Court File and Parties
Court File No.: 887-14 Date: 2016-04-08 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Sarah Lepine, Defendant
Counsel: Andrew McDonald, for the Crown Peter Beach, for the Defendant
Heard: April 4-6, 2016
Before: Ray, j
Reasons for Judgment
[1] The defendant faced 6 counts but at the conclusion of the evidence, the Crown elected to only proceed with 3 counts. That decision was consistent with the evidence which did not support 3 of the counts. The 3 surviving counts 1, 3, and 5 are impaired driving, impaired driving causing bodily injury (Foster), and dangerous driving causing bodily injury (Foster) arising out of a single vehicle roll-over type collision on Wolfe Grove Road in Mississippi Mills on October 5, 2013. The defendant was driving, Henry, the owner of the car was in the rear passenger seat; and Foster who was her then boyfriend was in the front passenger seat.
[2] The defence initially filed a charter application to exclude blood tests from blood samples taken at the Almonte General Hospital at the request of the investigating officer. The Crown conceded the point and the blood tests and the blood samples were excluded. The defendant also filed a Garifoli application and seeks to have evidence of the Almonte and Ottawa Hospital blood test records excluded on the ground of lack of sufficiency of the ITO. The Crown accepted that the investigating officer be cross-examined on the application as part of his evidence; and that he be called to give his evidence last so as to establish a full factual foundation for his evidence and his cross-examination.
[3] Brian Foster was the front seat passenger of the car at the time of the October 5, 2013 collision, with the defendant driving and James Henry in the rear. He said that he and the defendant had been in a relationship and had a child together. He said that all three of them had been drinking for a day or so before the accident. They had all finished their shift at Grenville Castings at Perth at 11pm the previous evening, and had met up at Mr Henry’s house on Scotch Line Road where they partied. He said it was hard for him to say the quantities each had been drinking. He said he passed out. In the morning they all drove to Rideau Ferry to get more ‘booze’ at around 7am because they had run out. He did not think that any of them had slept. He said he had been drinking in the car. And “thinks all of us were drinking” in the car. Alcohol was involved before Rideau Ferry. He said the defendant had been drinking in the car. The defendant was driving the whole time as they continued to just drive around. He remembered being on Anderton Drive, and the defendant saying that she was tired. He suggested she stop so he could drive. She did not. The next thing, he saw that they were turning onto Wolf Grove Road going East. His next recollection was waking up in hospital. He said the defendant’s driving had been perfectly fine. Mr. Foster was cross-examined concerning his initial statement to the police in which he seemed to be vague and in places incorrect. He agreed that was the case, and said that the time he had been in love with the defendant and didn’t want to see any of them in trouble. He also explained that he had severe headaches at the time and had difficulty talking to anyone. He just wanted to stay in a darkened room. He said he had no negative feelings towards her but was now under oath, and was telling the truth. He confirmed that no police officer had been in touch with him since his statement.
[4] Mr Foster was quite badly injured in the accident with a head injury. He said that initially he was kept in hospital for about four days and discharged home but began feeling ‘weird’. He had very severe headaches and could not concentrate. He was questioned by Cst Paul at this time when he was suffering from headaches and clearly suffering from the head injury. He said he saw his doctor, and after a brain scan he was readmitted. Surgery involved drilling holes in his head to relieve the pressure from bleeding inside his skull. He was in hospital for a further four days, then discharged home. He was off work for a year. After the surgery he had one seizure which was apparently quite frightening but that has since been controlled with medication. He tried to go back to work at Grenville Castings (Magna) but they refused to hire him because of his head injury. So he decided to leave the area and went west where he remained until the day before the trial. He had been unaware of the preliminary enquiry.
[5] James Henry, the passenger in the rear was very softly spoken and could barely be heard at times while he gave his evidence. He owned the car the defendant was driving. He said that after finishing work at Grenville Castings in Perth at 11pm, Mr. Foster came to his house and went to get the defendant, his girlfriend at the time. When they returned he had a couple of glasses of whisky, beer or both. They all had drinks but he could not say what was consumed by whom. He was sleeping. They all got into his car about 9.30 or 10.00 am to go driving – ‘just to get out of the house’. The defendant was driving. Although he didn’t feel drunk, he didn’t drive because he had been drinking. He said he could not recall where they had been driving. He said he was in and out of sleeping, and vaguely recalls the crash. The next think they were on the roof and the car was sliding upside down. He recalls the defendant and Mr Foster bickering in the front seat. He was trying to lighten things up. He said the defendant might have taken her eyes off the road- he was not sure. He had no memory of the defendant veering across the road and was awakened by the car being on its roof. He had no idea how it came to be on its roof. He said there had been nothing wrong with the defendant’s driving. and he was sure she had been driving at less than 100 km/h.
[6] He said there was alcohol in the car but it was unopened and either in the back seat or in the trunk. They had not stopped to buy ‘booze’ anywhere. No one was drinking in the car. He said he was belted. He recalled after the crash, someone opening the car door so he could get out. He walked away, then went back to the car to help the defendant and Mr. Foster out as other people arrived on the scene.
[7] He said he sustained a cut on the top of his head requiring three sutures. He had no other injuries, although he did not return to work for a month because he felt shaken up. He returned to his fulltime employment.
[8] OPP Cst. Stephen McEravy was the first officer on the scene and saw the car engulfed in flames. He said he briefed OPP Cst Paul, after Cst Paul arrived on the scene. He saw no evidence of another car having been involved, and saw no evidence of skid marks. He said he observed alcohol on Mr. James’ breath at the hospital in Almonte.
[9] The evidence of the first person on the scene, Barry Parks, was read in from his preliminary enquiry evidence by reason of him being unavailable. He is deceased. Mr Parks had been driving east towards Almonte when he came upon the car upside down on the roadway with signs of fire. The traffic was light. He said he had seen no other cars proceeding in the opposite direction, and when he spoke to the defendant and asked her about the cause of the accident, she said ‘no’ to whether a deer had come out, and ‘no’ to whether she had seen any other car. Mr Parks had taken a number of pictures which were introduced into evidence, including two that were taken by another bystander while he was present. The photographs show a burned out car - totally destroyed by fire - upside down on the north shoulder of Wolfe Grove Road. It is a narrow shoulder and shows the car to be on the edge of the pavement adjacent to a large boulder. The photographs do not show any markings on the boulder consistent with an impact, but Mr. Parks in evidence had repeatedly referenced the car having struck the boulder. He clearly did not see the vehicle before it came to rest on its roof.
[10] Benjamin Cooper had been travelling east on Wolf Grove Road when he came across the vehicle upside down on the north side of the road, facing east. He stopped and was one of the first on the scene. He said he assisted another bystander in removing the occupants from the vehicle which was on fire. He recalled an interaction with one of the male occupants who was soaking wet from what he believed was perspiration. He was speaking but not able to move. He said he seemed delusional.
[11] Greg Gilmour, an off-duty Ottawa firefighter was eastbound on Wolf Grove Road with his family. He saw the burning upside down vehicle on the north shoulder and stopped to give assistance. He assisted in helping the occupants out of the car. He said one of the males, who seemed the most seriously injured had a large contusion on his forehead. He said there was a strong smell of alcohol from all three. He saw an unbroken vodka bottle sitting on the roof – ceiling of the upside down car in the back passenger side. He noticed no signs of impairment on the part of the defendant.
[12] Dillon English had been driving eastbound on Wolfe Grove Road on October 5, 2013 when he saw the overturned vehicle on the north shoulder and arrived at about the same time as other passers-by who had stopped. He assisted the occupants out of the overturned vehicle and in particular assisted the defendant who seemed injured. He said he sat down behind her and used his knee to support her back while he held her neck. He was in close proximity to her and could smell the odour of alcohol from her but could be no more specific about where. He had no memory of seeing any evidence of alcohol. He said she seemed to be in a lot of pain and could not say whether she was impaired.
[13] Carrie Cregan is a paramedic. She arrived at the scene at 11.45 and saw the defendant sitting at the side of the road rocking herself back and forth and complaining of pain in her back. While Ms Cregan attended to the defendant, the defendant told her that she had had “three to four beers during the night”. On being shown her ambulance call report, she said the defendant had told her that she had had “three beers within the last three to four hours”. She conceded that the defendant had been distraught from the severe pain. She did not notice any slurred speech, or other signs of impairment.
[14] Tracy Cameron was a registered lab technician working at the Almonte General Hospital on October 5, 2015. She had received a requisition to take blood samples from the defendant for hospital purposes. These were the standard CBC tests and ‘send-outs’. She said an OPP constable asked her to take blood samples for him. She said she asked the doctor who said OK. She said she took the samples and kept them with her until she got the seals, and then put them in the refrigerator.
[15] Esther Crawley is an air paramedic employed with Ornge which air transports medical cases. She said she first saw the defendant at the Almonte General Hospital on a hospital bed, complaining of pain in her back at 9/10 level wearing a cervical collar and with a cut on her head. She had a fracture of her T4-5-6, abrasions to her hands and a 3” to 4” laceration on her forehead that had required 6 sutures. The defendant told her she had had “four beers and a line of cocaine the night before”. Ms Crawley said she assisted in transporting the defendant by air ambulance to the Civic campus of the Ottawa Hospital.
[16] OPP Cst Jamie Paul arrived at the scene on Wolfe Grove Rd near Union Hall Rd at 9.43 am after receiving a call. He saw that Cst McEravy had arrived. He saw that there were people trapped inside an overturned vehicle, fire personnel were present, and he could see that no other vehicle had been involved. He observed brown broken beer or liquor bottles in the car. He concluded from the damage to the car, that it looked to have struck a rock wall and turned over. It had come to rest upside down on the north shoulder facing east. He said he left the scene at 10.18 am for the Almonte General Hospital where he knew the vehicle occupants had been taken. He said that on arrival at the AGH, Carrie Cregan told him that the defendant had told her while on route in the ambulance that she had consumed three drinks. He said he met with the defendant at 10.43 am in the x-ray room, told her that she may be charged with impaired operation of a motor vehicle. She said –yes. He said “you do not need to say anything”. He said he had a brief conversation with the emergency room doctor who confirmed the defendant was capable of providing a breath test. He said that at 10.44 am he made an intoxilyzer demand. She said “I had four drinks”. He said he asked her if she wanted to speak to a lawyer. She said “I don’t care”. He then said he had misspoken because she was not under arrest, said he had no note of what he had said to her, but that he usually says – ‘do you understand’. Later in his evidence when he had the printed card with him that he usually reads, he read it into evidence. It concludes with “do you understand?” She replied “yes”. He did not have a note of what prompted the defendant to say “I don’t care”. He asked her when she had her last alcoholic drink. She said “4.30 this morning”. He said he noted that the defendant was in a great deal of pain and he had no more conversation at that point. He said the intox officer arrived at 11.30 am. However, by that time the emergency room doctor told him the defendant was having trouble breathing, and was not able to give a breath sample.
[17] In speaking to the hospital staff, he said he learned they were about to take blood and “asked her to put seals on samples and to keep them for the future”. He specifically denied that he had asked for specific samples to be taken for police purposes or was even present when the blood was drawn, but later in re-examination agreed with the suggestion put to him that he had asked that seals only be placed on a portion of the blood samples. He said that at 12.05 he placed CFS seals on two vials of blood. He had no further interaction with the defendant who was then airlifted to the Civic Hospital.
[18] Cst Paul said that his next step was to obtain a search warrant in light of the utterances by the witnesses that alcohol could be smelled from all the parties at the scene, he observed broken beer or liquor bottles in the car, had been told of the defendant’s utterance to Cregan that she had consumed three drinks and had his conversation with the defendant during which she said she had had four drinks. He said he believed he had reasonable grounds to believe that the defendant was the driver, and that alcohol was “in her body”. He said his ITO was for the blood vials he had sealed at the Almonte General Hospital, and the medical records of the AGH. He prepared a separate but almost identical ITO for the Civic Hospital records. He noted “an addition” to his notes – that while speaking to the defendant in the x-ray room, there was an overwhelming smell of alcohol. He thought it was possible that the alcohol smell might have been on her clothing, and had come from the broken bottles at the scene.
[19] He said he prepared the two ITO’s dated October 15, 2013 and referenced the serious injuries of the occupants of the motor vehicle, and the conditions existing at the time of the single vehicle turn over. He executed the one warrant the same day, and the other one October 16, 2013. He said he forwarded the seized blood vials and hospital records from both hospitals to the Centre for Forensic Sciences for an opinion. He said he received a report and the affidavit of Rachelle Wallage, sworn January 3, 2014, which contained the opinion that the reference in the Almonte General Hospital records to the defendant’s blood alcohol level at 11.10 am on October 5, 2013 was the equivalent of 207 mg/ 100 ml of blood- and that projecting the blood alcohol back to 9 am to 9.38 am on October 5, 2013 the blood alcohol would have been 207 to 251 mg/100 ml of blood. She gave the opinion that a person within the projected range would have been impaired.
[20] The analysis of the blood vials from the AGH showed a blood alcohol of 217 mg/ 100 ml of blood which projected back to 9 am to 9.38 am would have been 217 to 261 mg/100 ml of blood. The analysis also showed the presence of cocaine, cannabis, and morphine.
[21] He said he received a further report and affidavit of Rachelle Wallage sworn March 19, 2014 from the CFS that contained the opinion that the reference to the defendant’s blood alcohol in the Ottawa Hospital Civic hospital records at 1.05 pm, was the equivalent of 171 mg/100 ml of blood, and projected back to 9 am to 9.38 am on October 5, 2013 would have been 185 to 250 mg/100 ml. It was her opinion that a person with those readings would have been impaired.
[22] Cst Paul noted the opinion of Rachelle Wallage of the CFS report dated November 21, 2013 that blood levels of the kind reported, presumed impairment at the time on the basis of the prevailing literature and studies. He said he therefore concluded that the defendant had alcohol in her body at the time of the accident in excess of .08 g per 100 ml of blood, and had grounds for impaired operation of a motor vehicle. He obtained a Warrant for the defendant’s arrest and charged her December 3, 2013 after receiving the November report. He said before that he had only suspicion. He said that while at the hospital the defendant had showed no evidence of impairment but that she had been badly injured. He had prepared a draft of the information December 12, 2013, and believed that he had grounds for impaired and ‘over 80’. He agreed with the suggestion put to him that until then he had only ‘suspicion’. After receiving the results from the CFS dated January 3, and March 19, 2013 he said he believed he had grounds to believe the defendant had alcohol in her body in excess of 80 mgs while driving.
[23] Cst Paul said that while he believed there were reasonable and proper grounds for a charge of dangerous driving shortly after the incident had occurred, he decided to wait until had completed his investigation before laying the dangerous driving charge along with the other charges. He was questioned closely on what he said was the cause of the accident – namely- the vehicle having struck a rock cut and over turned. He pointed to a marking on a photograph of a boulder at the side of the road, placed in evidence by an earlier passer-by witness as being evidence of a tire scrape but had nothing recorded in his notes. He only noted his conclusion, which included debris from the vehicle in the ditch. He said it was a sunny day, straight roadway, and she had crossed the road and hit a rock cut. He said he concluded the vehicle hit the rock cut from his own observations, scratches on the rock, debris in the ditch, and the vehicle was overturned. He had nothing recorded in his notes but said he had an independent recollection. First he said the overturned vehicle was 20 ft from the rock, and then said he thought it was 10 ft from the rock. He agreed there was no evidence of speed, and couldn’t say that it was not caused by a burst tire. He was questioned closely as to his failure to describe explicitly the proposed charges in the ITO in addition to impaired driving on the ground that the justice of the peace would have been misled. He said it was his belief that but for the defendant’s impairment the accident would not have happened.
[24] The Crown position is that the police officer was not very good at describing his subjective grounds for the search warrants, but that on the basis of the available evidence the objective grounds were clearly in existence, and it can be taken that notwithstanding the officer’s evidence that the subjective grounds existed. The Crown is not seeking to have the vials of blood considered as part of the evidence and took the position that the defendant’s comments to him about her drinking would not go into evidence. The defence contends that the ITOs did not meet the requisite threshold for full and frank disclosure in light of the various omissions. [1] I am satisfied that the ITOs contained full and frank disclosure of the material facts and that the JP would not have been misled by the omissions raised by counsel. Whether Cst Paul believed he had only a suspicion, I am satisfied that they were sufficient for Justice of the Peace Logue to be satisfied on reasonable grounds in order to issue the search warrants for the AGH and Civic Hospital hospital records. It was not necessary that the officer demonstrate a prima facie case for conviction. [2] My function as the reviewing judge is not to substitute my view for the justice of the peace but to determine whether there was reliable evidence that might reasonable be believed on the basis of which the application should have been granted. [3] I find that while the ITOs might have been more complete, there was sufficient reliable evidence for the JP to issue the warrants. While it might have been more complete if the actual offences considered by Cst Paul had been included, I am satisfied that the factual and evidential matrix was sufficiently detailed that the actual or additional offences would have been clear to the justice of the peace.
[25] I don’t accept the defence argument raised in submissions that less weight should be given to the CFS opinion because it was in affidavit form. It was open to the defence to require that the affiant be present for cross-examination. The defence also raised in submissions the issue of ‘bolus drinking’ on the basis of the broken alcohol bottles found in the car after the accident. No questions were asked of witnesses, and no evidential basis was laid during cross-examinations to suggest there was any merit to the argument. I am satisfied beyond a reasonable doubt on the basis of the evidence of several hospital records, the CFS analysis, and the opinion of Rachelle Wallage, that the defendant had in excess of 80 mgs/100 ml of alcohol in her body at the time of the accident. I am further satisfied that Mr Foster had been seriously injured in the accident.
[26] The Crown contends that the dangerous driving offence has been made out in light of the totality of the evidence that there was a marked departure. ie. a clear day, straight road, and no apparent reason for the accident. In addition, there was the involvement of alcohol.
[27] I am not satisfied the evidence is sufficient for me to conclude beyond a reasonable doubt that dangerous driving has been made out. The OPP investigation was cursory to say the least. No photographs had been taken for police purposes. Instead the Crown relied on a passer-by who took several pictures. The photos showed the approximate place of the accident, but were insufficient to show any markings either on the roadway or on a boulder near the resting place of the car. It was the officer who gave an opinion that the vehicle had crossed the road, struck the boulder and turned over. He had no experience or qualifications to make such a judgement. He took no measurements, and conducted no careful analysis of the surface of the road to determine if there had been skid marks, vehicle markings, or even markings on the boulder. These kinds of observations would be expected after a serious accident. There was none. His evidence of a tire scrape mark on the boulder was mere speculation. There was no evidence of excessive speed or erratic driving. To the contrary, the evidence was that the defendant was driving properly and was not speeding. The defendant had apparently complained of feeling tired earlier, but there was no evidence that she had fallen asleep. It is the manner of driving that must be the focus of the enquiry in order to establish the actus reus, not the consequences of the driving. [4] It is for the Crown to demonstrate that there was at the time a ‘marked departure’ to sustain a conviction. To make no enquiries, even of the defendant as to how the accident occurred, and to make no independent assessment as was the case so as to either establish or exclude excessive speed, loss of control, or possible failure of part of the vehicle such as a burst tire, has the effect of reversing the onus, and requiring the defendant to disprove the offence. It is not for the police to conduct an investigation only for evidence to support a conviction; but also to conduct an investigation to exclude fault on the part of the operator, if such be the case. The evidence here is inadequate to permit an inference to be drawn and therefore to require the defence to rebut the inference. While the defendant’s impairment at the time of the accident is relevant, I do not consider it sufficient in this case to permit an inference that the defendant’s driving at the time constituted a ‘marked departure’ - particularly in the face of the abysmally inadequate investigation conducted by the police.
[28] On Count #1, I find the defendant guilty.
[29] On Count #2, I find the defendant guilty.
[30] On count #3, I find the defendant not guilty.
Citations
[1] R v Araujo ,[2000] 2 SCR 992, 2000 SCC 65 @ paragraph 46., [2] R v Shepherd , 2009 SCC 35 , [2009] SCJ no.35, 2 SCR 527 @ paragraph 23 [3] R v Araujo , note 1 @ para 54 . [4] R v Roy , 2012 SCC 26 , [2012] 2 SCR 60, 93 CR (6 th ) 1, 281 CCC (3d) 433 (SCC)