Court File and Parties
COURT FILE NO.: 27/14 DATE: 2016/04/29 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Her Majesty the Queen – and – Ely Joseph Emile Clermont Defendant
COUNSEL: S. McNaughton, for the Crown Trudy Mauth, for the Defendant
HEARD: April 25, 26, 27 and 28, 2016
garson j. (Orally)
Introduction
[1] The defendant Ely Clermont is charged with one count of impaired driving cause bodily harm on August 9, 2013, contrary to s. 255(2) of the Criminal Code of Canada.
[2] The defendant was operating a motor vehicle that went through a four-way stop sign at the intersection of County Road 84 and Highway 119 in Zorra Township and struck the front stairs of a home at the northeast corner of the intersection.
[3] The sole passenger and girlfriend of the defendant, Camille Simms, suffered a fractured sternum, two broken ribs, and two fractured vertebrae and spent several days in the hospital recovering. She has recovered from her injuries with the exception of some ongoing back pain.
The Governing Law
[4] The defendant is presumed innocent until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden of proof that rests with the Crown throughout the trial. A reasonable doubt is based on reason and common sense and is logically connected to the evidence. A reasonable doubt is not an imaginary or frivolous doubt: see: R. v. Lifchus, [1997] 3 S.C.R. 320.
[5] In order to prove the offence of impaired driving cause bodily harm, the Crown must prove the following essential elements:
(i) that the defendant was operating the motor vehicle;
(ii) that the defendant intended to operate the motor vehicle after consuming alcohol;
(iii) that the defendant’s ability to operate the motor vehicle was impaired by alcohol; and
(iv) that the impairment caused the bodily harm to Camille Simms.
[6] The defendant formally concedes and admits that the injuries to Ms. Simms constitute bodily harm.
The Evidence for the Crown
P. C. Killoran
[7] PC Killoran, a 21-year veteran of the OPP, responded to a single motor vehicle accident (MVA) dispatch at 1:08 a.m. on the early morning of August 9, 2013. She arrived at the scene within ten minutes and observed a damaged Black Dodge Dart with licence number BBVM 270 (“the vehicle”). She noticed a female and male lying outside of the passenger door.
[8] She described the intersection as having four over-sized stop signs, a posted speed limit of 60 km/hr. and a red flashing light. The weather was dry and clear. The vehicle struck the cement steps of the house on the northeast corner of the intersection. The front end of the vehicle was significantly smashed in and the airbags had deployed. There are artificial overhead street lights at the northwest and southeast corner of the intersection.
[9] The male occupant of the vehicle at the scene identified himself as the defendant by way of a photo health card and was able to communicate with the officer (although he had a bloody nose). The female occupant of the vehicle was in a lot of pain and unable to communicate.
[10] After speaking with a number of witnesses and attending in the back of the ambulance with the defendant, the officer formed the grounds upon which she arrested the defendant for impaired operation of a motor vehicle and made a demand for a sample of his breath.
[11] From speaking with witnesses at the scene, the officer determined that:
(i) the accident occurred at approximately 1:05 a.m.; and
(ii) the defendant was operating the vehicle at the time of the accident.
[12] When she spoke with the defendant in the back of the ambulance, the officer noticed:
(i) a strong odour of alcohol on the defendant; and
(ii) recalled a verbal response by the defendant to the officer, when asked if he had consumed alcohol, that he “had a couple”.
[13] The defendant was transported at 1:42 a.m. by ambulance to hospital in London with the officer following behind. They arrived at London Health Sciences Centre at 2:05 a.m. and the defendant was then arrested and read his rights to counsel at 2:23 a.m. The caution was read by the officer at 2:28 a.m. and the demand for a breath sample was made at 2:29 a.m. At 2:34 a.m., the officer received information from Dr. Fernandez that the defendant was medically able to provide breath samples.
[14] At 3:03 a.m., the defendant was taken for x-rays and at 3:29 a.m., the defendant indicated he wished to speak with counsel. At 3:47 a.m., the defendant was given access to a phone at his bedside and spoke with counsel until 3:55 a.m. The officer stepped back about 40 feet to allow the defendant to speak with counsel in private. At that point the officer turned over the defendant to the Intoxilyzer technician who was at the hospital.
[15] P.C. Killoran did not observe the defendant to consume any alcohol between 2:23 a.m. and the time she turned over the defendant to the Intoxilyzer technician.
[16] In cross-examination, the officer acknowledged her notes were a little sparse. She agreed that a description of the odour of alcohol from the defendant as “strong” is inconsistent with her notes, her willsay statement, and the synopsis she prepared for this case.
[17] She acknowledged finding out later that the defendant suffered a punctured lung and broken ribs that night. She agreed that the defendant was lying flat on his back with a neck brace at the time she observed him in the hospital.
[18] She did not bring a digital recorder to the hospital to record her conversation with the defendant.
[19] She formed the grounds to lay the charge of impaired driving cause bodily harm after she met with Camille Simms on August 15, 2013.
[20] She acknowledged an error in the time in her willsay statement with respect to the time she was dispatched to the accident and confirmed it was 1:08 a.m. In her submission to CFS, she accepted that a description of the defendant by a witness as being “unsteady on his feet” is not in the witness’s statement nor recorded in the officer’s notebook.
[21] She agreed that in the materials she prepared for a warrant to seize the medical records, she describes the defendant as having bloodshot and glassy eyes and slurred speech. However, this evidence is not in her willsay, her notebook or her synopsis and she did not testify to this observation. She concedes that she may have been mistaken and cannot today recall the defendant having bloodshot or glassy eyes and that his facial injuries may have affected his speech.
Leonard Jessome
[22] Mr. Jessome is a 51-year old industrial painter who resides at the intersection where the accident occurred. He was up late that night and was closing his front blinds when he saw a reflection of a car heading north on Highway 119 and tail lights go by and then heard the squealing of tires and a loud impact. He did not see the accident. He saw the vehicle bounce back into the intersection and went out to assist and asked his wife to call 911.
[23] Mr. Jessome asked the defendant a few times if he was okay but received no response. The defendant appeared to be in a state of shock. He observed the defendant on the driver’s side of the car with the door open and bending inside of the car. He saw a couple of beer bottles in the defendant’s hand and watched him place these in a neighbor’s window well. He heard the bottles clanging together. He estimates it took about 10 seconds for the defendant to get from the car to the neighbor’s window well.
[24] He saw a female open the passenger door and try to stand and then fall to the pavement. He tried to help her and within a few minutes, another female arrived to help the injured female passenger.
[25] The front end of the vehicle caught fire and Mr. Jessome put the fire out with an extinguisher and then helped direct traffic until police arrived.
[26] In cross-examination, he estimated the vehicle bounced back from the house between 12-14 feet.
[27] He agreed he was not quite sure where the female (Sandra West) who assisted the injured passenger was after the female passenger (Camille Simms) fell to the ground.
[28] He got within two feet of the defendant and agrees he did not smell any odour of alcohol. He prefaced that comment with the fact that he has been in the industrial paint business for 20 years and he does not smell anything.
[29] He agreed that people driving through this intersection miss the stop sign daily and that another accident took place at the same intersection just two days later. Many people go through that intersection without slowing down or at a reduced speed. It is not uncommon for animals to cross that intersection late at night.
Sandra West
[30] Sandra was staying at her parent’s house on the night of the accident. The vehicle struck their home. She ran outside with her father and observed the defendant going back and forth between the driver’s side of the car and her parent’s house.
[31] She went to assist the female passenger because the vehicle was on fire. She lay her on the road next to the vehicle and the defendant came over and lay beside her and started to lay on top of her until she complained that she was hurt.
[32] The defendant told Sandra his name was Ely and the female passenger was Kim. The defendant kept trying to apologize to Kim saying he was so sorry and she kept pushing him away.
[33] Sandra saw an object in the hands of the defendant when she first observed him in between her parent’s house and the driver’s side of the car.
[34] In cross-examination, she agreed that Mr. Jessome was at the vehicle before her and was with her when Camille lay down on the ground.
[35] This was the third time her parent’s house had been hit by a vehicle and indicated the house gets hit almost every year (although it’s better since the four-way stop went in).
[36] She agreed that many people do not slow down or pay attention to the stop sign.
[37] On this occasion, she recalls the engine of the vehicle was still pointing towards her parent’s house and that part of the car remained on the sidewalk with the back-end of the vehicle being just into the intersection.
Brenda Jacquelyn Oulds
[38] Ms. Oulds was pulled over at the intersection just after 1:00 a.m. on August 9, 2013. She saw the vehicle approaching the intersection and travelling northbound on 119. She heard the screeching of brakes and saw the vehicle fishtail before striking the house on the corner and bounce back onto the road.
[39] Ms. Oulds’ vehicle was parked on the side of County Road 84 facing westbound and she could see the full intersection.
[40] The noise she heard from the RPM’s of the vehicle suggested to her that it was travelling at a high rate of speed.
[41] She observed from her standing position at the southwest corner, a male in the driver’s seat get out of the vehicle a few times and circles around the vehicle.
[42] She heard the male driver apologizing and saying “I’m sorry”.
[43] She described the evening as clear, dry and beautiful and did not see any animals or other vehicles in the area at the time of the accident.
[44] In cross-examination, she agreed it was possible that a cat may have already crossed the road before she turned her head.
[45] She described the driver as frantic, going back and forth around the vehicle a number of times.
[46] She did not recall seeing the driver with anything in his hands or walking towards the window well.
[47] She had no direct contact that evening with either the driver or the passenger of the vehicle. She observed the passenger to be half-in and half-out of the car and a female holding onto her. She describes the driver as being shaken, frantic and upset. She observed him bending over into the vehicle and then going around the car again. He eventually sits down and cuddles beside the female.
P.C. Sawchuk
[48] P.C. Sawchuk, a 9-year veteran of the OPP, is designated as a qualified Intoxilyzer technician and has been qualified with respect to the Intoxilyzer 8000C for 7 years.
[49] On the morning of August 9, 2013, he attended at LHSC at 2:28 a.m. and spoke with P.C. Killoran who provided him with her grounds for arrest.
[50] The officer performed a series of tests which included a diagnostics test at 3:22 a.m., changing the standard solution at 3:24 a.m., a calibration check, and a self-breath test at 3:37 a.m. As a result of these tests, the officer was satisfied that the Intoxilyzer 8000C was in proper working order.
[51] The defendant advised the officer at 3:33 a.m. that he wished to speak with counsel. The officer stepped away to allow the defendant to speak to his lawyer while maintaining a visual of the Intoxilyzer 8000C. He returned back to the defendant at 3:55 a.m. and at 4:04 a.m. received the first sample of breath from the defendant directly into the approved instrument. This sample, accepted as suitable by the instrument, yielded a reading of 70 milligrams of alcohol in 100 millilitres of blood. A second sample of breath from the defendant directly into the approved instrument at 4:30 a.m. yielded a reading of 65 milligrams of alcohol in 100 millilitres of blood.
[52] In cross-examination, the officer estimated that he and P.C. Killoran were about 10 metres away from the defendant when he spoke with his counsel. He also agreed that the defendant had trouble providing the samples because of his swollen lips, yet described the defendant as being very cooperative.
[53] The officer could not recall if there was a patient in the bed next to the defendant when he spoke with his lawyer.
Jean-Paul Palmentier
[54] On consent, Mr. Palmentier, a toxicologist with the CFS, was qualified as an expert with respect to the pharmacology and toxicology of alcohol and the manner in which alcohol impairs a person who operates a motor vehicle.
[55] Based on information provided to him by P.C. Killoran, he estimated that the projected blood alcohol concentration (“BAC”) of the defendant would have been at or between 70-125 milligrams of alcohol in 100 millilitres of blood between approximately 1:05 – 1:08 a.m. on August 9, 2013. This wide range is due to the varying range of elimination rates of alcohol from the blood.
[56] He further testified that he would expect an individual of that BAC to be impaired in one or more of the following essential mental faculties required for driving:
(a) attention;
(b) reaction time;
(c) decision making;
(d) vigilance;
(e) alertness; and,
(f) coordination.
[57] He opined that alcohol slows down information processing and it therefore takes longer to make a decision. This increase in choice reaction time reduces the likelihood of an appropriate decision.
[58] He further suggested that someone could better respond to unexpected stimulus like reacting to an animal or to someone grabbing the steering wheel with a zero BAC and that alcohol is not a performance enhancing drug.
[59] He explained that impairment deals with a decrease in ability to perform tasks due to the presence of alcohol and that unlike intoxication, one cannot develop a tolerance to the mental and intellectual effects of impairment which are not under one’s conscious control.
[60] In cross-examination, he confirmed receiving the stand-alone diagnostics and calibration tests and the self-test and test-record card of the defendant. He agreed that he assumed the accuracy of the time of the accident given to him by the police and that a change in this factor could change his opinion or range.
[61] He confirmed that the elimination rate on 10-20 milligrams of alcohol in 100 millilitres of blood per hour encompasses the majority of the healthy adult population.
[62] He agreed that if a passenger grabs a steering wheel or leans on the driver’s leg causing the accelerator to go down, that either of these factors may cause a sober driver to lose control of a vehicle.
[63] In re-examination, he opined that the BAC reading was proof that the defendant met all four of the instrument criteria, including the sufficiency of the sample for analysis.
P.C. Boutin
[64] P.C. Boutin, a 14-year OPP veteran, also attended at the scene of the accident that evening, arriving at 1:13 a.m.
[65] He maintained continuity of the vehicle and located a purse and some beer bottles in the vehicle. The purse contained personal effects belonging to Camille Simms. A wet beer cap was located on the driver’s side floor. A broken Budweiser beer bottle was found behind the front passenger seat next to an unopened beer bottle.
[66] A witness directed the officer to a window sill at the east of the vehicle and on the south side of the building where the officer located two bottles of Budweiser beer, (340 milligrams size) and observed a trail of droplets of blood from the vehicle to the top of the window sill.
[67] In cross-examination, the officer confirmed that he and P.C. Killoran arrived at the scene at the same time. He acknowledged that the location of the beer bottles in the vehicle could have changed as a result of the impact of the accident.
Defence Evidence
Camille Simms
[68] Ms. Simms testified that she was dating the defendant at the time of the accident.
[69] She estimates that earlier in the day, she consumed two to three bottles of Budweiser beer between 4:00-5:00 p.m. and between six to eight bottles of Budweiser beer between 5:00-10:00 p.m.
[70] She recalls being picked up by the defendant at a friend’s house in London around 10:00 p.m. and about 10 minutes later leaving with the defendant who was driving a dark Dodge Dart. She had no concerns that the defendant had been drinking because she would not have got into the vehicle if she thought he was drinking. They headed to the defendant’s father’s home in Thamesford.
[71] She noticed nothing unusual in the defendant’s driving – no weaving or crossing the centre line or driving on the shoulder. About 20 minutes into the trip, she began bickering with the defendant. She then noticed what looked like a cat on the roadway and yelled at the defendant (twice) to watch out, but he did nothing. She then reached over to try and grab the wheel and the defendant pushed her away. She again tried to grab the wheel which caused the vehicle to swerve to the right. She next recalls the brakes going on fast and then remembers the vehicle hitting the front of the house. She used both hands to try to grab the wheel and suggests she may not have done this if she was not inebriated.
[72] She was wearing a seatbelt and was in significant pain after the accident. She admits to drinking one bottle of Budweiser while they were driving but says that the defendant was not drinking. She also had a couple of beer in her knapsack and some in her purse to bring with her.
[73] She was using her body weight and leaning on the defendant’s right leg which caused the speed of the vehicle to vary.
[74] Although certain fine details of this event are a little fuzzy, she is otherwise able to remember the accident and says her intoxication caused her to have bad judgment and grab the steering wheel.
[75] In cross-examination, she recalled giving an earlier statement to police on the day after the accident (August 10, 2013) where she told police she did not know who was driving. She explained that she was on a high dose of morphine and had asked police to leave her room because they were strong-arming her and threatening to charge her with obstructing justice.
[76] She also recalled an August 12, 2013 visit with Sandra West and when shown Ms. West’s statement of what Ms. Simms said, indicated that this statement was inaccurate. More specifically, she denied telling Ms. West:
(i) that Ely was driving too fast,
(ii) that she asked him to slow down in the village of Kintore;
(iii) that Ely was blowing gravel on the road; and
(iv) that Ely had an open beer in the vehicle.
[77] When asked about the time of the accident and the time estimate she provided (a discrepancy of a few hours) she replied that it was years since the accident and that she had consumed alcohol at that time.
[78] When asked what the cat was doing in the middle of the road that night, she replied “jumping jacks” and suggested it could have been a racoon, but that she definitely saw something in the headlights.
[79] She estimates the entire incident from the time she asked the defendant to move until the accident occurred to be within 15-20 seconds.
[80] She admitted to also having some shots of Panama Jack earlier that evening after 5:00 p.m. (between three to six shots) and drinking one to two beer in the vehicle.
[81] In re-examination, she confirmed she was medicated when speaking with Ms. West at the hospital and that the medication made the events not crystal clear. She was drowsy, foggy and in and out of consciousness. She denied telling her anything about the defendant’s driving that night.
Reply Evidence
Sandra West
[82] Ms. West was recalled to respond to some of the evidence of Ms. Simms.
[83] She confirmed her visit to the hospital to see Ms. Simms on the evening of August 12, 2013. After asking Ms. Simms’ mother and brother to leave a few times, they both left the room.
[84] She then told Ms. Simms what happened that night and how the defendant kept on apologizing to her and trying to touch her and that Ms. Simms was trying to push him away.
[85] Ms. Simms told her that they (Ms. Simms and the defendant) had been fighting in the car and that the defendant had been speeding and she asked him to slow down numerous times and that the defendant was supposed to turn right at the intersection and she did not think he was going to be able to make the turn.
[86] Ms. Simms also said the defendant opened a beer and consumed it when they got in the car but that she did not drink in the vehicle (only earlier at a party).
[87] She described Ms. Simms as being in tears and thankful for the visit. She described Ms. Simms demeanor as calm and thankful.
[88] In cross-examination, she agreed that she does not know Ms. Simms’ regular behaviour and says she went to visit her because she would want someone in this situation to do the same for her.
[89] She mentioned this conversation to the police some two weeks later when they re-attended for another accident at the same intersection.
Discussion
[90] The defence concedes that the evidence establishes, beyond a reasonable doubt, that the defendant operated the vehicle at the time of the accident. Therefore, I must turn my focus to the remaining issues of impairment and causation.
[91] Although I do not condone the manner in which the defence raised a s. 10(b) Charter issue, I am prepared to deal with this issue as part of a blended trial.
Section 10(b) Charter
[92] The defence suggests that the evidence advanced at the trial (for the first time) by police shows that the defendant’s opportunity to speak to his lawyer at the hospital was not done in private.
[93] The defence filed no application and called no specific evidence. Rather, the defence relies upon the evidence of the officers that the defendant was handed a phone and the officers stepped back about 10 metres or so away so that they could not hear any of the conversation. P.C. Killoran confirmed that there was a patient in the curtain beside the defendant at the time of the call.
[94] The defence relies on the Supreme Court of Canada decision in R. v. Taylor, 2014 SCC 50, for the proposition that a hospital is not a Charter-free zone and that the Crown must demonstrate that a private conversation is not reasonably feasible. In the Taylor case, the appellant asked to speak to a lawyer from the hospital and at no point during this time at the hospital did the police attempt to provide him with an opportunity to speak to his lawyer. Those facts are clearly distinguishable from the evidence before me.
[95] I agree with the defendant that the police are obligated to take steps as to whether private access to a phone is available at the hospital. In my view, they have clearly done so in these circumstances.
[96] There is little doubt that the police must take steps to allow the defendant an opportunity to consult with counsel in private – see: R. v. Playford, [1987] O.J. No. 1107.
[97] However, the right to privacy must be examined in the context of the totality of the circumstances. In this case, the emergency room of a large regional hospital. The police stepped away a significant distance from the defendant and were unable to hear the conversation. They were required to maintain a visual with regard to the fact that the defendant was under arrest and the Intoxilyzer 8000C was on a table next to the defendant.
[98] In these circumstances, the police found a phone, initiated contact with the defendant’s counsel of choice in the middle of the night at the emergency room of a large hospital and extracted themselves from the vicinity while he spoke. The suggestion that police need work with hospital staff to rearrange emergency patient beds is not within the reasonable parameters of steps required by the police to assure private access in these circumstances. The steps taken by the police constitute sufficient steps in the circumstances – see: R. v. Turriff, [1988] O.J. No. 4818 and R. v. Burley, [2004] 181 C.C.C. (3d) 463 (O.C.A.).
[99] There is no evidence before me that the defendant had any concerns about a lack of privacy in his conversation. He said nothing of the sort to the police. To the contrary, he advised P.C. Sawchuk that he was satisfied that he had consulted with his counsel at 3:55 a.m.
[100] There is no evidence that the patient in the next bed heard any of the conversation. There is no evidence that the defendant even knew there was a person in the next bed.
[101] The evidence falls woefully short of satisfying me on a balance of probabilities that the s. 10(b) Charter rights of the defendant were violated by a lack of privacy.
[102] I need not address the s. 24(2) R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.) analysis in light of my finding.
[103] However, even if I had found a s. 10(b) Charter breach, I would still admit the results of the breath tests under s. 24(2) of the Charter having regard to the good faith actions on the part of the police, the minor impact of such a breach in the circumstances and the strong societal interest in the adjudication on the merits of a charge of impaired driving cause bodily harm.
Was the defendant impaired?
Findings of Fact
[104] I have listened carefully to all of the evidence and reviewed all of the exhibits filed.
[105] I was impressed with the evidence of the three civilian witnesses. They were simply good Samaritans who responded to a late night accident by quickly attending to the scene, putting out the vehicle fire, rendering assistance to the injured passenger, directing traffic, facilitating contact with 911, and speaking with police.
[106] I was similarly impressed with the evidence of Jean-Paul Palmentier, the expert witness, and accept his evidence as to the range of the BAC of the defendant and the impairing effect of alcohol on the operation of a motor vehicle.
[107] There is no evidence of any bolus drinking within 15 minutes of the accident or any alcohol consumption after the accident.
[108] The evidence of P.C. Sawchuk was given in a straightforward and professional manner. I am satisfied that he is a qualified technician who was operating an approved instrument that was in proper working order, and that he received and analyzed two samples of the defendant’s breath which were provided directly into the Intoxilyzer 8000C.
[109] I also accept the evidence of P.C. Boutin (and corroborated by Mr. Jessome) regarding the finding of two bottles of Budweiser beer in the window sills at the south side of the building and the beer and broken bottle and cap located inside the vehicle.
[110] I am more cautious with respect to the evidence of P.C. Killoran. There were many omissions in her notes and many misstatements in her CFS and warrant materials. I reject her description of the odour of alcohol as “strong” and rely on the 911 call transcript to establish the approximate time of the accident. In other words, I find that the accident occurred within seconds of 1:03:49 a.m. I place no weight on the conversation she overheard between the defendant and Dr. Fernandes. I also place no weight on her submissions to the CFS or contents of the warrant where she describes the defendant as having bloodshot and glassy eyes and slurred speech.
[111] I find that she made a lawful demand for samples of the defendant’s breath and that the necessary reasonable and probable grounds existed for her to believe that the defendant’s ability to operate a motor vehicle was impaired by alcohol on the evening in question.
[112] The officer need only have objectively based reasonable and probable grounds to believe that the defendant’s ability to operate a motor vehicle was impaired, even if such impairment was slight – see R. v. Stellato (1993), 12 O.R. (3d)90 (C.A.); affirmed, [1994] 2 S.C.R. 478.
[113] P.C. Killoran was an experienced officer and was entitled to make determinations based on her experience. The constellation of factors including an unexplained single vehicle accident, an odour of alcohol on the defendant who admitted to driving at the time of the accident and that he had consumed alcohol, is sufficient in these circumstances to provide the necessary grounds for the demand. The absence of other traditional indicia of intoxication does not, in and of itself, undermine the existence of reasonable and probable grounds: see R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.).
[114] The evidence of Ms. Simms causes me some difficulty. Although I accept much of her evidence regarding her own alcohol consumption, her injuries and where the vehicle was heading that evening, I have great difficulty accepting her evidence where it conflicts with that of Ms. West. I also have difficulty accepting her story about grabbing the steering wheel repeatedly and causing the vehicle to swerve as the result of seeing a cat on the road.
[115] In rejecting her evidence as to the altercation leading up to the accident and the cat in the road, I take into account the following:
(i) Her story is lacking in both logic and common sense – why did the apparently sober driver not see the cat but the intoxicated passenger did? Why did the apparently sober driver not slow down or pull over when alerted? Why did it take repeated efforts to force the car to swerve? Why did no other witnesses notice this cat?
(ii) Why was the defendant repeatedly and emphatically apologizing to her if she caused the accident? Why did he place two beers in the window well before even checking on the well-being of his girlfriend? Why would he hide her beer?
[116] Simply put, the evidence and her story make no sense and I do not accept that portion of her evidence about repeatedly grabbing at the steering wheel and leaning on his leg.
[117] Returning to the statement that Ms. Simms allegedly made to Sandra West a few days after the accident I must determine what use and weight I afford to this statement.
[118] Despite the general use of unadopted prior inconsistent statements as only relevant to credibility, there are circumstances where I may rely on such statements as substantive evidence and for the truth of their contents. These circumstances require that I find necessity and reliability on a balance of probabilities. Necessity will exist where the evidence is otherwise unavailable and the witness recants or denies the statement. Reliability deals with the trustworthiness of the statements – see: R. v. Youvarajah, 2013 SCC 41, 2013 S.C.C. 41.
[119] Although the interview took place in Ms. Simms’ hospital room a few days after the accident and while she was taking narcotics for pain, there is no credible evidence before me that she did not understand the nature of what was being discussed or that her answers were not responsive to the issues.
[120] Interestingly, a few days earlier, and arguably in more pain and discomfort, she had little difficulty directing the police to leave her hospital room because they were strong arming her into making a statement that was not truthful. She made no such suggestion regarding Ms. West.
[121] Her denial before me that she made any of these statements rings hollow. She had no reason to mislead or deceive Ms. West. In fact, she had every reason to be truthful and forthright with the woman who rushed to her side at a time of need and comforted her and helped her through substantial pain and trauma. I accept at that time that she was truly grateful for the earlier efforts of Ms. West and for the visit. She had no motive or reason to be anything but forthright and truthful with Ms. West.
[122] Both her mother and her brother were in the room just prior to this conversation. There is no evidence before me that either of them felt Ms. Simms was incoherent at this time or unable to communicate accurately or effectively.
[123] Ms. West has nothing to gain from being untruthful about this discussion. Much of Ms. West evidence is corroborated by other witnesses, including the defendant repeatedly apologizing, the defendant having something in his hand when she first observed him, and the fact that the defendant came over and lay beside Ms. Simms.
[124] Notwithstanding the lack of an oath or any warning regarding the making of false statements, I am satisfied that adequate substitutes exist for testing the truth and accuracy of the earlier statements and sufficient guarantees of reliability are present.
[125] Both Ms. West and Ms. Simms were available for cross-examination. Both were vigorously cross-examined. I have already commented on any assessment of their credibility.
[126] The failure of Ms. Simms to adopt her statements made to Ms. West meets the requirement of necessity. Ms. Simms clearly agrees that a conversation took place.
[127] When I examine the circumstances surrounding the statement, I am satisfied that I can sufficiently test the truth and accuracy of the statement and that the statements can be admitted as substantive evidence for their truth See: R. v. Hamilton, (2011) 2011 ONCA 399, 271 C.C.C. (3d) 208 (O.C.A.), leave to appeal refused (2012), 439 N. R. 397 (S.C.C.).
[128] In the end, I am satisfied that the prior inconsistent statement made by Ms. West is a truthful statement and I specifically reject her testimony before me where it conflicts with this statement. More specifically, I accept and find as a fact that the defendant was driving too fast approaching the intersection, that Ms. Simms asked him to slow down in the village of Kintore, that the defendant was blowing gravel on the road and that he had consumed a beer in the vehicle.
[129] These findings are consistent with the behaviour of the defendant immediately after the accident in attempting to hide two bottles of beer before checking on his injured girlfriend and profusely and repeatedly apologizing to her. I note that the beer bottles were laid on their side in the window well in what appears to be an effort to hide these from the police.
[130] There are no physical symptoms of intoxication. There is an odour of alcohol emanating from the defendant after the accident.
[131] There is some evidence of the driving leading up to the accident. It was a beautiful summer evening. No rain and no fog. The intersection is marked with a large stop sign and flashing red light. It is brightly lit in the evening (see Exhibit 1A). The RPM’s of the vehicle suggested to Ms. Oulds that the vehicle was travelling fast. The fact that it struck the steps of the home and bounced back and suffered substantial damage attests to the speed.
[132] There are scientific tests and expert evidence that support the BAC of the defendant being between 70-125 milligrams of alcohol in 100 millilitres of blood at the time of the accident.
[133] The defence suggests I cannot rely on this extrapolation because the opinion is based on the accident occurring between 1:05 to 1:08 a.m. and the 911 call confirms that it happened no later than 1:03:49 a.m. and likely a number of seconds earlier. I disagree.
[134] Firstly, the affidavit of the toxicologist assumes the time to be at or between “approximately” 1:05 to 1:08 a.m. In my view, 1:03 a.m. is approximately 1:05 a.m.
[135] Secondly, the affidavit speaks to a rate of elimination varying from 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour. Even allowing for a full three minutes, a discrepancy of 1/20th of an hour, the additional elimination rate, at best, is one milligram and that rate would be higher if going back in time.
[136] In any event, the Ontario Court of Appeal in R. v. Paszczenko, 2010 ONCA 615 at para. 61 permits me to take judicial notice of the fact that the majority of human beings eliminate alcohol in a range of 10 to 20 milligrams of alcohol per 100 millilitres of blood per hour. I specifically reject the contention by the defence that I place no weight on the opinion of the toxicologist.
[137] Additionally, I consider the effects of alcohol on the defendant’s physical and mental abilities to operate a motor vehicle. This was a clear, dry and quiet road. There was ample lighting and signage. The speed was obviously too fast to navigate the intersection. The reaction time, the decision making, the alertness and the attention of the defendant were all impaired by alcohol His last minute decision to hit the brakes was too much, too little, and too late.
[138] In isolation, each indicia of impairment is likely insufficient. However, when examined together, the odour of alcohol, the accident, the behavior of removing the beer and placing it in the window well after the accident, the repeated apologies after the accident, the BAC at the time of the accident and the pristine road conditions all lead me to the inescapable conclusion that the defendant’s ability to operate the vehicle was impaired by alcohol: see R. v. Watts, 2007 ONCA 271.
Causation
[139] Having specifically rejected the competing explanation for the cause of the accident, I am satisfied and find beyond a reasonable doubt that the vehicle struck the house as a direct result of the consumption of alcohol by the defendant and his subsequent impairment.
[140] I must be satisfied that the actions of the defendant were a significant contributing cause to the bodily harm suffered by Ms. Simms: see R. v. Nette, 2001 SCC 78, [2001] 3 SCR 488.
[141] There is some evidence that on a regular basis, many people miss the stop sign, or go through the stop sign at this intersection at a high rate of speed. There is evidence of repeated accidents at this intersection, including one two weeks after this accident.
[142] There is evidence that the house that was struck by the defendant’s vehicle was struck on prior occasions in prior years. There is some evidence that the intersection is not extremely well-lit.
[143] Although the evidence of impairment strongly supports factual causation, I must also be satisfied that legal causation exists to hold the defendant responsible for the bodily harm of Ms. Simms: see R. v. Nette, supra, at paras. 44-45.
[144] There is no doubt that impairment is a factor that goes beyond trivial or insignificant in terms of causation.
[145] I take into account the history of accidents, infractions, speed and related problems at the intersection.
[146] However, based on the evidence of the toxicologist, the speed of the vehicle, the impairment of the sensory motor and intellectual faculties of the defendant and the BAC of the defendant at the time, I am satisfied and find that the impairment of the defendant was a significant contributing cause to the accident and to the bodily harm suffered by Ms. Simms.
[147] I accept that as set out in the affidavit of the toxicologist, impairment becomes significant at a BAC of 50 milligrams/100 millilitres and increases from then onward.
[148] The defendant’s inability to stop at the intersection and subsequently crash into the steps of the home were the result of his decreased ability to perform the essential motor tasks of operating the vehicle. There is no other credible explanation for the accident other than impairment. His impairment was a real factor in causing the accident and the resultant bodily harm to Ms. Simms.
Conclusion
[149] Considering all of the evidence in its totality, I am satisfied that the Crown has proven the essential elements of the charge of impaired driving cause bodily harm beyond a reasonable doubt. More specifically, I conclude beyond a reasonable doubt that the defendant was operating the vehicle and intended to do so after consuming alcohol and that his ability to operate the vehicle was impaired by alcohol and that such impairment caused the bodily harm to Ms. Simms. Accordingly, I find the defendant guilty.
“Justice M. A. Garson” Justice M. A. Garson