with the impression that Sgt. Shouldice reached a conclusion and then disregarded evidence that pointed in a different direction. His conclusion is also undermined by his own observation that most of Ms. Williams’ remains were located “primarily in lane #3.”

[49] For these reasons, I place limited weight on Sgt. Shouldice’s conclusion about the point of impact. I am also unsure about his evidence that Ms. Williams was vaulted over the van. The evidence of Mr. Crooks suggests the opposite. While Mr. Crooks came to court with some shortcomings as a witness, I accept his evidence about what he saw that night. This was consistent with forward projection movement, indicative of reduced speed, based on an attempt to stop.

(h) Mr. Phan’s Statements

[50] Finally, I refer to statements made by Mr. Phan in the aftermath of this tragic incident.[^7] After providing two breath samples, Mr. Phan advised Officer Clerigo that he consumed 2 beers after finishing work.

[51] Later that morning, Mr. Phan made a video statement at the police station. He admitted consuming 2 to 3 beers before driving home. Mr. Phan provided an explanation of what happened that night. Because of a language barrier, it is difficult to completely understand Mr. Phan. However, through words and gestures, he said that someone cut him off. This caused him to “cut” and then he hit “the person.” Mr. Phan did not see “the person” until it was too late.

ANALYSIS

(a) Introduction

[52] As mentioned at the beginning of these Reasons, causation is a critical issue in this case. However, as a first step, the Crown must prove beyond a reasonable doubt that Mr. Phan’s blood-alcohol level was “over 80” and that he was impaired.

(b) Mr. Phan Was “Over 80”

[53] The Crown attempted to establish Mr. Phan’s blood-alcohol concentration by relying on the blood taken from Mr. Phan at the hospital and his breath sample results, both in conjunction with the expert evidence of Ms. Chow.

[54] The Crown has established that Mr. Phan was “over 80” based on the breath samples. I am satisfied that P.C. Clerigo operated the approved instrument properly and that he was able to obtain two reliable samples. The defence challenges the accuracy of the breath samples based on: (1) the failure to check the surrounding area in the hospital for interfering signals (from hospital equipment) and substances (i.e., rubbing alcohol, hand sanitizers and floor cleaners); (2) Mr. Phan being on his back in the hours leading up to and when the samples were taken; and (3) the failure of the P.C. Clerigo to properly respond to the “Ambient Fail” signal before taking the second sample.

[55] None of these factors give rise to a reasonable doubt. I find that the first two arguments are based on nothing more than speculation and were adequately answered in the evidence of P.C. Clerigo and Ms. Chow. I reach the same conclusion about the “Ambient Fail” issue. The instrument detected something in the air prior to the second sample being taken. However, after the actions taken by P.C. Clerigo, the issue was resolved. I accept Ms. Chow’s evidence that, while the CFS recommends a two-pronged response, the actions of P.C. Clerigo resulted in the proper operation of the instrument, leaving no doubt about the accuracy of the results. The convergence of the two readings (118 and 116 mgs in 100 ml) suggests that the instrument was not affected by the intervening “Ambient Fail” message.

[56] Based on the readings from the breathalyzer, Ms. Chow calculated that, at the time of the collision, Mr. Phan’s blood-alcohol concentration was between 120 to 180 mgs of alcohol in 100 ml of blood. I accept the premises of Ms. Chow’s analysis and have no reason to doubt its accuracy. The fact that there were few observable signs of impairment does not undermine the validity of these findings. In short, I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Phan’s blood-alcohol level was “over 80” at the time of the collision.

[57] The Crown also attempted to establish that Mr. Phan was “over 80” based an analysis of his blood. The Crown relies on an analysis of Mr. Phan’s blood that was conducted at the hospital, as referenced in his medical records. The Crown also relies upon an analysis of Mr. Phan’s blood that was performed at the CFS.

[58] This aspect of the case is more problematic. Even though I previously ruled that the taking, storage and seizure of Mr. Phan’s blood did not infringe Mr. Phan’s rights under s. 8 of the Charter, continuity remained a live issue at trial.

[59] I am unable to rely on the hospital records as a basis for proving Mr. Phan’s blood-alcohol concentration. The records are capable of proving that hospital personnel analyzed blood that it believed came from Mr. Phan and that it yielded certain results (from which Ms. Chow made her findings, as noted paragraph 36, above). However, nobody from the hospital testified that about the chain of custody of the blood that was analyzed. I am being asked to assume that the blood that was analyzed belonged to Mr. Phan. I have no information about how blood is handled and stored at the hospital. Without this link to Mr. Phan, the results that were generated are meaningless.

[60] The chain of custody of the blood that was analyzed at the CFS gives pause for concern, at least at the front end of the timeline. I accept that officers observed blood being taken from Mr. Phan. The blood vials were then placed in a chute that transferred them to the laboratory, where P.C. DeSouza attended shortly afterwards. It would have been ideal had the blood been walked down to the laboratory with the officer accompanying hospital personnel. However, the blood had not yet been seized and P.C. DeSouza had no authority to disrupt normal institutional procedures. Also, there were some discrepancies between the evidence of P.C. DeSouza, P.C. Ham-Chi and the hospital records in terms of the times at which certain tasks were performed. However, they do not cause me to doubt that the blood that was sent to the laboratory was drawn from Mr. Phan.

[61] Once P.C. DeSouza arrived at the laboratory, the blood was labeled and sealed as described above. There was an obvious problem with the labeling of the vials. However, on all of the evidence, I am satisfied that, despite a few imperfections, the blood that was stored in the hospital fridge and subsequently retrieved by P.C. DeSouza and delivered to the CFS was drawn from Mr. Phan. In other words, I am satisfied that the blood that was analyzed by Ms. Chow was blood that was drawn from Mr. Phan. Again, I accept Ms. Chow’s analysis of the blood and her projection that, at the time of the collision, Mr. Phan’s blood-alcohol concentration was between 162 to 207 mgs of alcohol in 100 ml of blood.

(c) Mr. Phan Was Impaired

[62] There was no evidence of Mr. Phan’s manner of driving. Moreover, those who dealt with him after the collision detected only a mild to moderate odour of alcohol coming from him. Apart from an unexplained stumble on the way to the ambulance, no one observed any indicia of intoxication or impairment. It is true that he had glassy and bloodshot eyes, but Mr. Phan was injured (though not seriously) and was upset about what had happened.

[63] The only evidence of impairment came from the expert evidence of Ms. Chow, based on Mr. Phan’s blood-alcohol concentration. As Ms. Chow stated in her opinion (at paragraph 39, above), based on the generally accepted body of scientific literature in this area, impairment (as distinct from intoxication) becomes quite apparent at blood-alcohol levels of 50 mgs or more. Based on her own projections of Mr. Phan’s blood-alcohol concentration at the time of the collision (based on both breath and blood samples), Mr. Phan’s ability to operate a motor vehicle would have been impaired at the time, even if he did not present as intoxicated. Taking the analysis of Mr. Phan’s blood, which provided a more accurate measure of blood-alcohol concentration, Mr. Phan’s projected range was 162 to 207 mgs of alcohol in 100 ml of blood.

[64] In appropriate circumstances, impairment may be proved through expert evidence based on breath or blood test results: see R. v. Letford (2000), 2000 CanLII 17024 (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.), at p. 230, R. v. Laprise (1996), 1996 CanLII 6000 (QC CA), 113 C.C.C. (3d) 87 (Que. C.A.), at pp. 92-93 and R. v. Hoffner (2004), 2005 CanLII 32924 (ON SC), 24 M.V.R. (5th) 280 (Ont. S.C.J.), at para. 66. That is, there is no rule that prevents a trier of fact from relying on this type of evidence alone to conclude beyond a reasonable doubt that an individual’s ability to operate a motor vehicle is impaired by alcohol. Moreover, the evidence need not prove profound or significant impairment. This element of the offence is satisfied if the evidence establishes any degree of impairment, from slight to great: see R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d (1994), 1994 CanLII 94 (SCC), 90 C.C.C. (3d) 160.

[65] Ms. Chow’s evidence proves that Mr. Phan’s blood-alcohol concentration was between 2 to 2.5 times the legal limit at the time of the collision. Based on Ms. Chow’s opinion evidence concerning the effects of alcohol on the human body, on this record, I am satisfied beyond a reasonable doubt that Mr. Phan’s ability to operate a motor vehicle was impaired by alcohol.

(d) Mr. Phan Was Not the Legal Cause of Ms. Williams’ Death

i. Introduction

[66] The most difficult aspect of this case relates to causation. Mr. Phan was instrumental in the death of Ms. Williams. But an inquiry into causation extends beyond mere instrumentality; it also engages considerations of blameworthiness. These two concepts are known as factual and legal causation.

[67] In R. v. Nette (2001), 2001 SCC 78, 158 C.C.C. (3d) 486 (S.C.C.), Arbour J. explained these interrelated concepts in the following passage (at p. 505):

In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law. Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation.

Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished: (citations omitted). In determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred. […]

In a given case, the jury does not engage in a two-part analysis of whether both factual and legal causation have been established. Rather, in the charge to the jury, the trial judge seeks to convey the requisite degree of factual and legal causation that must be found before the accused can be held criminal responsible for the victim’s death.

[68] The issue was addressed again in R. v. Maybin (2012), 2012 SCC 24, 283 C.C.C. (3d) 275 (S.C.C.). Referring to Nette, Karakatsanis J. described the differences between factual and legal causation in the following way (at pp. 281-282):

Writing for the majority, Arbour J. noted that causation in homicide cases involves two aspects: factual and legal causation. Factual causation is “an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result” (Nette, at para. 44). The trier of fact usually asks: “But for” the action(s) of the accused, would the death have occurred? Factual causation is therefore inclusive in scope.

Legal causation, however, is a narrowing concept, which funnels a wider range of factual causes into those which are sufficiently connected to a harm to warrant legal responsibility. [emphasis added]

See also Don Stuart, Canadian Criminal Law – A Treatise, 7th ed. (Toronto: Thomson Reuters, 2014), at pp. 142-170.

[69] The law recognizes, and as this case demonstrates, events or consequences may have more than one cause. In Smithers v. The Queen, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, the Supreme Court held that liability may attach when it is proved that the accused is a contributing cause “beyond the de minimis range.” The Court’s decisions in Nette and Maybin favour the use of more straightforward language – the Crown must prove that the accused was a “significant contributing cause” of the relevant consequence. This new formulation is meant to envelope both factual and legal causation: see R. v. Talbot (2007), 2007 ONCA 81, 217 C.C.C. (3d) 415 (Ont. C.A.), at p. 437.[^8]

ii. Impaired Driving Causing Death (s. 255(3))

[70] Mr. Phan is charged with impaired driving causing death under s. 255(3) of the Criminal Code. It must be proved that the impairment was a significant contributing cause of the death of Ms. Williams: see R. v. Maxie (2014), 2014 SKCA 103, 316 C.C.C. (3d) 396 (Sask. C.A.). I address this standard first, followed by an analysis of “over 80” causing death in s. 255(3.1), which is expressed in a slightly different way.

[71] In terms of factual causation, counsel for Mr. Phan argued that it has not been proved beyond a reasonable doubt that the collision with the van caused Ms. Williams’ death. I accept that it was not proved that being struck by the van immediately caused Ms. Williams’ death. There was no medical evidence on this issue. However, as Mr. Crooks observed, Ms. Williams lay motionless on the road as Mr. Phan moved his van towards the shoulder. As a matter of common sense, especially in light of the damage caused to the van by colliding with Ms. Williams, she in all likelihood suffered severe, if not fatal injuries upon impact. This, of course, falls short of proof beyond a reasonable doubt.

[72] But as the Maybin Court held, factual causation is an “inclusive” concept. I am satisfied that beyond a reasonable doubt that, but for the actions of Mr. Phan, Ms. Williams would not have been laying on the road and vulnerable to being run over by other vehicles. It might be said, that the “but for” test was not met in this case because it was inevitable that Ms. Williams would eventually be hit by another vehicle around the time she was struck by Mr. Phan. However, Mr. Phan did hit Ms. Williams when she was upright. I find that factual causation has been established.

[73] Legal causation is a more difficult matter. While factual causation seeks to determine what brought about an event or consequence in the physical world, legal causation focuses on whether the conduct that gave rise to that result is blameworthy. Again, the Crown is not required to prove that Mr. Phan was the only cause of Ms. Williams’ death. The question is whether Mr. Phan was blameworthy in Ms. Williams’ death, i.e. whether he was a significant contributing cause of her death: see Stuart, supra, at p. 157.

[74] The circumstances surrounding the incident require close examination. Arguably, there were a number of factors that led to Ms. Williams’ tragic death. Had Mr. Sandu not pulled over to the side of the highway and acted as he did, Ms. Williams would likely be alive today. Moreover, and I say so respectfully, Ms. Williams’ own actions contributed to what ultimately happened to her. All of the evidence suggests that she was very intoxicated and there was compelling evidence that she was unsteady on her feet. While I have significant problems with some of Mr. Sandu’s evidence, I accept his observations of Ms. Williams’ deportment and condition as she walked away, along the shoulder. This evidence is consistent with the views of her friends at The Keg. In her very compromised state, Ms. Williams was left to look after herself when she was realistically unable to do so. She walked onto live lanes of traffic on a busy highway. The fate that befell her was virtually inevitable.

[75] Unlike some other cases (see R. v. Junkert, (2010), 2010 ONCA 549, 259 C.C.C. (3d) 14 (Ont. C.A.), at pp. 18-19), the actual positioning of Ms. Williams on the 401 is relevant to the question of whether Mr. Phan’s impairment and/or blood-alcohol level caused her death. Mr. Cheema said she was in Lanes 4 and 5. Mr. Banga said she was in Lane 4. Mr. Crooks said she was in Lane 2. The totality of evidence leads me to conclude that Ms. Williams was in motion around the time that she was struck. Perhaps she was trying to reach the vehicle identified by Mr. Crooks on the left shoulder. Perhaps her movement was confused or purposeless. In any case, being in motion worsened the hazard she posed to motorists. Instead of being presented with a stationary object on the road, Mr. Phan and others were faced with a dynamic and unpredictable situation. The evidence did not shed any light on exactly what Mr. Phan saw or did not see in the moments leading up to the crash.

[76] In mentioning these factors, I do not attempt to attribute or apportion liability or blame as one might in a civil case. As Arbour J. held in R. v. Nette, supra, at 507: “The criminal law does not recognize contributory negligence, nor does it have any mechanism to apportion responsibility for the harm occasion by criminal conduct…” See also R. v. Trakas (2008), 2008 ONCA 410, 233 C.C.C. (3d) 172 (Ont. C.A.), at p. 191. However, these surrounding circumstances are key to determining whether Mr. Phan was a significant contributing cause of Ms. Williams’ death.

[77] One way of approaching this question is to ask whether the collision that killed Ms. Williams was avoidable. There are numerous decisions in which courts have concluded that, but for a person’s impairment, a collision that results in death or bodily harm was avoidable: see, for example, R. v. Hall (2004), 11 M.V.R. (5th) 188 (Ont. S.C.J.). In other circumstances, judges have found that there is no legal causation when an impaired driver is in an unavoidable collision. That is because the impairment is not a factor in bringing about the prohibited consequence(s). These cases sometimes involve pedestrians who act unpredictably or place themselves in harm’s way. Whether legal causation is established turns on the facts of each case.

[78] The following cases are illustrative of collisions where impaired drivers were found not to be the legal cause of the deaths they factually caused. In the older case of R. v. Marbus (1963), 1963 CanLII 1111 (ON CA), 39 C.R. 201 (Ont. C.A.), the accused was driving and saw the vehicle in front of him (which did not have working brake lights) slow down dramatically. Marbus swerved to the left to avoid colliding with the vehicle and killed someone in an oncoming car. The Court of Appeal recognized that the accused was faced with a choice of hitting the car in front of him, swerving to the left or to the right. In allowing the appeal from conviction, McLennan J.A. said at para 8: “But that instantaneous choice should not be judged only in the light of the results which occurred but due consideration should be given to the situation in which the appellant then found himself.”

[79] The facts in Marbus are very similar to Mr. Phan’s situation. He was presented with the same three-pronged decision (assuming that Ms. Williams was directly ahead of Mr. Phan in the moments before she was hit, which was unclear). But if Ms. Williams was directly ahead, should Mr. Phan have tried to stop, swerved to the left or swerved to the right? This is impossible to answer without knowing exactly what Mr. Phan was faced with that night. The Crown has failed to establish that Mr. Phan failed to take more effective evasive action because he had been drinking: see R. v. Cabral (2001), 9 M.V.R. (4th) 80 (Man. C.A.).

[80] In R. v. Petznick (1987), 45 M.V.R. 259 (Ont. Dist. Ct.), a group of boys stalled a van in the middle of a highway. The vehicle came to rest perpendicular to the direction of the road. Petznick swerved to the left of the van, at which point one of the boys ran out from behind the van, into the path of the moving vehicle. The boy was struck and killed. The trial judge, McDermid D.C.J., found that the unfortunate young victim had caused his own death by running into the path of Petznick’s vehicle, causing a hazard that was unavoidable for sober and impaired drivers alike.

[81] There are other, similar examples. In R. v. Hachey (1991), 31 M.V.R. (2d) 97 (Ont. Gen Div.), a case of impaired and dangerous driving causing death, Clarke J. found that the accused was not guilty of causing the death of an intoxicated man who was playing “chicken” at the side of the road and who jumped out in front the accused’s vehicle at the last minute. Similarly, in R. v. Horton (2003), 20 C.R. (6th) 161 (Sask. Q.B.), the accused was acquitted of impaired driving causing death after hitting an intoxicated jaywalker. There was no evidence of faulty driving on the part of the accused person and the deceased walked into the path of Horton’s vehicle. See also R. v. Fisher (1992), 1992 CanLII 2106 (BC CA), 13 C.R. (4th) 222 (B.C.C.A.), R. v. Yuzicapi (2010), 2010 SKQB 137, 351 Sask. R. 227 (Q.B.), R. v. Girardin, [1998] O.J. No. 3117 (Gen. Div.), R. v. Tozer (1994), 7 M.V.R. (3d) 83 (N.B.Q.B.) and R. v. Kaukel (1991), 29 M.V.R. (2d) 305 (Ont. Gen. Div.).

[82] In R. v. Hall, supra, another case involving unpredictable pedestrians, my colleague Molloy J. distinguished both Marbus and Petznick. She noted that the emergency situation in the case before her was “created, to a significant degree, by the nature of Mr. Hall’s driving.” In this respect, see also R. v. Wengenmayr, [2012] B.C.J. No. 2508 (S.C.), a case in which the accused was found guilty of impaired driving causing death, even though the actions of one of the pedestrians contributed to the accident. As I have already said, this element (bad driving on the part of the accused) was absent in Marbus and Petznick, and some of the other cases cited above. It is also missing in this case.

[83] In the circumstances of this case, I have a reasonable doubt on whether Mr. Phan’s impairment was a “significant contributing cause” of Ms. Williams’ death. To summarize, I reach this conclusion for the following reasons:

• There is no evidence of the manner in which Mr. Phan was driving prior to hitting Ms. Williams. There is no indication of erratic driving or excessive speed. The evidence of Mr. Crooks creates doubt as to the accuracy of the reconstruction evidence that suggests that Ms. Williams was struck and vaulted over the Phan vehicle. The evidence of Mr. Crooks points to a forward projection, suggesting a much-reduced rate of speed and an attempt to avoid the hazard by braking;
• There is evidence that Ms. Williams was in motion before she was struck. Pulling together the evidence of Messrs. Cheema, Banga and Crooks, Ms. Williams may have been moving from the right shoulder to the left shoulder. Counsel for Mr. Phan posited the theory that Ms. Williams may have been attempting to cross the highway to get to a vehicle parked on the left shoulder. While it is difficult to draw any firm conclusions about this theory, it is evidence that adds to the uncertainty of what exactly transpired on the highway that night;
• Ms. Williams was in a vulnerable condition. There was evidence that her judgment was clouded and her gross motor skills were compromised. She was unpredictable and created a dynamic situation, making it difficult for motorists to react; and
• The collision was unavoidable. I have grave doubts whether a driver who was completely free from alcohol would have been able to take effective evasive action. Mr. Banga, who drove past Ms. Williams just one lane away, said he probably would have been able to avoid Ms. Williams. I doubt very much that, had Ms. Williams made a sudden movement in his direction, Mr. Banga would have been able to avoid hitting her. Moreover, Sgt. Shouldice’s testimony in relation to Mr. Cheema’s ability to stop in time makes Mr. Banga’s assertion seem implausible.

In short, legal causation has not been established in relation to impaired driving causing death, contrary to s. 255(3) of the Criminal Code.

iii. “Over 80” Causing Death

[84] Turning to the charge of “over 80” causing death, the fault requirement under s. 255(3.1) is expressed slightly differently from the standard in s. 255(3):

s. 255(3.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in death of another is guilty of an indictable offence and liable to imprisonment for life. [emphasis added]

Section 255(3) requires that the death was caused by impaired driving, whereas s. 255(3.1) requires that an individual, being in a state of "over 80", causes an accident and that death ensues from the accident: see R. v. Jagoe (2012), 2012 NBCA 72, 302 C.C.C. (3d) 454 (N.B.C.A.) and R. v. Karafa (2014), 2014 ONSC 2901, 311 C.R.R. (2d) 30 (Ont. S.C.J.).

[85] Despite the language of s. 255(3.1), the basic principles of causation, as discussed in Nette and Maybin, are still applicable. The Crown cannot escape the burden of formally proving beyond a reasonable doubt that, being “over 80” (as I have already found), Mr. Phan was a significant contributing (i.e., blameworthy) cause of the accident from which death ensued. For the reasons already stated above in relation to s. 255(3), I reach the same conclusion under s. 255(3.1). In short, the collision occurred while Mr. Phan was “over 80”, not because he was “over 80.”

CONCLUSION

[86] On Count 1, I find Mr. Phan not guilty of “over 80” causing death, but guilty of operating a vehicle while “over 80.” On Count 2, I find Mr. Phan not guilty of impaired driving causing death, but guilty of impaired driving.

[87] I wish to acknowledge the professional manner in which counsel conducted themselves during this difficult case. All counsel discharged their adversarial duties with great skill, but also with appropriate respect for the life that was so tragically and needlessly lost on the 401 that night.

Trotter J.

Released: April 2, 2015

[^1]: I note that there was no sound component. [^2]: I was a little unclear on what was to be achieved with the use of this driving record. The Crown suggested that it portrayed Mr. Crooks as a poor driver who could not be trusted in his assertion of his own careful and prudent driving. But this theme was never pursued in cross-examination. [^3]: As discussed in a separate ruling, P.C. DeSouza incorrectly noted that he had placed seals with identical numbers on the two separate vials of blood. [^4]: The difference between Ms. Chow’s analysis and that undertaken at the hospital was likely the result of some evaporation of the alcohol in the vial over time. [^5]: Ms. Chow testified that the projected results from blood tend to be more accurate than projections from blood. [^6]: Because of the complete destruction and dismemberment of Ms. Williams’ body, it was impossible to conduct a post-mortem examination. There was no evidence that dismemberment occurred as a result of the collision with Mr. Phan’s vehicle. As Sgt. Shouldice said in his Supplementary Report: “An examination of an intact body would have assisted in my investigation. With the assistance of a Pathologist I may have been able to conclude the orientation of the pedestrian at the time of impact in relation to the Honda – was the pedestrian struck from the front, back, left or right sides. Unfortunately I was unable to determine this in this collision.” [^7]: In a pre-trial ruling, I decided that certain of these statements were admissible, whereas others were not. [^8]: As noted above, while Arbour J. in Nette said that a jury need not be told to apply factual and legal causation separately, the analytical framework in Maybin seems to require just that: see Don Stuart, “Maybin: Unwise to Leave the Test of Intervening Cause Untethered” (2012), 92 C.R. (6th) 251, at p. 252.