R. v. Stevens, 2015 ONSC 436

COURT FILE NO.: 11318

DATE: 2015/02/26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

B. White, for the Crown Attorney

• and -

Amanda Stevens

A. Rady, for the accused

Accused

HEARD: May 21, 22, 23 & October 31, 2014

A. J. Goodman, J.:

Background

[1] On the evening of Tuesday October 11, 2011, Glenn David Wilson tragically lost his life after the tractor he was driving was struck from behind by a pick-up truck that was being driven by Ms. Amanda Stevens.

[2] Ms. Stevens faces three charges; namely, while her ability to drive a motor vehicle was impaired causing death; while her blood alcohol level exceeded 80 mg of alcohol per 100 mL of blood causing death; and driving a motor vehicle in a manner that is dangerous to the public causing death, all contrary to their respective provisions of the Criminal Code.

[3] Ms. Stevens pleaded not guilty to all counts. Ms. Stevens raised a s. 8 Charter challenge and it was considered during this trial in the nature of a blended voir dire. At the close of the Crown’s case, the defence chose not to call any evidence.

Facts:

[4] Drew Wilson is the nephew of the deceased, Glenn Wilson. On October 11, 2011, Drew saw his Uncle arrive at the family farm (2799 Katesville Road in Middlesex County) at around 7:50 p.m. Glenn was driving a John Deere tractor and observed that the headlights were on as the tractor made its way up the long laneway. Drew described the tractor’s lighting equipment consisting of two headlights; two taillights; two hazard lights mounted on the roll bar; two strips of reflective tape placed on the roll bar, and a large white spotlight (or work light) on the rear of the tractor.

[5] Drew observed Glenn leave the farm on the tractor at around 8:00 p.m. Drew testified that he saw the rear lights on but did not did not see the roll bar lights as the tractor left the farm. He could not recall if the tractor was towing something at the time that Glenn left the farm property.

[6] Melvin Wilson is the uncle of the deceased; Glenn Wilson. Melvin recalled seeing his nephew the evening of October 11, 2011 and at that time Melvin was travelling on the driveway of his farm (2311 Katesville Drive). Melvin testified that while in the laneway, the tractor that Glenn was driving had its headlights on and taillights were all on including the working light, but he did not know what lights were illuminated when the tractor was travelling on Katesville Road. Melvin testified that the reflective tape would light up when headlights were shone on them.

[7] A few minutes after his nephew left his farm, Melvin left in his pick-up truck and went in the same direction that Glenn had been travelling. Melvin came upon the scene of the motor vehicle collision and found Glenn on the side of a ditch. In cross-examination, Melvin claimed that the front end loader portion of the tractor that Glenn had been operating did not block the headlights on the tractor. Melvin described Glenn’s tractor and made references to the lighting system.

[8] Curtis Wilson is the 14 year old nephew of Glenn Wilson. Curtis testified that he had worked with his uncle at the family farm on October 11, 2011 and he described Glenn’s tractor including the lighting system. Curtis testified that the John Deer tractor had four different light settings which controlled which lights were in use, including: Position #1: flashing hazard lights and no headlights; Position #2: rear work light and headlights; Position #3: flashing hazard lights and headlights (low beams); and Position #4: flashing hazard lights and headlights (high beams).

[9] Curtis testified that if the rear field light (or work light) was on then the headlights would also be in the “on” position. Curtis testified that the rear field light would be brighter than the road lights. Curtis recalled that at the time that Glenn was leaving the farm at about 8:00 or 8:15 p.m., he could see that his uncle had the square bailer hooked up to the rear of the tractor and that the tractor had its headlights and four-way flashers on but not the working light. Curtis added that one could not have the working light and the flashing lights on at the same time.

[10] Curtis testified that Glenn left the 2799 Katesville Drive farm and attended at the residence of Melvin Wilson. In cross-examination, Curtis agreed that the tractor was generally dirty but also stated that the tractor’s lights and reflective tape were still visible.

[11] Gerald Dymond resides at 2226 Katesville Drive. The fatal motor vehicle collision occurred in front of Gerald’s property. Gerald testified that on the evening of October 11, 2011 he and his son just finished working in the field and were just going into the house when he observed a John Deere tractor with a front loader travelling on Katesville Drive. Gerald testified that he was approximately 200 feet from the roadway when he observed the tractor and that he had an unobstructed view of the roadway.

[12] Gerald observed that the tractor had a rear white light, which he described as a “good work light,” its size being slightly larger than a softball. He testified that due his angle of view, he only really saw the side of the tractor. Gerald testified that he observed a truck approaching the tractor from the rear travelling about 90 kmh and expected the truck to pass the tractor. Instead of passing the tractor the collision occurred.

[13] Shortly after the collision, Gerald observed a man on a motorcycle travelling in the same direction as the truck and the tractor, drive past the collision scene and then turned around and came back. In cross- examination, Gerald testified that it was not really dark out at that time, but that it was getting dark. In cross-examination, Gerald agreed that he only assumed that the tractor’s headlights were on and normally the work light would be used in the field. Gerald testified that he did not see any flashing hazard lights on the tractor and agreed that he would have remembered flashing hazard lights on the tractor if they had been on.

[14] On the evening of October 11, 2011, Donald Graham observed a pick-up truck leave Rebecca Hastie’s residence; which is located at 2375 Katesville Drive. Donald was leaving his friend’s residence, which is located directly beside Ms. Hastie’s house, on his Harley Davidson motorcycle and travelled in the same direction as the truck; approximately one minute after the truck had left the Hastie residence.

[15] Donald described Katesville Drive as a flat paved straight roadway with no hills, twists or turns. Donald testified that the paved roadway was dry with no street lights and that it was a dark evening with no moon. Donald testified that he travelled for approximately one mile when he came upon debris on the road. He drove through the debris and past the scene of the collision, then stopped and returned to the scene. He dialed 911. Donald approached a woman in the driver’s seat of the black pick-up truck and then to the tractor and found a man lying unconscious on the ground in a ditch. He then heard a woman in the truck and when he approached the truck, the woman kept repeating: “Is everyone okay”?

[16] From speaking with the woman (later identified as Ms. Stevens) Donald was able to determine that she had hurt her ankle. Ms. Stevens was hysterical and stated to Donald that she did not know what had happened and asked him what she had hit. Ms. Stevens exited the truck on her own, and sat down on the grass near the driver’s side of her truck. In cross-examination, Donald testified that he did not smell an odor of an alcoholic beverage on Ms. Stevens’ breath. He did not see the tractor going by his friend’s house prior to his departure on his motorcycle.

[17] Rebecca Hastie and Amanda Stevens are close friends who have grown up in the same town together. Rebecca testified that on the evening of October 11, 2011, Amanda had attended at her home (2375 Katesville Drive), at approximately 6:00 p.m. Amanda left Rebecca’s residence at approximately 8:00 p.m. She testified that while her friend was at her home, Amanda consumed one regular sized can of Bud Light beer. As to when Amanda had consumed the beer, Rebecca presumed that Amanda had consumed the beer within the first hour of her arrival. While Amanda later informed Constable Dilks that her last alcoholic drink was consumed not long before leaving her friend’s place and that she admitted to consuming two “tall boy” cans of beer and a can of “Monster Vodka” at Rebecca’s home; this witness specifically denied this assertion and stated that no monster sized cans of vodka were consumed at her home. She added that Amanda seemed fine to her when her friend left her residence.

[18] After Amanda left the hospital, Rebecca later visited with her at Amanda’s residence and Rebecca testified that she (“Mandy”) was upset and told her “I never seen it, I never seen anything”.

[19] On October 11, 2011, William Seeley was working with Thames Emergency Medical Services (“EMS”) and at 8:20 p.m. was dispatched to a motor vehicle collision on Katesville Drive. Mr. Seeley and his partner, Paul Vandyk, was the second EMS crew on scene. Mr. Seeley was directed to a female patient that was located beside a pick-up truck that had come to rest in the northbound ditch against a tree. He approached Ms. Stevens and attended to her injured ankle and then took her to the ambulance. When Ms. Stevens was asked what had occurred, she informed Mr. Seeley that she was driving home before the collision occurred. Mr. Seeley noted that that during this initial interaction Ms. Stevens appeared to be alert and orientated. From the EMS assessment, Mr. Seeley noted that Ms. Stevens had no trauma to the head or her neck area and the neurological status assessment was in the normal range.

[20] Mr. Seeley testified that while he was treating Ms. Stevens in the ambulance, she repeatedly stated to him: “I shouldn’t have been drinking”. He did not detect any odour of alcohol on her breath or any other visible signs of impairment. They left the scene at 9:00 p.m., and arrived at the Strathroy General Hospital at 9:09 p.m. His partner, Mr. VanDyk also did not recall Ms. Stevens displaying any visible signs of impairment.

[21] On the evening of October 11th, 2011, Officer Kyle Dilks was on general law enforcement duties and was dispatched to a motor vehicle collision on Katesville Drive. At 8:55 p.m., Officer Dilks arrived on scene and spoke with Officer Reid, who informed Officer Dilks that he was to ride in the ambulance with a female who had been injured as a result of the motor vehicle collision. Officer Dilks testified that he was informed by EMS personnel that they detected an odour of alcohol on Ms. Stevens, (which was not presented in evidence by any EMS witness). Officer Dilks neither noticed any signs of impairment nor the odour of alcohol on Ms. Steven’s breath, although he added that he did not get proximate to her.

[22] Upon entering the ambulance, Officer Dilks introduced himself to Ms. Stevens and provided her with a police caution. Officer Dilks notified Ms. Stevens that, at this time, she was not being charged with an offence and that she was not required to say anything to the officer. Officer Dilks then asked Ms. Stevens about the events leading up to the motor vehicle collision. Officer Dilks testified that Ms. Stevens kept apologizing for wasting his time; she would look down or look away from the officer; and she would begin to cry. Officer Dilks was of the opinion that Ms. Stevens understood the questions being asked of her and that she was being purposefully evasive. In cross examination, Officer Dilks explained that he did not view a person’s silence as being evasive.

[23] In response to some of the officer’s questions, Ms. Stevens advised that before the collision she had left her friends place to go home and that she has been at her friend’s place all day. [^1] When the officer asked about the collision, Ms. Stevens stated that she could not remember the specific details of what had occurred prior to the collision. When the officer asked if she had consumed any alcohol that evening, Ms. Stevens did not admit to drinking alcohol but did state to the officer, “I’m usually the one that stops people like me, where were people to stop me?” Later at the hospital Ms. Stevens informed Officer Dilks that she had consumed three alcoholic beverages throughout the day, being: a Monster brand Vodka drink in a tall can; and two tall boy cans of beer. Ms. Stevens added that she had consumed an alcoholic beverage not long before leaving her friend (Rebecca’s) residence. Officer Dilks specifically recorded the following statement from Ms. Stevens at the hospital: “Usually I’m usually one that stops people from doing this, the one time I forget, look what happens”.

[24] At 9:33 p.m. Officer Dilks provided the breath demand. At the time of reading the demand for breath samples, Ms. Stevens began to interrupt the officer and was notably agitated and uncooperative. The officer believed that Ms. Stevens’ actions represented a deliberate attempt to stall the breath proceedings. Given the totality of the officer’s observations from the scene, and her conduct in the hospital, Officer Dilks arrested Ms. Stevens for impaired operation of a motor vehicle.

[25] Officer Pincombe is an officer with the Strathroy-Caradoc Police Service and was the qualified breath technician who attended at the Strathroy General Hospital for the purposes of taking samples of breath in relation to this investigation. At 10:08 p.m., after having set up the approved instrument, Officer Pincombe provided Ms. Stevens with the breath demand, which she indicated she understood. The Officer noted that Ms. Stevens was visibly upset and crying. At 10:14 p.m., Ms. Stevens provided a suitable breath sample into the instrument with the result of 77 mg of alcohol per 100 mL of blood. Given the breath reading, Officer Pincombe did not request a second breath sample. Officer Pincombe did not note any odour of alcohol. Ms. Stevens was later released unconditionally from police custody with a three-day driver’s licence suspension.

[26] On October 11, 2011, Ms. Stubbs was employed at Strathroy General Hospital as a Medical Laboratory Technologist. At 9:50 p.m. on October 11, 2011, at the behest of the physician-on-duty, Ms. Stubbs collected two blood samples from Ms. Stevens for medical purposes, which she deemed were suitable pursuant to her training and experience.

[27] On October 11, 2011, both Officer Williams (Technical Collision Investigator) and Officer Geoff Royer (Collision Reconstructionist) attended at the scene for the purpose of investigating the motor vehicle collision. Officer Williams testified that both he and Officer Royer cooperatively conducted their analysis of the collision site, and from that analysis, completed the Technical Collision Investigative Report.

[28] Officer Williams made the following observations at the scene of this motor vehicle collision, including:

(1) Kateville Drive is a straight, level flat roadway;

(2) Kateville Drive was noted as bare, dry and in good condition on the evening of October 11th, 2011;

(3) The posted speed limit for Kateville Drive is 80 km/hr;

(4) The tractor’s headlight switch was found to be in the “on” position;

(5) The tractor’s rear brake lights, hazard lights and reflective tape (located on the roll bars and measuring 2” wide by 9” tall) were all made of light reflecting material;

(6) The tractor had a white spotlight on the back of the tractor, facing behind the tractor; and he conducted a full examination of all of the tractor’s light bulbs;

(7) There was no evidence of any mechanical malfunction in Ms. Stevens’ truck;

(8) The only evidence of evasion by the pickup truck was at the last second, at or near the moment of impact, in which the truck began to sweep towards the east-bound lane of Kateville drive, with no braking evidence, and;

(9) After reviewing 100m of roadway in advance and to the point of impact, officers concluded that there was no evidence of any braking by the truck in advance of the collision.

[29] In cross-examination, Officer Williams agreed that if the tractor had been properly illuminated, the accident could have been avoided.

[30] As part of the Accident Reconstruction Team’s analysis of the collision, Officer Royer conducted a Crash Data Retrieval (CDR) from Ms. Steven’s 2008 Dodge Ram pickup truck. Officer Royer found the crash data module which he seized from the truck to be undamaged and in good working order. Officer Royer was satisfied that the data he retrieved during his CDR analysis was accurate and reliable.

[31] Officer Royer’s CDR analysis provided the following additional information regarding this motor vehicle collision, including: all system warning lamps were recorded as being off, indicating that there were no internal problems within the truck; the speed of Ms. Stevens’ truck five seconds prior to impact was approximately 109 km/hr; the speed of Ms. Stevens’ truck at 1.3 seconds before the moment of impact was approximately 112 km/hr; the speed of the truck at the moment of impact was approximately 108 km/hr; the driver of the truck took her foot off the gas pedal at 0.6 seconds before the moment of impact; and braking occurred at 0.4 seconds before the moment of impact. Both Officers William and Royer agreed that based upon their analysis this was an avoidable collision.

[32] On October 25, 2011, Officer Reid applied for a search warrant to obtain Ms. Stevens’ medical records as the blood that had been collected on October 11th had been disposed seven days after it had been collected in accordance with hospital policy. [^2]

[33] Officer Reid also testified about distances between different locations identified in this case and the scene of the collision as follows: 2.9 km: the distance from Curtis & Drew Wilson’s residence [2799 Katesville Drive]; 800m: the distance from the Rebecca Hastie Residence [2375 Katesville Drive]; and 400m: the distance from the Melvin Wilson residence [2311 Katesville Drive].

[34] Dr. Karen Woodall of the Centre of Forensic Sciences was qualified to give expert evidence as a forensic scientist, with an expertise in the absorption, distribution and elimination of alcohol and drugs in the human body; and the pharmacological and toxicological effects of drugs and alcohol. Dr. Woodall was also qualified in the theory and operation of approved instruments; including the Intoxilyzer 8000C.

[35] On November 3, 2011, Dr. Woodall received a request from Officer Reid for a toxicological opinion based upon the breath test and hospital records. Dr. Woodall had reviewed both the medical records, notes and the standard operating procedure for the toxicological analysis of blood conducted at Strathroy General and testified that she had no concerns with regards to the validity and accuracy of the results; noting that the toxicological analysis of the blood had been repeated to further confirm the accuracy of the results. Dr. Woodall confirmed that the blood analysis was conducted using “plasma”; noting that if the analysis was conducted in whole blood the readings would have been higher. On a review of the toxicological analysis of the blood records completed at Strathroy General Hospital, Dr. Woodall was able to come to an opinion that at the time of driving, Ms. Stevens would have had a blood alcohol concentration of 86 to 116 mg of alcohol in 100 mL of blood.

[36] Dr. Woodall also noted that the toxicological analysis of Ms. Stevens’ urine, which was taken at 3:00 a.m. on October 12, noted the following substances: cannabinoids, cocaine, methadone and morphine.

[37] With regards to presence of cocaine, Dr. Woodall noted that the urinalysis test for the cocaine metabolite has a “half-life” of 24 hours. Thus, based upon the urinalysis, Ms. Stevens had consumed an unknown quantity of cocaine within 24 hours of the collection of the sample. Dr. Woodall testified about both stimulant and crash effects from the consumption of cocaine. The crash effect would appear at least 12 hours after the person had consumed the cocaine and Dr. Woodall described the impairing effects of the “crash phase”. In cross-examination, Dr. Woodall did concede that the timeframes provided are approximate and that she would not be able to precisely predict exactly when this “crash phase” would occur in an individual or in Ms. Stevens’ specific situation.

[38] Dr. Woodall noted that from her review, including the alcohol test records that the approved instrument was in proper working order at the time that the breath sample was collected. Based upon the breath test collected, Dr. Woodall was able to do a “read back” to determine Ms. Stevens’ blood alcohol concentration at the approximate time of the collision to be between 70 to 110 mg of alcohol in 100 mL of blood.

[39] Dr. Woodall found that the result from the blood sample, which was expected to be higher, is consistent with the breath sample that was also obtained that evening. Dr. Woodall noted that the approved instruments are accurate, but are calibrated to underestimate a person’s blood alcohol concentration. The approved instrument is calibrated to underestimate the breath readings because the results are used for “evidential purposes”. Dr. Woodall noted that while breath analysis is a very accurate method for determining a person’s blood alcohol concentration, blood is noted as the “gold standard” as it is a direct measurement of an individual’s blood alcohol concentration. In her testimony, Dr. Woodall differentiated between the concepts of tolerance and degrees of impairment.

Positions of the Parties

[40] With respect to the Charter application, the Crown submits that judicial review of the facial validity of a search warrant involves a common sense review of the cumulative effect of all the information provided. Correspondingly, there is room for reasonable inferences to be made by the issuing justice and he or she can rely upon the information provided and everyday experience; including the inference that a routine hospital procedure in the treatment of accident victims would include taking of a blood sample for medical purposes.

[41] The Crown submits that the officer is entitled to draw inferences and make deductions based upon their experience. At the time he prepared the information to obtain, Officer Reid had over 9 years of experience as a police officer; including his having investigated more than 20 impaired driving related motor vehicle collisions. The Crown submits that based upon the totality of all the information provided in the information to obtain there are ample grounds to support the test for a “credibility based probability” and Ms. Stevens has failed to satisfy her required onus of proving that there was no basis for this authorization.

[42] The Crown submits that there has been no breach of the applicant’s s. 8 Charter rights. However, even if there was a breach this evidence is non-conscriptive evidence which is highly reliable and essential to the charge of exceed 80 mg of alcohol in 100 mL of blood causing death. The breach is as best a good faith breach and is not so serious as to warrant exclusion under s. 24(2) of the Charter.

[43] It is the Crown’s position that given the evidence at trial, including the medical records, that the offences have been proven beyond a reasonable doubt. Even if the medical records seized by police were to be excluded, the breath reading combined with the expert evidence, and all of the facts proves that Ms. Stevens’ ability to operate a motor vehicle was not only impaired, but was significantly impaired at the time of the fatal collision. The Crown submits that the essential elements of dangerous driving have also been established beyond a reasonable doubt.

[44] The defence submits that the justice of the peace that issued the warrant did not have sufficient, credible and reliable evidence to find reasonable and probably grounds to believe that an offence had been committed at the specified time and place alleged.

[45] The defence submits that the admission of consumption of alcohol at some time is not evidence upon which the justice could determine that a search warrant should issue in the face of evidence that the accused had no odour of alcohol, no other signs of impairment, and passed the breath sample test. The inference to be drawn from the ITO is that the police had no reasonable and probable grounds to charge the accused with impaired driving or excess blood alcohol offences on the night of the collision.

[46] The defence argues that scant information in the warrant points away from good faith error on the part of the police officer who committed the breach. It is submitted that there is a high expectation of privacy in a patient’s hospital records. Although there is societal interest in a trial on the merits the court ought not to condone Charter violations that represent a significant invasion of protective rights and the evidence ought to be excluded under ss. 8 and 24(2) of the Charter.

[47] With respect to the substantive offences, the defence submits that the Court find reasonable doubt alone from the accused’s breath readings at the hospital which were under the legal limit. In addition, none of the police officers, attendants, or hospital staff that were in close proximity to the accused smelled alcohol on her breath or noticed any signs of alcohol impairment. The only evidence of alcohol consumption was the accused’s admission and the acknowledgement of her friend that the accused had consumed one beer at her residence prior to getting into her truck.

[48] Although there was evidence of methadone, marijuana, and cocaine in the accused’s blood, Dr. Woodall could not opine that the accused was impaired by any of these drugs at the time of the collision. It is submitted that even if the court finds the hospital record evidence to be admissible the Crown has still failed to prove beyond a reasonable doubt that the accused was impaired or over the legal limit at the time of the collision, given the difference in readings between the breath and blood tests and the total lack of indicia of impairment observed by any other witness.

[49] The defence submits that there is no evidence of dangerous driving on the part of the accused at the time of the collision. No witness described any erratic driving behaviour. While Ms. Stevens may have been speeding, albeit not excessively, and she may have consumed some alcohol, given the operation of the tractor, the road conditions, and her attempt to avoid a collision at the last second, it is submitted that dangerous driving has not been established beyond a reasonable doubt.

Legal principles

[50] First, in addressing the application to exclude the evidence of the hospital records, s. 8 of the Charter states:

Everyone has the right to be secure against unreasonable search or seizure.

[51] The jurisprudence provides that a warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. In the event of a warrantless search, the onus is on the Crown to rebut the presumption of unreasonableness. As there was a judicially authorized warrant, it is trite law that the onus rests on the applicant to establish a breach of her Charter rights.

[52] In conducting my analysis of the decision of the authorizing justice, the scope of review is that set out by Sopinka J. in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.J. No. 115, (S.C.C.) at 188:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[53] It is clear that on a s. 8 Charter application, the court reviewing a search warrant Information to Obtain (“ITO”) does not stand in place of the justice of the peace who issued the warrant. The test is whether there is at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. The properly circumscribed limits of a review were also summarized by the Court of Appeal in R. v. Mahmood, 2011 ONCA 693, at para. 99. See also R. v. Morelli, 2010 SCC 8, at paras. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59; Garofoli, at p. 1452; and R. v. Wiley¸ 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263, at pp. 273-274.

[54] In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts:[^3]

(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 558, at para. 45. (aff’d, 2011 SCC 32).

(2) [T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application”: R. v. Nguyen, 2011 ONCA 465, at para. 57.

(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) at para. 135:

The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168; R. v. Chan, 1998 CanLII 5765 (ON CA), [1998] O.J. No. 4536 at para. 4, (C.A.);

(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”: Re Lubell and the Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p. 190; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364;

(5) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.

(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and “need not include every minute detail of the police investigation”: C.B.C. v. A.-G. for New Brunswick (1991), 1991 CanLII 50 (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470;

(7) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case: R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213, “or even on a balance of probabilities”: R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds “are not proof absolute” though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.

(8) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case. “There is no fixed formula for what constitutes reasonable grounds to believe. The concept of reasonable grounds involves the application of common sense as well as practical and non-technical principles”: R. v. Philpott, [2002] O.J. No. 4872, (Sup. Ct.) at paras. 85-87.

(9) The ITO must raise credibly-based probability that the search will produce evidence of a crime. Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. A non-exhaustive guide was provided by Cromwell J.A. (as he then was) in R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.).

(10) It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request” for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320.

[55] The affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was amply described in the Cunsolo case.

[56] A court considering the issuance of a search warrant is entitled to draw reasonable inferences: R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20, 27; R. v. Sanchez (2004), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Gen. Div.), at pp. 365, 370.

Analysis: Sections 8 and 24(2) of the Charter:

[57] I am cognizant that the scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could - not would - have issued.

[58] There is a significant obligation on an affiant to be frank, fair and honest in the ITO. In assessing the validity of a search warrant, any improperly obtained evidence must be expunged from the ITO before the validity of the warrant can be properly assessed. A reviewing court may then consider deficiencies in the ITO relating to the presence, misstatements, overemphasis or a failure to mention material facts, or misleading information. Any or all of these deficiencies can lead to a finding that the warrant is invalid.

[59] For this analysis, the relevant segments of the two-page Appendix “A” in support of the ITO includes the following:

An EMS worker approached me at 2050 hours and explained that the female driver, Stevens was in the ambulance and has admitted to consuming alcohol.

PC Dilks at 2058 hours rode in the ambulance to the Strathroy Middlesex General Hospital where he was able to observe some of the treatment received by Stevens. PC Dilks noted the absence of the odour of alcohol on the breath of Stevens during her response to standard medical questions and the absence of any other signs of alcohol impairment while in the ambulance. Stevens indicated that she had consumed one can of ‘Monster’ Vodka, and two ‘tall boy’ cans of beer. Stevens indicated that her last alcoholic beverage was consumed not long prior to leaving her friend’s residence.

At 2137 hours, PC Dilks arrested Stevens for impaired operation of motor vehicle due to reasonable grounds to suspect due to omission that alcohol was consumed prior to collision. Rights to Council read.

At 2205 hours, breath sample provided. The sample provided a registered reading of 77 milligrams of alcohol per 100 ml. of blood respectively. No second sample was taken.

At 2218 hours, Stevens was released unconditionally from police custody and issued a 3-day driver’s license suspension for offence. Driver’s license seized.

Due to lack of evidence to the contrary, I the informant, feel that this collision occurred due to the driver of the Dodge pick-up truck operating the motor vehicle while her ability was impaired due to the consumption of a quantity of an alcohol beverage. Amanda Stevens was the driver of the 2008 Dodge Ram pick-up truck, Ontario license plates of 9021YV, a motor vehicle at the time of the alleged offence.

I, the informant, believe by seizing the medical records of Amanda Stevens complied during her treatment on October 11, 2011 will provide material evidence in the prosecution of Amanda Stevens for the offences of:

(1) Impaired operation of a motor vehicle cause death, contrary to s. 255(3); and

(2) Exceed 80 milligrams blood alcohol content/motor vehicle/cause accident with fatality, contrary to s. 255(3.1).

[60] In support of the specific search warrant in this case, the Crown relies, in part, on the Court of Appeal’s decision in R. v. Day, [1998] O.J. No. 4461, when reviewing the wording of search warrants in the context of an impaired driving investigation. In my view, while the case is instructive, the Court of Appeal’s endorsement of the search warrant in Day and the grounds in support of the ITO are clearly distinguishable on its facts.

[61] Similarly, the Crown argues that another case involved a situation wherein Doherty J.A. reviewed the wording in an ITO to secure evidence from a hospital related to an impaired driving prosecution in R. v. Colbourne, 2001 CanLII 4711 (ON CA), [2001] O.J. No. 3620. In reviewing the cumulative value of all of the information presented in the ITO, including an unexplained motor vehicle collision on a dry, flat roadway – strong odour of alcohol noted, blood shot eyes and flushed face, Doherty J.A. provided the following comment at para 37:

…In my view, even if the overheard reference to the blood/alcohol level is excised, the facts relied on in the second information provided adequate grounds for the issuing of a warrant to seize the vial of the appellant's blood. The description of the appellant's driving immediately before the accident, the description of the accident itself, the absence of any apparent "innocent" explanation for the accident, and Constable Henry's observations of the appellant at the scene provided a basis upon which a Justice of the Peace acting judicially could grant the warrant.

[62] Again, the facts in Colborne are entirely distinguishable from the case at bar as there was clearly articulable and discernible signs of impairment addressed in the ITO from both the observations of the officer and civilian witness. Crown counsel suggests that the unexplained collision along with the other factors found in the ITO in this case were sufficient to ground the warrant. I note that in both of the other cases, the affiant had evidence of the appellant’s driving before the accident and observations of impairment over and above an innocent or unexplained rationale for the accident. Such grounds appear to be lacking in this case.

[63] On this review, I note that the affiant stated: “An EMS worker approached me at 2050 hours and explained that the female driver, Stevens was in the ambulance and has admitted to consuming alcohol. …At 2137 hours, PC Dilks arrested Stevens for impaired operation of motor vehicle due to reasonable grounds to suspect due to omission that alcohol was consumed prior to collision” (emphasis added). Frankly, I do not understand this sentence. There was no attempt to clarify the meaning of the word “omission” before the justice of the peace or on this review.

[64] The affiant stated: “PC Dilks noted the absence of the odour of alcohol on the breath of Stevens during her response to standard medical questions and the absence of any other signs of alcohol impairment while in the ambulance.” This is an accurate statement based on the evidence known to the officer at the time but does not, in of itself, advance any grounds for reasonable belief.

[65] The affiant stated: “The sample provided a registered reading of 77 milligrams of alcohol per 100 ml. of blood respectively. No second sample was taken”. This is an accurate statement based on the information known to the officer at the time. However, it begs the question as to how the affiant believed that the hospital records to be secured could afford evidence of the charge of driving a motor vehicle with blood alcohol over 80 mg in 100 mL of blood in in the face of the results of the first breath sample and the breath technician’s decision to totally abandon the taking of the second reading based on the first breath test results.

[66] Lastly, the affiant provided conclusory statements in the ITO that due to the lack of evidence to the contrary the collision occurred due to driver impairment. In my view, this does not provide sufficient reasonable grounds upon which a judicial officer could have issued a warrant. I cannot fathom that the affiant’s belief in the ITO based on the “lack of evidence to the contrary” alone or in conjunction with other spartan grounds could form any basis for reasonable grounds without anything more. One need not greatly imagine how such an approach would lead to the watering down of properly credible based grounds in support of a warrant to search. Similarly, if an unexplained accident or incident standing alone is sufficient without other discernible grounds, it would open a Pandora’s box by facilitating such intrusive warrants to be issued for these unexplained situations or for the lack of further investigation.

[67] Given the results of the one breath test, the grounds for the warrant to secure evidence with respect to drive a motor vehicle with blood alcohol over 80 mg in 100 mL of blood was a fishing expedition. On its face, and taking a cumulative approach, with respect to the over 80 mg. count, the ITO was so deficient that it did not contain evidence upon which the justice could determine that a search warrant should issue.

[68] With respect to the impaired driving count, the ITO is equally insufficient. While there is some admitted consumption of alcohol, the timing of Ms. Stevens’ drinking was not ascertained other than the accused’s last alcoholic beverage was consumed not long prior to her leaving her friend’s house. The fact of the collision and its tragic aftermath is a consequence and is some information, but in my view lacks sufficiency when considering all of the information presented by the affiant to the issuing justice.

[69] When excising all the misleading information, in my opinion, all of the remaining information considered as a whole did not provide a reliable basis upon which the justice of the peace could conclude that the police had reasonable grounds to believe that the accused had committed the offence of impaired driving and driving a motor vehicle with blood alcohol over 80 mg in 100 mL of blood, and that the hospital records could afford evidence of the commission of those offences.

[70] I find that Ms. Stevens has established a breach of her s. 8 Charter rights.

Section 24(2) of the Charter

[71] Section 24(2) of the Charter states:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[72] In the seminal case of R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 the Supreme Court of Canada held that the purpose of s. 24(2) is to maintain the good repute of the administration of justice. The provision focuses not on immediate reaction to the individual case, but rather on whether the overall repute of the justice system. The disrepute is to be considered by the court in its role of maintaining the integrity of, and public confidence, in the justice system. It is an objective inquiry and it asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[73] The approach to s. 24(2) requires consideration of the long-term, probable effect of admission of the evidence from the perspective of society at large. The focus is not on punishing the police or compensating the accused.

[74] The onus is on the applicants to establish on a balance of probabilities that the admission of the evidence seized would bring the administration of justice into disrepute.

[75] In Grant, the court stated that ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. In R. v. Harrison, 2009 SCC 34, [2009] 2 SCR 494, the Supreme court points out that a reviewing court should be concerned or disassociated itself where the police knew or ought to have known that their conduct was not Charter-compliant.

[76] The Supreme Court outlined the following three lines of inquiry to take into consideration when determining whether the admission of the evidence brings the administration of justice into disrepute. They are:

(1) the seriousness of the Charter-infringing state conduct;

(2) the impact of the breach on the Charter-protected interests of the accused; and

(3) society’s interest in the adjudication of the case on its merits.

[77] The main concern of the court is to preserve public confidence in the rule of law and its processes. Even a finding that a Charter breach falls at the most serious end of the spectrum is not dispositive of the s. 24(2) inquiry. An accurate assessment of the seriousness of a Charter breach requires an inquiry into where the police conduct falls on the continuum between good faith, lack of good faith, and bad faith.

[78] In considering the seriousness of the Charter-infringing state conduct, the court must ensure that they are not, in effect, condoning state deviation from the law. This is to be determined by looking at the breach on a spectrum where inadvertent or minor violations will be viewed differently from wilful or reckless disregard of Charter rights.

[79] The impact on any breach on the Charter-protected interests of the accused calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The court should assess whether any breach, if there was one, was “fleeting or technical” as opposed to “profoundly intrusive”. This factor does not assess the extent to which the state intruded on the individual generally, but only the extent to which the state intruded on the individual beyond any intrusion that was lawfully permitted. The seriousness of the intrusion upon the rights of an accused may vary greatly.

[80] In considering society’s interest in the adjudication of the case on its merits, the court is to consider “whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion.” Further, the court should consider the reliability of the evidence and the nature of the right infringed.

Application of these principles to the present case

[81] As mentioned, there are three lines of inquiry at play under section 24(2) of the Charter. I must consider each of the three factors and then determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. Each factor is of equal import.

The seriousness of the Charter-infringing state conduct

[82] The question under this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute. Police conduct that show a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law.

[83] In addressing the s. 24(2) question, Doherty, J.A. in Colborne, provided an analysis for the blood samples seized at the hospital in an impaired driving cause death case. Despite the presence of s. 8 Charter breach due to insufficient information to obtain, the decision reflected the “Collins” s. 24(2) analysis; and it appears to be premised on whether the impugned evidence was conscriptive or non-conscriptive. Indeed, the former “Collins” Charter analysis has now been displaced by the approach proffered in the seminal case of Grant.

[84] It is true that hospital records and blood samples taken from an accused may be readily available and eventually obtainable in the normal course of treating an injured party. It is evident that the hospital records secured in this case are non-conscriptive evidence. However, that does not mean that the police can develop their investigation with the knowledge that such records may be available absent proper grounds for belief. In other words, such blood samples or hospital records cannot be used to buttress an investigation where the indicia for the grounds to believe are lacking.

[85] In Grant, the court at para. 75 elaborated this factor by stating:

Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[86] An officer’s subjective belief that the accused rights were not affected does not make the violation less serious unless the belief was reasonable.

[87] Here, I am persuaded that the police did not have any basis for the records from the outset and were reckless with respect to the accused’s constitutionally protected rights. While I would not find any bad faith, per se, the officer disregarded the rights of the accused in obtaining records without any grounds and with what appeared to be a fishing expedition to substantiate these serious allegations.

[88] I am left with a concern about the police conduct in this case as they appeared to have taken a ‘second kick at the can’, notwithstanding the abandonment of the second breath sample, all but conceding that there was no basis to continue with the blood alcohol over 80 mg in 100 mL investigation and subsequently releasing the accused unconditionally. Thereafter with insufficient grounds, there is an attempt to seek hospital records to buttress this charge, without further investigation.

[89] As for the impaired driving allegation, it is clear that there was no urgency. The hospital records were safe and secure. Had the police conducted a further investigation regarding the accident reconstruction, some evidence of driving, speed analysis and all of the circumstances, perhaps there would have been sufficiency of reasonable grounds to search for the records. However, in my view, to promote the ITO as the police did in this case was a shortcut, expediency and was neither fleeting nor technical.

[90] In Grant, the Supreme Court described this line of inquiry as “the danger that admitting the evidence may suggest that Charter rights do not count”. The conduct of the police in this case falls into this category. In my opinion, the conduct of the police with respect to the accused’s Charter rights was serious and this factor favours exclusion.

The impact of the Charter violation on the Charter-protected interests of the accused.

[91] The second branch of the test is outlined in Grant at paras. 76 & 78:

...focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter right however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity is more serious than one that does not.

[92] While it is true that hospital records do not involve intrusion into the personal space of the accused, hospital records are nonetheless private and confidential. Ever mindful of the ratio in Colborne, in this case, based on a fundamental breach of the accused’s charter rights ab intio, that is to say the warrant sought for the particular charges being advanced, after having abandoned the breath testing, the impact of the violation on the Charter-protected interests of the accused was serious and this factor favours exclusion.

Society’s interest in the adjudication of the case

[93] In considering this factor, the question to be asked is "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion." The reliability of the evidence is an important factor in this line of inquiry. If the breach in question undermines the reliability of the evidence, that militates in favour of exclusion. In Grant, the Supreme Court discussed how the importance of the evidence to the Crown's case is a relevant consideration:

The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[94] This aspect of the inquiry considers whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. As the Supreme Court stated in Grant:

(1) Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s ‘collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.’ … Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

(2) The Court must ask itself “whether the vindication of the specific Charter violation through exclusion of the evidence exacts too great a toll on the truth-seeking goal of the criminal trial.

[95] It is true that without the records, the expert’s opinion all but is negated and the evidence is essential to two counts in the indictment. Society’s interests in the prosecution of those who voluntarily consume alcohol or drugs and choose to drive a motor vehicle and cause carnage on public highways is well-known. This factor favours admission.

[96] In balancing all of the Grant factors, I am satisfied that the shortcut taken by the officer to buttress the case without any further investigation and absent any urgency, coupled with the bald assertion that because there was an absence of any reasonable explanation without other indicia, significantly impacted the Charter protected rights of the accused. The grounds for belief was wholly deficient at its core, in particular when I consider the request for the records to support the particular count alleged of driving a motor vehicle with blood alcohol over 80 mg in 100 mL of blood. While this is a close call, I conclude that the evidence of Ms. Stevens’ hospital records ought to be excluded.

Analysis:

Drive over 80 mg in 100 mL of blood causing death

[97] It is conceded by the Crown that if the medical records seized by police are to be excluded, then there would be insufficient evidence to prove the charge of drive with blood alcohol level exceeding 80 mg in 100 mL of blood beyond a reasonable doubt. Indeed, on the evidence that I do accept, I am not satisfied that the Crown has met its burden beyond a reasonable doubt. This count is dismissed.

Impaired driving causing death:

[98] The cause of death in this case was not in issue. The post-mortem examination confirms that Mr. Glenn Wilson died as a result of a motor vehicle collision after his tractor was struck from behind by a pick-up truck. Mr. Glenn Wilson was observed to be “vital signs absent” at the scene; with the immediate cause of death noted as “multiple trauma”.

[99] The leading case on causation is found in R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 SCR 506; an accused’s act must be at least a contributing cause of death outside the de minimus range. The issue in any case will be whether the dangerous and unlawful acts of the accused are a “significant contributing cause” of the victim’s death: R. v. Maybin, 2012 SCC 24, [2012] S.C.J. No. 24 at para. 20. The accused’s actions do not have to be the most direct, immediate or predominate cause of the injuries. Causation issues are case specific and fact driven.

[100] The test for causation under both ss. 255(3) and 255(3.1) is whether the accused person’s impaired condition was at least a contributing cause outside the de minimus range: R. v. Stephens, [1991] O.J. No. 85 (C.A.).

[101] An accused may be convicted of impaired operation cause death where the impaired driving ability is evidenced by the driver’s conduct, lack of judgment or failure to react while driving: R. v. White, 1994 NSCA 77, [1994] N.S.J. No. 149 (C.A.). Contributory negligence on part of the victim is irrelevant: R. v. Kippax, 2011 ONCA 766, [2011] O.J. No. 5494 (C.A.) at paras. 21-28. The Crown need only prove that an accused person’s conduct, being the voluntary consumption of alcohol paired with the accused’s choice to drive, was a significant contributing cause of the death: R. v. Nette, 2001 SCC 78, [2001] 3 SCR 488.

[102] In written submissions, the defence submits that even if Crown counsel can establish some impairment on the part of the accused, he has not proved that this impairment caused the collision. At the time of the collision, the tractor was being operated on the travelled portion of a dark country road without rear lights or slow moving vehicle sign. The accused was also travelling on paved portion of the road. At the last moment when the tractor was noticed, the accused attempted to avoid it. The defence argues that nothing unusual was observed by anyone concerning her driving other than she may have been operating her vehicle at 102 km/hr an hour in an 80 km/hr zone.

[103] During oral submissions, and in direct response to my query, the defence conceded that causation had been established by the actions of the accused driving her motor vehicle and striking the tractor causing the unfortunate death of Mr. Wilson without qualification. In my view, factual causation has been established. Of course, I understand that the defence has and continues to dispute any link to the legal causation argument as a result of any alleged impaired driving or dangerous driving being established beyond a reasonable doubt.

[104] Based on the totality of the evidence and the reconstruction evidence, and ever mindful that I do not leap ahead to the consequences of the accused’s actions before determining the substantive issues, the question remains whether legal causation has been established by the accused driving her motor vehicle with the requisite level or finding of impairment, (or driving dangerously), should I so determine.

[105] Overall, I accept the evidence of all of the Crown witnesses, while remaining alert to the potential for some vested interest in the outcome of this case. When I consider their observations of the tractor and its lighting, I find that, with the exception of Melvin Wilson, whose testimony was confusing and unclear with respect to the tractor’s lighting system and what he observed, the evidence of the deceased’s relatives and the independent civilian witnesses, save one, were direct, candid and credible.

[106] I do not find Rebecca Hastie’s evidence credible and reliable where it conflicts with the accused and find that she was not forthright and tended to minimize her own and Ms. Stevens’ alcohol consumption or their activities on the evening in question. Ms. Hastie demonstrated a bias in favour of her friend and was evasive and terse in her responses.

[107] In this case, we have evidence of but one sample of breath from the accused. I am prepared to accept the breath sample as some limited evidence on the issue of whether the accused operated the motor vehicle while impaired causing death. Given the exclusion of the hospital records, there is no evidence of any illicit drug consumption or effect.

[108] Dr. Woodall was given a collision scenario, consistent with the facts of this case, and asked to give an opinion on an impaired driver’s ability to avoid a collision with another vehicle. Dr. Woodall’s evidence as to her analysis was largely unchallenged, indicating that, at the time of this fatal motor vehicle collision, Ms. Stevens’ blood alcohol concentration, based upon the uncontested breath reading alone, would have been between 70 to 110 mg of alcohol in 100 mL of blood at the time of the fatal collision.

[109] In Dr. Woodall’s opinion, impairment with respect to driving becomes significant at a blood alcohol concentration of 50 mg of alcohol in 100 mL of blood. At 70 mg of alcohol per 100 mL of blood, Dr. Woodall testified that she would expect a significant degree of impairment for things such as: divided attentions tasks (including driving); choice reaction time; judgment of speed and distance; and vision impairment.

[110] According to Dr. Woodall, a person with a blood alcohol concentration of 50 mg would have their ability to operate a motor vehicle significantly impaired by alcohol; noting that as a person’s blood alcohol concentration increased the significant impairing effects would also correspondingly increase. The defence did not adduce any other expert opinion in this trial and, in my view, did not challenge this expert’s opinion.

[111] The Crown submits that the evidence in this case, in particular Dr. Woodall’s opinion, has established that Ms. Stevens’ ability to operate her motor vehicle was significantly impaired due to her voluntary consumption of alcohol. As I understand Dr. Woodall’s testimony, anyone with a reading above 50 mg of alcohol in 100 mL of blood would be significantly impaired to operate a motor vehicle. This statement is made without specific individualized tolerance testing. I am not prepared to readily agree with her ultimate conclusion based on a scientific approach to impairment established by the breath reading alone in this case and the corresponding research or literature. When an individual generally might be impaired or in this case, if Ms. Stevens was impaired even with a certain minimum level of blood alcohol, it seems to me that opinion ought to be left to the ultimate trier of fact and not to the expert.

[112] Dr. Woodall’s scientific analysis and expert opinion is one factor in my overall assessment. Thus, with Ms. Stevens’ lowest reading of 70 mg of alcohol in 100 mL of blood, I accept Dr. Woodall’s opinion that a person with this reading would have difficulties in processing certain pieces of information as quickly and would affect divided attention tasks, choice reaction time; judgment of speed and distance and vision impairment. Dr. Woodall further opined that Ms. Stevens’ ability to operate a motor vehicle would have been significantly impaired.

[113] All that being said, it is not lost on me that at the scene no police officer or any other individual described Ms. Stevens displaying any visible signs of impairment. There was no evidence of any odour of alcohol on Ms. Stevens’ breath. She was released unconditionally from the police station with a 90-day licence suspension, albeit the police did not have the results of the accident reconstruction analysis. The evidence suggested that Ms. Stevens was very hysterical and some of the officers testified that they did not get close enough to her to make relevant observations. Often, the dearth of visible indicia exhibited from an individual, such as slurred speech, stumbling or the lack of an odour of alcohol on one’s breath are core considerations for a court to conclude that the requisite findings of impairment have not been made out, however that is not always the case.

[114] Ever mindful of the ratio in R. v. Stellato, (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), where the test for impaired driving is any degree of impairment from slight to great, it is the accused’s ability to operate a motor vehicle at the requisite time that must be considered. The roadway was straight, paved, bare and dry and there were no adverse weather conditions present. There was no evidence of mechanical malfunction. Ms. Stevens had her foot on the gas pedal of her truck up until approximately 0.6 seconds before the moment of impact and she did not begin braking until approximately 0.4 seconds before the moment of impact.

[115] It is true that Ms. Stevens did not display any of the visible signs of the typical indicia of impairment. However, there were other factors that provide that Ms. Stevens’ faculties to operate a motor vehicle were being affected by her voluntary consumption of alcohol; her reaction only a second or less at 102 km/hr – her admission that she did not see anything prior to the collision; failing to avoid the slow moving tractor that I find was visible on the roadway, and her admitted consumption of three alcohol beverages including two tall can beers. I am satisfied that her reaction time was affected by these numerous factors influenced by her alcohol consumption, and I accept Dr. Woodall’s expert testimony in this regard.

[116] When I consider the constellation of factors, I am satisfied beyond a reasonable doubt that the evidence supports my conclusion that Ms. Stevens’ impaired condition and her operating a motor vehicle was a contributing factor to the collision and Mr. Wilson’s death.

Dangerous driving causing death

[117] I have already reviewed the general principles of causation in this decision and need not repeat them. Similarly, I will continue to apply the proper principles of causation in my analysis of dangerous driving causing causing bodily harm or death.

[118] The leading case for dangerous driving is R. v. Hundal (1993), 1993 CanLII 120 (SCC), 79 C.C.C. (3d) 97, (S.C.C.). More recently, the elements of the offence of dangerous driving were reviewed by Cromwell J. in the Supreme Court of Canada’s decision of R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26 at para. 28; adopting the principles in R. v. Beatty, 1 SCR 49:

The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused's was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment.

[119] The Crown must prove the prohibited conduct, operating a motor vehicle in a dangerous manner resulting in death and a required degree of fault, namely, a marked departure from the standard of care that a reasonable person would observe in the circumstances.

[120] While excess speed alone is generally insufficient to meet the test required under the jurisprudence, here we have additional factors.

[121] The collision was observed by Mr. Gerald Dymond who was 200 feet from the roadway and had an unobstructed view of the collision. Despite it being approximately 8:00 or 8:15 p.m. in the evening, Mr. Dymond was able to see the tractor. He testified that at the time of the collision it was getting dark. Mr. Dymond testified that the tractor had a “work” white light illuminating to the rear of the tractor and in terms of brightness it was a “good” light. He was not sure of the status of the tractor’s headlights. Mr. Dymond saw the truck approach the tractor from behind and expected the truck to pass the tractor. I find Mr. Dymond’s evidence to be entirely credible and reliable.

[122] Mr. Dymond’s evidence that the tractor’s rear working light was turned on is confirmed by evidence from other witnesses. Specifically, the accident reconstruction team observed that the light switch for the tractor headlights was in the “on” position. Both Curtis Wilson and Melvin Wilson testified that if the headlights were turned on then either the four-way hazard lights or the rear work light would have also been turned on. From this evidence, it is reasonable to infer that the tractor’s rear working light was illuminated at the time of the collision.

[123] Photos of the tractor, as well as civilian witness descriptions of the tractor, all confirm that there was no “slow moving vehicle” sign on the tractor, although there was reflective tape on the rear of the tractor. The accident reconstruction team confirmed that the reflective tape on the roll bar would reflect the light of a vehicle’s headlights.

[124] As mentioned, Katesville Drive is a straight, level and flat paved roadway. The roadway was bare and dry and in good condition on the evening in question. There were no adverse weather conditions present. I accept the evidence of the accident reconstruction team witnesses who testified that there was no evidence of mechanical malfunction in Ms. Steven’s truck.

[125] I accept that there was lighting illuminated to the rear of the tractor along with the reflective tape being visible on the roll bar that would have been visible to oncoming traffic. While the tractor may not have been illuminated as brightly as a motor vehicle would be, given the time of the evening, the large size of the tractor, combined with some lighting and reflective tape present, I find that the tractor was visible on the roadway well before the one or less second period in which Ms. Stevens actually reacted to this tractor travelling at a slow speed in front of her.

[126] Equally significant, I accept the officer’s evidence that Ms. Stevens had her foot on the gas pedal of her truck up until approximately 0.6 seconds before the moment of impact; that there was no evidence of braking by Ms. Stevens at the scene of the collision; that Ms. Stevens did not begin braking until approximately 0.4 seconds before the moment of impact and while there was evidence of a sweeping motion by the truck, this was only started in the very few seconds immediately before impact.

[127] In the very short distance between Rebecca Hastie’s residence and the scene of the collision, a total of 800m, Ms. Stevens accelerated her vehicle to 108 km/hr (28 km/hr over the posted speed limit). In fact, the acceleration continued up until only about one second prior to the collision.

[128] I am satisfied that the excessive speed of Ms. Stevens’ vehicle was a significant contributing factor to the cause of this fatal motor vehicle collision with the slow moving vehicle visible with reflective tape and some degree of rear lighting, the dry conditions of the road, weather with dusk approaching, her inability to react to the tractor in front of her only a second or less at 102 km/hr, having rapidly accelerated to 30 km/hr over the limit within a distance of 800 metres; viewed objectively, the actus reus of the driving was dangerous to the public in all of the circumstances.

[129] In Roy, the Supreme Court reaffirmed the jurisprudence in this area in that proof of the actus reus of the offence without more cannot sustain a reasonable inference that the fault element has been established. As dangerous driving is a serious criminal offence, the fault element must be established.

[130] The mens rea element is whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances: Beatty at para. 48. It is the manner of driving and not the consequences that must be considered. Two questions come to mind. Would a reasonable person have foreseen the risk and taken steps to avoid it, if possible? Did Ms. Stevens’ failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in Ms. Stevens’ circumstances?

[131] I have considered Ms. Stevens’ voluntary statements to various individuals. While being treated by EMS at the scene, Ms. Stevens kept repeating: “I shouldn’t have been drinking.” While speaking with Officer Dilks in the ambulance, Ms. Stevens stated: “I’m usually the one that stops people like me, where were people to stop me?”; and at the hospital, Ms. Stevens also stated to Officer Dilks: “Usually I’m usually one that stops people from doing this, the one time I forget look what happens.” There is no evidence before me that the accused was either fatigued, inattentive due to oncoming traffic or headlights or was otherwise distracted, and none is suggested.

[132] On the evidence, I accept that the accused had the requisite mens rea with respect to her driving conduct and the risks involved. The statements made to EMS and Officer Dilks confirm Ms. Stevens’ awareness of her consumption of alcohol and the impact on her facility to drive a motor vehicle. In my opinion, Ms. Stevens should have been aware that her alcohol consumption, excess speed and other driving factors that evening would have compromised her ability to safely operate her motor vehicle.

[133] In applying the modified objective standard and drawing the proper inferences from the evidence, I am satisfied that this was not just a lapse in attention. I find that this was an avoidable collision, but for the actions of accused. I am satisfied that Ms. Stevens appreciated the risk and chose to undertake the risk and her driving conduct was a cause, at least beyond de minimis of the dangerous driving and the death of the victim.

[134] Based on the constellation of factors, in their totality, that the Crown has proven both the actus reus and mens rea for the offence and the accused’s manner of driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.

Conclusion:

[135] I am not satisfied beyond a reasonable doubt that the Crown has established Ms. Stevens’ guilt for the offences of drive a motor vehicle with over 80 mg in 100 mL of blood causing death. Ms. Stevens is found not guilty of Count 2.

[136] I am satisfied beyond a reasonable doubt that the Crown has established the essential elements of impaired driving causing death and dangerous driving causing death. I find Ms. Stevens’ guilty with respect to Counts 1 and 3 and convictions will be entered on the indictment.

Justice A. J. Goodman

Released: February 26, 2015

CITATION: R. v. Stevens 2015 ONSC 436

COURT FILE NO.: 11318

DATE: 2015/02/26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

V.

AMANDA STEVENS

REASONS FOR JUDGMENT

A. j. gOODMAN, j.

Dated: February 26, 2015

[^1]: The defence did not challenge the admissibility of the accused’s statements to the police and conceded voluntariness.

[^2]: The warrant to search was filed in these proceedings as Exhibit #1 of the Charter voir dire.

[^3]: I refer in part to Hill J.’s comprehensive analysis of the applicable law in the case of R. v. Ngo, [2011] ONSC 6676 (Sup. Ct.).