R. v. Wenham, 2015 ONSC 2826

COURT FILE NO.: 007/13

DATE: 2015/05/12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Serge Hamel, for the Crown

Respondent

• and -

MICHAEL WENHAM

Dennis W. Fenton, for the Accused

Applicant

HEARD: March 2, 3, 4, 5, 6 and 13, 2015

Ellies j.

REASONS FOR DECISION

[1] In the early morning hours of July 31, 2011, 19 year old Carter Antila died as a result of an accident involving a six wheeled all-terrain utility vehicle. Following the accident, Mr. Wenham was charged with five Criminal Code offences, including causing Mr. Antila’s death by operating a motor vehicle while his ability to do so was impaired and by operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams in 100 millilitres of blood, contrary to section 255, subsections (3) and (3.1), respectively.

[2] In a pre-trial ruling released on December 3, 2013 (2013 ONSC 7431), I granted an application by Mr. Wenham to exclude evidence under s. 24(1) of the Canadian Charter of Rights and Freedoms, including statements made by him at the scene of the accident and the results of breathalyser tests administered afterwards.

[3] At the commencement of the trial, the Crown withdrew two charges against Mr. Wenham in which it was alleged that he had caused bodily harm to another passenger, Jason Shoemaker, and this matter proceeded on the remaining three charges, which also included a charge of taking a motor vehicle (the ATV) without consent, contrary to section 335(1) of the Criminal Code.

[4] At the conclusion of the evidence, the defence conceded that the charge of taking a motor vehicle without consent had been made out. I agree. Accordingly, there will be a finding of guilty entered with respect to that charge, which is count three on the Indictment.

[5] With respect to the charge of causing death while having more than 80 milligrams of alcohol in 100 millilitres of blood, the Crown submitted that there is no more evidence relating to that charge than the evidence of the blood alcohol readings that were excluded in my earlier ruling under s. 24(1) of the Charter. I do not quite agree with that submission, although it is not really material.

[6] As I will explain, the Crown introduced evidence that Mr. Antila’s blood alcohol concentration at the time of his death exceeded 80 milligrams in 100 millilitres of blood and relies on that evidence together with the evidence of witnesses who testified that Mr. Antila and Mr. Wenham were drinking at about the same rate. This is some evidence from which it could be inferred that Mr. Wenham’s blood alcohol content at the time of the accident exceeded the legal limit. However, if the Crown meant to concede that this evidence is not enough to sustain a conviction on this charge, then I agree. The evidence falls short of establishing with enough certainty the amount of alcohol Mr. Wenham consumed. It was insufficient to permit an expert to give an opinion on the issue, and none was proffered. A finding of not guilty will be entered on that charge, set out in count number four on the Indictment.

[7] That leaves only count number one, the charge of operating a motor vehicle while Mr. Wenham’s ability to do so was impaired by alcohol, thereby causing Mr. Antila’s death. For the following reasons, a finding of not guilty will also be entered on that count.

BACKGROUND

[8] I will begin with the least contentious evidence.

[9] In 2011, Mr. Wenham was employed as a “visual merchandiser” for VF Corp., a company which sells Vans shoes, clothing, snowboards, and the like. Mr. Shoemaker worked for a company called Myriad Sales, a company which initiates sales events.

[10] On the weekend of July 29, 2011, Mr. Wenham and Mr. Shoemaker were in New Liskeard on behalf of their employers to participate in a scavenger hunt to promote products sold by Howey Bros., a store that sold Vans products. They drove a company van from southern Ontario, where they lived and worked, arriving in New Liskeard at about 4:00 p.m. on Friday, July 29. They stayed at a local hotel overnight and checked out of the hotel early the next morning. According to Mr. Shoemaker, their plan was to drive back to southern Ontario when their work in connection with the scavenger hunt was completed.

[11] Mr. Wenham and Mr. Shoemaker arrived at Howey Bros. at about 9:30 a.m. on July 30. When they got there, Mr. Shoemaker began working inside the store and Mr. Wenham manned a tent and barbecue area which was set up outside.

[12] During the day, Mr. Wenham and Mr. Shoemaker met a number of young people, including Jessie McKay, Ryan Despres, and Carter Antila.

[13] Neither Mr. Wenham nor Mr. Shoemaker consumed any alcohol during the day.

[14] The scavenger hunt lasted until about 4:00 p.m. on Saturday, after which prizes were awarded to the successful participants. At some point during the day, Mr. Despres invited Mr. Wenham, Mr. Shoemaker, Mr. Antila and Ms. McKay to his family cottage, which was situated on an island on Anima Nipissing Lake. Anima Nipissing Lake is located just south of the town of Latchford, which is about 25 kilometres south of New Liskeard.

[15] After the scavenger hunt was over, Mr. Depres drove Mr. Jenkinson from Howey Bros. to the boat launch at Anima Nipissing Lake. Mr. Wenham and Mr. Shoemaker drove the company van and Ms. McKay took her own vehicle.

[16] None of the witnesses were able to say how Mr. Antila got there.

[17] Estimates vary with respect to the time at which different members of the group arrived at the island and the time at which they left. In general, however, the evidence is that they went directly from Howey Bros., arriving at the island between 5:30 and 7:30 p.m., and that they left the island between 9:00 and 11:00 p.m. Everyone agrees that, while they were together on the island, the group went fishing, using a pontoon boat belonging to the Despres family. At some point during the evening, it was decided that Mr. Wenham and Mr. Shoemaker would join Ms. McKay and Mr. Antila, who were planning to attend a truck rodeo being held in Québec, just over the border from New Liskeard.

[18] And so, at some time between 9:00 and 11:00 p.m., the four of them were taken by boat back to the landing. From there, Ms. McKay drove the three young men to her parents’ farm, located at 884246 Highway 65, in Diamond Township, southwest of New Liskeard. The preponderance of the evidence indicates that, along the way, they made two stops. One was at a residence in Haileybury, where they picked up Amy O’Meara, a friend of Ms. McKay’s who was visiting the area for the weekend. The other stop was at Mr. Antila’s parents’ home, where he dropped off a wet bathing suit and got a change of clothes. According to Ms. McKay, the group arrived at her parents’ house between 11:00 and 11:30 p.m.

[19] When they got there, Ms. McKay parked her car not far from the front of her parents’ house and went directly into the house to get ready to go to the rodeo. According to Ms. McKay and Ms. O’Meara, Ms. O’Meara stayed outside for several minutes with the three young men before going inside to check on Ms. McKay. According to Ms. O’Meara, all three young men opened a beer from a cooler that was in the trunk of Ms. McKay’s car.

[20] According to Mr. Shoemaker, he and Mr. Antila each opened a beer from that cooler and walked to an area from which they had heard the sound of horses. An aerial photograph introduced as an exhibit during the trial (ex. #4) indicates that this area is somewhat to the south and to the west of the house. The area was dark. The only light was coming from outside of the house.

[21] Mr. Shoemaker did not know where Mr. Wenham had gone. He assumed that Mr. Wenham had gone to relieve himself somewhere. A short while later, however, while Mr. Shoemaker and Mr. Antila were petting the horses, Mr. Wenham pulled up in the ATV.

[22] Mr. Shoemaker and Mr. Antila got in and all three young men sat on the only seat in the vehicle, a bench seat. Mr. Shoemaker sat in the middle and Mr. Antila sat on the outside. Mr. Wenham then drove the ATV, first back towards the house and then down what Mr. Shoemaker called the “main driveway” towards what he first called a “shed” and later identified as a barn.

[23] According to Mr. Shoemaker, they made one left hand turn from the driveway onto a laneway that runs along the barn, and then another turn just after the barn. As they made the second left hand turn, Mr. Shoemaker saw a maintenance shed into which he believed Mr. Wenham was planning on parking the ATV. As the ATV was making a sharp turn towards the shed, it flipped onto the passenger side of the vehicle. Mr. Shoemaker hit his head on the windshield and believes that he blacked out. When he came to, he could hear Mr. Wenham asking if everyone was okay. Mr. Shoemaker responded. Mr. Antila did not. Mr. Shoemaker and Mr. Wenham then flipped the ATV back over onto its wheels. Mr. Shoemaker saw Mr. Antila lying on the ground, obviously injured. Photos show that Mr. Antila suffered a significant head injury, among others.

[24] Mr. Shoemaker told Mr. Wenham to call 911. As Mr. Wenham did that, Mr. Shoemaker realized that they did not know where they were. Neither of them had ever been there before. Mr. Shoemaker ran to the house to tell the young ladies that Mr. Antila had been seriously hurt and to ask them to call 911. He then ran back to the scene, followed by Ms. O’Meara and Ms. McKay. Mr. Wenham was still on the cell phone. A recording of the 911 call played during the trial demonstrates graphically the horror and tragedy of what was unfolding that night.

[25] Members of the Ontario Provincial Police at the New Liskeard detachment responded immediately to the 911 call, although they could not go directly to the scene as a result of the time it took to determine where it was. Constable Fortin was the first to arrive, followed shortly thereafter by Constable Purdie. Mr. Antila was dead by the time they got there.

[26] Mr. Wenham was charged later that day.

ISSUES

[27] In order to succeed, the Crown must prove three things beyond a reasonable doubt:

(1) that Mr. Wenham was operating a motor vehicle;

(2) that Mr. Wenham’s ability to do so was impaired by alcohol; and

(3) that the impairment caused the death of Mr. Antila.

[28] There is no issue with respect to the first element. Although Mr. Wenham’s statements about who was driving at the time of the accident were excluded, the evidence of Mr. Shoemaker establishes beyond a reasonable doubt the fact that Mr. Wenham was driving the ATV.

[29] The central issues, therefore, are whether the Crown has proved that Mr. Wenham’s ability to operate the motor vehicle was impaired by alcohol and that the impairment caused Mr. Antila’s death.

ANALYSIS

Issue 1: Impairment

[30] In order to prove that Mr. Wenham’s ability to operate a motor vehicle was impaired, the Crown need not prove a marked behavioural departure from the norm. It is sufficient if the Crown proves any degree of impairment, provided it does so beyond a reasonable doubt: see R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (Ont. C.A.), at para. 14.

[31] As the trial judge, I am required to have regard to all of the evidence in order to determine whether this onus has been met: see R. v. Martin (2006), 40 M.V.R. (5th) 35, [2006] O.J. No. 4602 (Ont. C.A.), at para. 8. In this case, that includes the evidence of the expert called by the Crown regarding impairment, the evidence of the young people with whom Mr. Wenham spent time on the evening in question, and the evidence of the accident itself. It also includes the evidence of the police officers who attended the scene of the accident and the audio recording of the 911 call.

Expert evidence

[32] Inger Bugyra is a forensic toxicologist, employed by the Center of Forensic Sciences. There is no issue that she is qualified to testify about the absorbsion, distribution, and elimination of alcohol in the human body, as well as the effects of alcohol on human behaviour.

[33] As Ms. Bugyra indicated in her evidence, while the term “intoxication” refers to outward signs of drunkenness, the term “impairment” refers to the decreased ability of an individual to perform certain tasks. A person may be impaired, but not show signs of intoxication: see also R. v. Censori (2001), 22 M.V.R. (4th) 178, [2001] O.J. No. 5189 (S.C.J.), at para. 49. While a person may be impaired with a blood alcohol concentration of as little as 15 milligrams in 100 milliliters, Ms. Bugyra testified that impairment becomes significant at a blood alcohol concentration of 50 milligrams in 100 milliliters.

[34] Ms. Bugyra testified that alcohol may impair a number of the functions ordinarily performed by the driver of a motor vehicle, including the ability to divide attention between tasks, the time it takes to react, the ability to judge speed and distance, the driver’s ability to perceive, and the ability to process information.

[35] She testified that signs of impairment would be more evident in someone driving an unfamiliar vehicle. However, there is no evidence in the trial proper as to Mr. Wenham’s familiarity with vehicles of the type he was driving on the night of July 30.

[36] Ms. Bugyra testified that test samples taken after the accident show that Mr. Antila had a blood alcohol concentration of 150 milligrams per 100 milliliters at the time of his death. At a body weight of 150 pounds, this represents at least 5.5 standard drinks. In this case, the evidence was that both Mr. Antila and Mr. Wenham were consuming beer. The Crown relies on the evidence of Mr. Antila’s blood alcohol level in conjunction with the evidence of witnesses who testified that Mr. Wenham’s consumption of beer on the evening of July 30 was similar to that of Mr. Antila, to which evidence I will now turn.

Ryan Despres’ evidence

[37] Ryan Despres seems like a nice young man. He was not, however, a very reliable witness.

[38] Mr. Despres testified that Mr. Antila was one of his very good friends, if not his best friend. In my view, the strength of that friendship has tainted Mr. Despres’ evidence about the events of the evening of July 30. So has the passage of time. Mr. Despres was not asked to remember those events until June 26, 2013, when he was requested for the first time to provide a statement to the police.

[39] Mr. Despres testified that he and Justin Jenkinson, another friend of Mr. Antila’s who was at Howey Bros. that day, were the first to leave the store and that they travelled together to the landing at Anima Nipissing Lake. They arrived at about 6:30 p.m. According to Mr. Despres, they then took a family boat, one of which is tied up to the landing at all times, to the island. Mr. Despres testified that he did not drink on the evening of July 30 and does not usually do so at his own parties, in case of an emergency.

[40] Mr. Desprey testified that he was the one who picked the other young people up at the landing to bring them to the cottage. He said that they arrived at between 7:00 and 7:30 p.m. and that, while they were there, they stayed in the area of a sleep camp, away from the main cottage. The group went swimming and diving from a board that I believe the evidence indicates is attached to the deck of the sleep cabin. Mr. Despres testified that the group was together the entire night, staying within a 50 foot radius of one another.

[41] Mr. Despres testified that Mr. Wenham, Mr. Shoemaker, Mr. Jenkinson and Mr. Antila all had four to five beers each in the first hour after their arrival. He said that these beers were all “shotgunned”. According to the evidence, shotgunning is a drinking activity in which a hole is punched in the side of the beer can, the can placed to the mouth of the drinker, and the tab popped off the top. The effect is to speed up the flow of the beer through the hole in the side of the can. Mr. Despres testified that this was done in a competition of sorts between the four young men.

[42] After the shotgunning contest, Mr. Despres took the group fishing, using the family’s pontoon boat. According to Mr. Despres, the group returned to the cottage on the island just after 10:30 p.m. After they got there, Mr. Wenham, Mr. Shoemaker and Mr. Antila said that they wanted to accompany Ms. McKay to the truck rodeo. The four of them left the island at about 11:00 p.m.

[43] Mr. Despres testified that, although Mr. Wenham, Mr. Shoemaker and Mr. Antila were sober when they arrived at the island, their demeanor changed after drinking. He described them as getting louder, with more get up and go, and wanting to do things. He said they were “buzzed”, “drunk”, and unfit to drive.

[44] I am unable to accept Mr. Despres’ evidence on these important aspects of this case. In my opinion, his evidence is unreliable. I will highlight a few of the difficulties I have with it.

[45] For starters, Mr. Despres frequently spoke in generalities while giving his evidence. For example, he testified that he “must have asked” Mr. Antila to stay at his cottage on the night of July 30. When he spoke about how he got from the landing to the island, he talked about how one boat is “always” tied up at the landing. As another example, while speaking about how he knew when to pick the others up at the landing, he testified that he “tells people to text from the highway, because there is no cell service later”. Although this evidence is not particularly material, it serves to demonstrate my concern about Mr. Despres’ ability to remember specifics. As it turns out, his memory about these peripheral things is contradicted by the evidence of other witnesses, as was his evidence about more important things.

[46] Mr. Despres’ evidence as to how Mr. Wenham and Mr. Shoemaker got to the island was contradicted by Mr. Shoemaker, who said that he and Mr. Wenham followed Mr. Despres and Mr. Jenkinson, who were in the Despres vehicle. Mr. Shoemaker testified that it was Mr. Despres’ father who picked them all up. Mr. Shoemaker’s evidence makes more sense, for three reasons.

[47] First, I believe that all of the young witnesses testified that the Despres family were entertaining visitors at the time they arrived on the island. It seems likely that Mr. Despres senior would have had to take the boat that is always tied up at the landing in order to get to the island himself, unless another boat was towed to and left at the landing, which seems unlikely.

[48] Second, there is no evidence that either Mr. Wenham or Mr. Shoemaker knew how to get to the landing on their own. It makes sense that they would follow Mr. Despres in his vehicle.

[49] Third, Mr. Shoemaker’s evidence about the trip to the landing is much more detailed than that of Mr. Despres, including the fact that both vehicles made a stop for gas and snacks at Latchford. It is unlikely that Mr. Shoemaker is confusing his trip to the cottage on July 30 with his later trip home, after Mr. Wenham was charged. He testified that they had to take a cab to the landing after Mr. Wenham was released. It is unlikely that he and Mr. Wenham would have travelled from the landing north to Latchford and then turned around and travelled south.

[50] I also find Mr. Shoemaker’s evidence to be more reliable with respect to the extent of the invitation that Mr. Despres extended to Mr. Shoemaker and Mr. Wenham that day at Howey Bros. Mr. Despres testified that he did not invite them to stay the night, but that he was prepared to accommodate them, if necessary. Mr. Shoemaker’s evidence that they were invited to stay the night is more believable. He testified specifically about where they were told they would be staying and the bed beside which they put their things in the main cottage. As well, all of the witnesses who testified about it said that Mr. Wenham and Mr. Shoemaker did not decide to join Ms. McKay and Mr. Antila at the truck rodeo until well into the evening of July 30. Prior to that, Mr. Wenham and Mr. Shoemaker had no place to spend the night. It is unlikely that they planned to return to southern Ontario after working all day and partying into the night.

[51] Two other examples of the unreliability of Mr. Despres’ evidence relate to his testimony about who was at the cottage on the night of July 30. Mr. Despres told Constable Purdie on June 26, 2013, that Mark Howey (one of the Howey brothers) was present at the island on the evening of July 30. As Mr. Despres admitted at trial, that is not true.

[52] More importantly, Mr. Despres repeatedly told the police that Amy O’Meara was also present that night, which is also not true. In his statement to Constable Purdie, Mr. Despres mentioned seven times that Ms. O’Meara was there. He even told Constable Purdie that she brought some booze to the island, but that, because she doesn’t drink beer, it was probably “Bombay or coolers”.

[53] Mr. Despres continued to insist that Ms. O’Meara was present up until the time he was being interviewed by the Crown in preparation for trial, who later pointed out that Mr. Despres was wrong. Although he denied it at first, in cross-examination Mr. Despres was forced to admit that he had reconstructed his memory of the evening using a photograph taken of the group by Mr. Jenkinson while on the pontoon boat (ex. #3), from which he had incorrectly identified a young lady who was visiting from London as Ms. O’Meara.

[54] The unreliability of Mr. Despres’ evidence on these less important aspects of the events of that night undermines the reliability of his evidence on the more important ones.

[55] Mr. Despres testified that he saw “the Vans reps” – a term that was frequently used by the lay witnesses about which I shall have more to say later – bring a box of 24 Pabst Blue Ribbon beer with them onto the island. This contradicts the evidence of just about all of the other witnesses, as well as the real evidence in the case. Mr. Shoemaker testified that he and Mr. Wenham brought onto the island a cooler which was in the company van when Mr. Wenham picked him up. Mr. Jenkinson testified that he took about four beer out of a cooler from which Mr. Wenham, Mr. Shoemaker, and Mr. Antila were also taking beer that evening. Ms. McKay also testified about a cooler full of beer. The cooler is depicted in the photograph taken by Mr. Jenkinson on the pontoon boat. It was also later retrieved by the police from the McKay residence and introduced as an exhibit at the trial. Mr. Despres admitted that it did not look like one belonging to his family and could not explain how it got on the boat.

[56] Mr. Shoemaker testified that the cooler contained “around a 12 pack” of Pabst Blue Ribbon beer, which was not in a case, but which was loose in the cooler. It would make no sense for Mr. Wenham and Mr. Shoemaker to bring both a case of beer and a cooler, when the one could most likely have fit into the other.

[57] Mr. Despres’ evidence that the other young men were shotgunning beer is also contradicted by the evidence of the other three witnesses who were with him on the island. Mr. Shoemaker denies that there was any shotgunning taking place. Mr. Jenkinson testified that, although he knows what shotgunning is and that it is not something that happens very frequently, he did not recall any shotgunning taking place that evening. Lastly, although Ms. McKay testified that there was shotgunning that night, she said that it occurred on the pontoon boat, and not on the island, as Mr. Despres said it did.

[58] Mr. Despres’ evidence about shotgunning also contradicted itself. He told Constable Purdie on June 26, 2013, that they were “sitting there shotgunning beer”. However, he also testified that the shotgunning took place outside of the sleep cabin, on the deck of which he admitted at trial there were no chairs.

[59] Lastly, Mr. Despres also contradicted himself when he testified that Mr. Jenkinson was one of the “shotgunners” (my word, not his). In the statement he gave to Constable Purdie, he stated that everybody opened up a beer when they started to swim and that “maybe Jenks opened one and that’s it”.

[60] For these reasons, I find myself unable to rely on the evidence of Mr. Despres about how much beer was consumed by Mr. Wenham, and how it was consumed. I am also not comfortable relying on Mr. Despres’ evidence about Mr. Wenham’s state of sobriety.

Justin Jenkinson’s evidence

[61] Like Mr. Despres, Mr. Jenkinson was also not asked to recall the events of July 30, 2011, until June 26, 2013. However, he gave a much more believable demonstration of what happens when that occurs.

[62] Unlike Mr. Despres, Mr. Jenkinson was drinking on July 30. He admitted that he had between six and eight beer while he was with the others on the island and that he was intoxicated. He testified that it seemed as though “the Vans reps” kept up with him, but he could not explain why he believed that. Given this weakness, I am unable to accept this part of his evidence.

[63] Mr. Jenkinson testified that he brought some beer to the cottage that night, although he could not recall the type. The photograph of the group on the pontoon boat introduced as exhibit #16 shows a bottled beer in front of the cooler, which beer Mr. Despres testified was likely that of Mr. Jenkinson. That is probably true, given that Mr. Jenkinson took the photograph and that the beer would be the closest one to him in the photograph. Mr. Despres testified that the beer was a Corona, likely from the fridge of his family’s cottage. If that is correct, it undermines Mr. Despres’ evidence that the group stayed within 50 feet of one another at the sleep camp.

[64] Although Mr. Jenkinson testified that he could not recall a number of things, he did recall some details of significance. He recalled the time at which he arrived at the island, that Mr. Despres’ parents were already there, that they used the sauna, that they went fishing, and the smell of someone smoking “weed”. All of these things were borne out by other evidence.

[65] Despite the fact that he had been drinking that night, unlike Mr. Depres, Mr. Jenkinson was not contradicted in any material way with the statement he gave nearly two years later. Therefore, where Mr. Jenkinson’s evidence conflicts with that of Mr. Despres, I prefer the evidence of Mr. Jenkinson.

[66] When he was asked to testify about the demeanor of Mr. Wenham at the time he and Mr. Despres took the rest of the group to the landing, and despite the other details of the evening that he did remember, Mr. Jenkinson could not recall the condition of either Mr. Wenham, Mr. Shoemaker or the others and testified that he formed no opinion about their sobriety. I believe that, if they were as drunk as Mr. Despres says they were, it would have been something Mr. Jenkinson noticed, even with the alcohol that he consumed.

Jessie McKay’s evidence

[67] Carter Antila was also one of Jessie McKay’s best friends.

[68] Ms. McKay worked at Howey Bros. and was present during the scavenger hunt that day, where she met Mr. Wenham and Mr. Shoemaker. She had been to the Despres cottage before. Therefore, after the store closed around 5:00 p.m., she took her own vehicle and called Mr. Despres to pick her up at the landing before she got there. She was not sure if there were any others at the landing when she arrived.

[69] Ms. McKay did not bring any alcohol to the Despres cottage. She testified that she consumed no alcohol while she was there, because she planned on driving home afterwards. Although it is not significant, her evidence on this point is contradicted by Mr. Jenkinson, who testified that he saw Ms. McKay drinking that night. That makes some sense, inasmuch as it would explain Ms. McKay’s evidence that, while she was on the island, she not only saw the cooler to which other witnesses have referred, but also looked inside of it. She testified that it was “full” of beer. However, as I will explain, I have difficulty accepting this, and many other parts of her testimony. Her evidence is contradicted by the evidence of other witnesses, by her own evidence, and by her previous statements.

[70] Ms. McKay testified that, when she got to the island, Mr. Wenham, Mr. Shoemaker, Mr. Jenkinson and Mr. Antila were being loud and were “staggering”. However, although she was interviewed on at least three occasions prior to trial, the trial was the first time she ever said any such thing.

[71] The first time Ms. McKay was interviewed was the night of the accident, by Constable Taylor. The second was on August 9, 2011, by Constable Purdie. The last was with the Crown attorney on February 25, 2011. On each of these occasions she was asked about the events of the night of July 30. On none of them did she ever say that Ms. Wenham and the others were staggering when she first arrived on the island. In fact, when she was interviewed on August 9, 2011, by Constable Purdie, Ms. McKay said that she really did not remember the condition they were in when she arrived.

[72] Ms. McKay’s evidence that Mr. Wenham and the others were staggering when she arrived on the island is also contradicted by the evidence of the other witnesses. Mr. Despres testified that “the Vans reps.” did not arrive until 7:00 or 7:30 p.m. I believe he has the time wrong. If the other witnesses all left Howey Bros. after the store closed sometime after 5:00 p.m. and travelled directly from there to the boat landing, it is unlikely that they would have arrived so late. Regardless of the time at which they arrived, Mr. Despres said that, when they did, they were sober. There is no dispute about that. Thus, even if Mr. Despres has the time of their arrival incorrect, it seems highly unlikely that Mr. Wenham and the others could have consumed enough beer in the short time between their arrival on the island and that of Ms. McKay to be staggering by the time she got there.

[73] Ms. McKay testified that she saw Mr. Wenham, Mr. Shoemaker, Mr. Jenkinson and Mr. Antila shotgunning beer while they were together. As I have noted, she testified that the shotgunning took place while they were on the pontoon boat, and not while they were on the island, as indicated by Mr. Despres. Ms. McKay testified that she saw it done twice. She described the process as being one in which, after the beer was consumed, the can was crushed.

[74] Once again, however, the first time Ms. McKay ever said that anyone was shotgunning beer on July 30 was during the trial. In none of the earlier interviews did Ms. McKay say that she saw anyone shotgunning beer.

[75] In addition, I note that, although Ms. McKay testified that shotgunning took place on the boat, earlier in her evidence she testified that she did not recall seeing anyone take any beer out of the cooler clearly shown in the photograph of the group on the boat.

[76] In cross-examination, Ms. McKay also said that, over the course of the evening, she saw Mr. Wenham and the other young men drink five or six beers, including the ones she saw them shotgun. However, in her statement to Constable Purdie, she said that she “honestly” could not tell him how much the four young men had to drink.

[77] Ms. McKay was also asked during the trial to describe the demeanor of the young men at the time that they left the island. She testified that they were “drunk”. She said that they were “unsturdy” on their feet and that they were being loud.

[78] However, because I do not accept her evidence of shotgunning on the boat, or how much she say she saw the young men drink, I also do not accept Ms. McKay’s evidence about the state of Mr. Wenham’s sobriety when he left the island.

[79] Ms. McKay also described the demeanor of Mr. Wenham, Mr. Shoemaker and Mr. Antila while they were in the car on the way to her parents’ home. She testified that “they” were loud, silly, and that they were dancing in the car to loud music. She used the same type of phraseology when she testified that she wanted “the boys” to stay outside of her parents’ house because “they were drunk”. Like the other friends of Mr. Antila’s who were called to testify, Ms. McKay did not describe the demeanor of Mr. Wenham alone. Like the others, she described the demeanor of Mr. Wenham as part of a group, including Mr. Shoemaker and Mr. Antila. In doing so, these witnesses described the demeanor of more than one person and attributed identical behaviour to each and every one. I have difficulty accepting these descriptions as being accurate with respect to Mr. Wenham.

[80] Mr. Shoemaker testified that he and Mr. Antila smoked two “joints” on the night of July 30, one while they were on the island and one while they were on the boat. I have no difficulty accepting that evidence. It is supported by other evidence. Mr. Jenkinson and Mr. Despres testified that someone smoked a joint while they were on the boat. Further, an analysis of Mr. Antila’s blood post mortem shows the presence of chemicals that result from the use of cannabis.

[81] Yet, Mr. Shoemaker also said that Mr. Wenham did not smoke any drugs and there is no evidence from anyone else that he did. If I was to accept the evidence of the other witnesses that Mr. Wenham was drinking at roughly the same rate as Mr. Shoemaker and Mr. Antila, and assume that smoking cannabis causes impairment, it seems unlikely that Mr. Wenham would appear to be as impaired as Mr. Shoemaker and Mr. Antila, when he did not consume the additional drugs that they did.

[82] Finally, I am unable to accept Ms. McKay’s evidence concerning events at her parents’ farm immediately preceding the accident. She testified that she ran outside of the house when she heard the ATV and started yelling at the boys, asking them what they were doing. She made it sound as though Mr. Wenham would have been in a hurry to return the ATV to the place from which he took it. She also testified that she could see the ATV being operated as it made its way back to the barn area because of the spotlight located there. However, Ms. McKay’s evidence at trial was contradicted by the statement she gave to Constable Taylor on the night of the accident. She told Constable Taylor that she was sitting in her car when she first heard the ATV and that she did not see the ATV being driven.

[83] For reasons I will explain, I prefer the evidence of Mr. Shoemaker, who testified that he did not see or hear Ms. McKay from the time she went in the house until after the accident occurred.

Amy O’Meara’s evidence

[84] Amy O’Meara’s evidence suffers from some of the same problems as the evidence of the other individuals I have mentioned.

[85] She was also a close friend of Mr. Antila’s. She and Mr. Antila had spent the night before the fatal accident at Ms. McKay’s residence. Ms. O’Meara testified that she, Mr. Antila and Ms. McKay had been at the truck rodeo the night before and that they were planning on going back the night of the accident.

[86] Ms. O’Meara testified that she had she had consumed two drinks within two hours of being picked up by Ms. McKay. She said that she was able to form an opinion as to the state of sobriety of Mr. Antila, Mr. Shoemaker and Mr. Wenham after a short period of time in Ms. McKay’s car. She testified that she believed that the three of them were drunk. She testified that they were a “seven out of ten”. She said that they were “pumped up” and “wanted to party”. She said that she formed her opinion because they were singing, listening to loud music, and having a good time.

[87] The night of the accident, however, Ms. O’Meara said nothing about Mr. Wenham or any of the others being drunk. She told Constable Taylor that night that they were all “singing and dancing and jamming it up”. Thus, although she only had only two drinks, Ms. O’Meara was behaving the same way as Mr. Wenham was.

[88] Like the other witnesses to whom I have referred, Ms. O’Meara described the behaviours of Mr. Shoemaker and Mr. Wenham as part of a group. She admitted in cross-examination that she could not distinguish between “the Vans reps”.

[89] Ms. O’Meara’s evidence about Mr. Wenham’s impairment is also contradicted to a degree by her actions while at the farm. She testified that, after leaving the house with Ms. McKay, she returned to the house because she had forgotten her purse. The fact that she went back for her purse demonstrates that Ms. O’Meara was not particularly concerned that an accident could occur, as she might be if the three young men had been as clearly impaired as both she and Ms. McKay indicated.

[90] I turn now to the last of the witnesses who was with Mr. Wenham on the night of the accident.

Jason Shoemaker’s evidence regarding impairment

[91] Like the witnesses whose evidence I have already mentioned, Mr. Shoemaker was called as a witness by the Crown.

[92] As of the date of the accident, Mr. Shoemaker had known Mr. Wenham for about seven or eight years. Mr. Shoemaker described Mr. Wenham as a “mellow” type of guy. He described Mr. Wenham’s behaviour during the promotional event on July 30 – at which time he was undisputedly sober – as “joyous”. This is similar to the description Ms. McKay gave of Mr. Wenham’s behaviour on the island, when she testified that he was “boisterous”.

[93] Mr. Shoemaker testified that the scavenger hunt finished at about 4 p.m., after which the prizes were awarded. He said that he and Mr. Wenham had the Vans tent back in the company van by about 4:30 p.m., after which they followed Mr. Despres in his car to the boat landing.

[94] According to Mr. Shoemaker, they arrived on the island at about 5:30 or 6:00 p.m. The first thing they did when they got there was to go swimming and diving, after which he and Mr. Wenham opened a beer. He testified that he spent about an hour with Mr. Despres Sr. at the BBQ and that he then went off on his own to go fishing. He said that he caught about four or five fish.

[95] This was contradicted by the evidence of Mr. Jenkinson and Mr. Despres. Mr. Jenkinson said that he did not recall anyone going off on their own to fish. Mr. Despres went further. He testified that the group stayed within 50 feet or so of each other all night in the vicinity of the sleep camp, which permitted him to make all of the observations he did about their behaviour. If that was true, there would be no way for Mr. Shoemaker to know much about the island. From the time he got there until the time he left, he would have been in Mr. Despres’ company. And yet, Mr. Shoemaker did know a lot about the island. He testified that he knew that the island actually consists of two islands, joined together by a foot bridge, which the evidence indicates is true. He also testified about details of his time spent there, such as going in the boat to pick up Tim Howey, Mr. Howey’s wife and child.

[96] Mr. Shoemaker’s ability to recall details of the night of July 30 is in contrast with the evidence of Ms. McKay, who could not recall any activity taking place other than fishing, although all of the other witnesses testified about swimming and diving, and could not recall how the cooler got into the trunk of her own car, even though she removed it that night and put it behind her parents’ house.

[97] Beyond being more detailed than that of any of the other witnesses who were at the Despres cottage, Mr. Shoemaker’s evidence was given in a more straightforward, candid way. For example, he admitted that he and Mr. Carter smoked drugs that night and that it was not his first time. He also admitted that he was speculating about how much Mr. Wenham and Mr. Antila had to drink, because he was not with them the whole time and was not paying attention to what they were drinking. This is in contrast with the evidence of Mr. Despres, who refused to admit, for example, that he was reconstructing any of his evidence until he was forced to do so.

[98] Mr. Shoemaker testified with no obvious bias. Although he had known Mr. Wenham before Mr. Wenham was hired by VF Corp., Mr. Shoemaker testified that they did not associate outside of work. Mr. Wenham lives in Toronto, while Mr. Shoemaker lives in Hamilton. This is in contrast to all of the other witnesses who were present that night, all of whom were close friends of Mr. Antila’s.

[99] Also in contrast to the evidence of these witnesses is the fact that Mr. Shoemaker was never contradicted by any previous statement, including one he gave to the police on the night of the accident.

[100] Because of these things and because of the other difficulties I have outlined with the evidence of the other young people who were present that night, where Jason Shoemaker’s evidence conflicts with theirs, I prefer the evidence of Mr. Shoemaker, with one exception, to which I will refer shortly.

[101] I accept Mr. Shoemaker’s evidence there was only about twelve or so beer in the cooler when they got to the island.

[102] I accept his evidence that there was no shotgunning.

[103] I also accept his evidence that, when the group left the island, Mr. Wenham “was himself”. He was in a good mood, but there was no evidence from Mr. Shoemaker that Mr. Wenham’s ability to operate a motor vehicle was impaired. In cross-examination, he testified that he would disagree with anyone who said that Mr. Wenham was intoxicated.

[104] The one exception I take to Mr. Shoemaker’s evidence is his evidence as to the amount of alcohol Mr. Wenham consumed on the night of July 30. He testified that he drank two to three beers while on the island, and that Mr. Wenham and Mr. Antila drank the same amount. I do not accept this evidence for two reasons. First, the forensic evidence that I have already mentioned indicates that Mr. Antila had a blood alcohol concentration consistent with having consumed at least 5.5 beers. Second, Mr. Shoemaker was not present during the entire time that Mr. Antila and Mr. Wenham were on the island. He was gone fishing on his own for about an hour, according to his evidence.

[105] The fact that I do not accept Mr. Shoemaker’s evidence as to how much Mr. Wenham had to drink does not mean that I accept that Mr. Wenham was impaired. Indeed, just the opposite is true.

Constable Purdie’s evidence

[106] Mr. Shoemaker’s evidence that Mr. Wenham did not appear to be intoxicated is supported by the evidence of Constable Purdie.

[107] As of July 30, 2011, Constable Purdie had been a police officer for nearly nine years. His training as a police officer included training for the purpose of detecting impairment. He had been trained to look for subtle signs, as well as more obvious ones.

[108] Constable Purdie arrived at the scene of the accident at approximately 12:13 p.m. From the dispatch call, he knew when he arrived that there had been a collision involving personal injury. The first person he saw on the scene was Mr. Wenham. He described Mr. Wenham as having his hands at his side and being “calm”.

[109] After Constable Purdie learned more about what had happened, he returned to speak to Mr. Wenham. Constable Purdie admitted that he knew at that point that he was now dealing with an impaired or over 80 causing death. At the preliminary inquiry, he testified that he was looking for signs of alcohol consumption.

[110] Constable Purdie testified that Mr. Wenham’s speech was not slurred. He testified that, while Mr. Wenham’s voice was “shaking”, it was not obvious to him that this was not caused by the shock of what had occurred.

[111] Despite being trained to record observations of impairment Constable Purdie noted nothing remarkable about Mr. Wenham’s eyes, skin colour, speech patterns, responses, or ability to understand questions. The only thing he noted was the “slight” smell of alcohol. Constable Purdie noted that Mr. Wenham was “standing fine” and had no problems walking.

[112] In short, Constable Purdie saw nothing to cause him to conclude that Mr. Wenham was impaired.

[113] The opinion of a police officer on the issue of impairment is not entitled to any special deference by a court: see R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819; R. v. Martin (2006), 40 M.V.R. (5th) 35, [2006] O.J. No. 4602 (Ont. C.A.). However, the evidence of witnesses such as Ms. McKay, who said that Mr. Wenham was already staggering when she got to the island, and Ms. O’Meara, who said that Mr. Wenham was a “seven out of ten” in terms of impairment, cannot be true if one accepts Constable Purdie’s evidence, as I do. In my view, his evidence is supported by one last piece of evidence, to which I will now turn.

The 911 Call

[114] The audio recording of the call that Mr. Wenham made to the police immediately after the accident was played in full during the trial. It is the second time that I have listened to that audio recording. It was also played during the voir dire held earlier in this case.

[115] As I said in my earlier ruling, the audio recording of the 911 call demonstrates graphically the mayhem that was taking place immediately after the accident. It also constitutes real evidence that demonstrates, to me, that Mr. Wenham was showing no signs of impairment as far as his ability to respond immediately and articulately to questions that were being put to him by the 911 operator, who was trying to determine his location.

[116] The audio recording supports in every way the observations made by Constable Purdie that Mr. Wenham was showing no obvious signs of impairments at the scene only minutes after the accident.

The accident

[117] The fact that an accident occurred may be circumstantial evidence of the impairment of an accused’s ability to operate a motor vehicle. The Crown has provided me with a number of cases supporting this proposition. I will refer only to three of them.

[118] In R. v. Varcoe, [1992] O.J. No. 3833, Takach J. of the Ontario Court of Justice (Provincial Division) convicted the accused of impaired driving causing bodily harm following a single car accident in which the car operated by Mr. Varcoe slid on a paved road that was not slippery.

[119] In R. v. Watts, 2007 ONCA 2271, [2007] O.J. No. 1382, the Ontario Court of Appeal upheld the accused’s conviction for impaired driving causing bodily harm where a bus was struck by a vehicle. In a brief endorsement, the Court of Appeal made reference to the fact that there was no evidence that the road at the spot of the accident was slippery or that driving visibility was poor.

[120] In the more recent case of R. v. Lyaruu, 2011 ONCA 547, [2011] O.J. No. 3558, the Court of Appeal again relied on the fact of an unexplained accident to dismiss an accused’s appeal from his conviction for refusing to take a breathalyser test and impaired driving.

[121] However, in all of the cases to which I have been referred, there were no circumstances to explain the accident. That is not so in this case. As I will elaborate upon when I deal with the issue of causation, there is evidence in this case that explains how the accident occurred.

Conclusion on the issue of impairment

[122] Based on the foregoing, I have a reasonable doubt that Mr. Wenham’s ability to operate a motor vehicle was impaired at the time of the accident.

Issue 2: Causation

[123] I turn now to the evidence of the police officers who investigated the scene. I will also return to the evidence of the only eyewitness to the accident, namely Mr. Shoemaker.

[124] Strictly speaking, it is not necessary for me to deal with the issue of causation. If the Crown fails to satisfy its onus on any of the elements, it fails entirely. However, I will go on to consider the issue of causation in the event that any of the conclusions I have reached to this point in this case have been arrived at in error.

[125] The Crown must prove not only that Mr. Wenham was impaired, but that the impairment caused Mr. Antila’s death. This will be made out where the Crown proves that impairment was a “real factor” in bringing about the death: see R. v. Larocque (1988), 5 M.V.R. (2d) 221, [1988] O.J. No. 2317 (Ont. C.A.).

[126] The Crown does not have to prove that the accident would not have occurred if the driver had been sober: see R. v. Petersen (1989), 16 M.V.R. (2d) 250, [1989] O.J. No. 3078 (Ont. D. C.). Even where a sober driver could not have avoided the accident, courts have held that impairment may be a proven cause is circumstances where an accused should have had a heightened sense of awareness: R. v. St-Amour (2006) Court File No. 14079/05 (Ont. S.C.).

Expert evidence

[127] Three police witnesses were called by the Crown regarding the circumstances surrounding this accident.

[128] Constable David Lince took photographs of the scene, most of which have been admitted into evidence as composite exhibit #6.

[129] In addition to Constable Lince, two Technical Traffic Collision Investigators and reconstructionists attended the scene. Constable John Gallagher was one of them. The other was now retired former Constable Jason Smith, who took the lead on the investigation.

[130] Before retiring in 2012, former constable Smith had put in over 30 years as a police officer. More than 20 of those years was spent as a Traffic Technical Collision Investigator and more than 10 of them as an accident reconstructionist.

[131] Using a device called a “total station” and an “Allegro” machine, former constable Smith and Constable Gallagher collected data at the scene which they later fed into a computer, in order to prepare a diagram. That diagram was attached to a report prepared by former constable Smith, which report was entered as exhibit #29. A blow up of that diagram was entered as exhibit #30. The diagram depicts the layout of the farm, including tire tracks observed by police who attended the scene.

[132] Former constable Smith testified that he observed a number of tire tracks made in the long driveway leading from the house to the area of the barn and in the laneway running along the barn to the area in which the ATV flipped over. He testified that these included a set of tire tracks on the main driveway much closer to the house than the area in which the accident took place. Scott McKnight also said that he saw a set of tire tracks in that area.

[133] Former constable Smith testified that, based on the tire tracks closest to the house, it appeared to him that the operator of the ATV had successfully undertaken a maneuver he called a “power turn” in the area of the main driveway. By this phrase, he testified that he meant to refer to a maneuver in which the driver had his foot on the gas to a certain degree while making the turn. This evidence is relevant because it might demonstrate that Mr. Wenham knowingly took a risk at the time of the accident that he had successfully undertaken earlier.

[134] However, I have difficulty placing much weight on former Constable Smith’s evidence with respect to this set of tire tracks. He directed Constable Lince to take pictures of tire tracks upon which he relied in order to formulate opinions to which I will refer shortly. He and Constable Gallagher also used the total station and Allegro machine in order to map out the scene of the accident for the purposes of this prosecution, including certain tire tracks. Neither the photos nor the diagram show the tire tracks closest to the house.

[135] The photographs and the diagram of the scene of the accident which show the tire tracks relied upon by former constable Smith allow the court to determine how much weight to place on his opinion about how the accident happened. Without some means by which to gauge the weight to be placed on former constable Smith’s opinion about the tire tracks closer to the house, it is not possible for me to place much weight on them at all.

[136] Based on the tire tracks that are shown in the photos and on the diagram, former constable Smith testified that the vehicle in this case was capable of making a turn with a radius of only about 5.5 meters. He testified that this was a “very sharp turn”; much sharper than a car could possibly make.

[137] Former constable Smith’s evidence was that the ability of the ATV to make such a sharp turn rendered the vehicle unstable and that this was one of the reasons the accident occurred. Mr. McKnight, the owner of the ATV, testified that the ATV was equipped with a roof, which he added after he bought it. He agreed that it could make the vehicle more prone to tipping. He testified that it had never happened to him, but he also said that he had driven this type of vehicle all of his life and he knows what will happen if he attempts to make too sharp a turn for the speed the vehicle is travelling. As it turns out, that speed is much slower than one might think.

[138] The photos taken by Constable Lince at the scene of the accident clearly depict the marks left in the gravel by the side walls of the tire on the ATV after it flipped over. Based on the fact that the ATV did not slide after tipping over, former constable Smith formed the opinion that what occurred in this case was “a very low speed rollover”. Although he has no way of calculating exactly the speed of the vehicle at the time that it flipped, it was his estimate that the vehicle was travelling at approximately 10 kilometers per hour at the time it rolled onto its side.

Jason Shoemaker’s evidence regarding the accident

[139] Mr. Shoemaker testified that that the ATV was travelling at about 16 or 17 kilometers per hour as they made their way from the area in which he and Mr. Antila were petting the horses to the area in which the accident occurred. This is consistent with former constable Smith’s evidence about the speed at which the vehicle was moving when it tipped over.

[140] Mr. Shoemaker testified that it felt like they were on the ATV for less than 30 seconds before the accident happened. He told the police that, during this time, Mr. Wenham was driving with care and that the ATV was quite controlled. Mr. Shoemaker testified that he never feared for his own safety. He testified that, when the ATV tipped over, “it felt like it came out of nowhere”.

Conclusion on the issue of causation

[141] For reasons that I have already expressed, I accept the evidence of Mr. Shoemaker with respect to the manner in which Mr. Wenham was operating the vehicle at the time that it tipped over. His evidence is supported by the evidence of former constable Smith. In light of that evidence, if there was any impairment, I am not at all satisfied that it was real factor in the death of Mr. Antila.

[142] In my view, the evidence of former constable Smith and that of Mr. Shoemaker also distinguishes this case from those to which I have earlier referred in connection with the issue of impairment. This is not an unexplained accident. This accident occurred because of a vehicle that was able to make turns far sharper than those of an automobile and which was, because of its nature, much less stable.

CONCLUSION

[143] I am not satisfied beyond a reasonable doubt that Michael Wenham’s ability to operate a motor vehicle was impaired at the time that Carter Antila lost his life.

[144] It must be borne in mind that the Crown’s obligation is not simply to prove some degree of impairment, by itself. The Crown’s task is to prove impairment of Mr. Wenham’s ability to operate a motor vehicle. As Ms. Bugyra indicated, operating a motor vehicle requires the ability to perceive things as they occur, to make quick decisions, to react quickly, to multitask, and to perform complex motor skills. Lay witnesses are entitled to give an opinion that someone was “drunk” (: Graat). However, in order to determine the weight to give such a conclusion, it is helpful to know the evidence on which it is based.

[145] At its highest, the evidence which I accept about Mr. Wenham’s state of sobriety is consistent with the fact that he was having a good time and not that he was impaired. He was behaving on the island and in the car the same way other young people were behaving who were clearly not impaired by alcohol. There is no reliable evidence from them that Mr. Wenham’s mental or physical faculties were impaired by alcohol at the time that this tragic accident occurred.

[146] As a result, I have no reason to prefer their evidence over that of Constable Purdie, who had no reason to conclude that Mr. Wenham was impaired.

[147] I am also not satisfied beyond a reasonable doubt that, even if the Crown had proven Mr. Wenham was impaired by alcohol, the impairment caused the death of Carter Antila.

[148] Mr. Shoemaker, the only eyewitness to the accident, testified that Mr. Wenham was in control of the ATV the entire time leading up to the accident and that there was no indication the vehicle was at risk of flipping before it did.

[149] His evidence is supported by the evidence of the police officer who investigated this accident. According to former constable Smith, at the time of the accident, Mr. Wenham was operating a vehicle which was capable of making sharp turns at a very low speed, causing it to be unstable.

[150] For these reasons, I find Mr. Wenham not guilty of the charge of impaired driving causing death. An acquittal will be entered on count number one.

Ellies J.

Released: May 12, 2015

CITATION: R. v. Wenham, 2015 ONSC 2826

COURT FILE NO.: 007/13

DATE: 2015/05/12

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

MICHAEL WENHAM

Applicant

REASONS FOR DECISION

Ellies J.

Released: May 12, 2015