Court File and Parties

COURT FILE NO.: 06/18 DATE: 20181221 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Nathan Hathaway Defendant

Counsel: Meredith Gardiner, for the Crown Rob Farrington, for the Defendant

HEARD: October 9, 10, 11, 15, 16 and 17, and November 30, 2018 Justice M.A. Garson

Reasons for Judgment

Introduction

[1] On the early morning hours of July 24, 2016, a tragic motor vehicle collision occurred on Wilton Grove Road, just west of the Mustang Drive-In Theatre in the City of London.

[2] Nathan Hathaway, the defendant, was operating a 2016 Nissan Rogue that collided with a 2007 GMC Sierra extended cab pickup truck operated by Kevin Williams.

[3] A number of occupants from both vehicles sustained significant injuries as a result of the accident.

[4] The defendant is now charged with four counts of dangerous driving causing bodily harm and four counts of impaired operation of a motor vehicle by drug causing bodily harm.

[5] The following reasons explain the verdicts that I have reached in this matter.

The Accident

[6] After an evening at the movies, the Williams family left the Mustang Drive-In Theatre shortly before 1:15 a.m. to return home. Kevin, the father, was driving, and Victoria, the mother, was in the passenger seat. Their ten-year-old daughter, Olivia, was seated between them, and their three other children were in the back seat. Everyone was wearing seatbelts.

[7] After exiting the theatre, the Williams’ vehicle turned left onto Wilton Grove Road and headed west towards St. Thomas. Kevin does not remember much about the collision but recalls seeing headlights and needing to turn right. Victoria has a more vivid recollection and recalls an on-coming vehicle sharply and suddenly coming into their lane, requiring Kevin to turn towards the ditch and causing their vehicle to roll onto its roof and come to a stop.

[8] Victoria initially thought Kevin was dead as he was hanging in his seatbelt upside down and unconscious with his fingers on the roof of the vehicle. Olivia was screaming in pain with blood dripping from her head. The other three children in the backseat were crying, but the oldest child, Ariel, assured Victoria that everyone in the back seat was fine.

[9] After seeing smoke, Victoria worried that her family might burn to death and instructed her kids in the backseat to bang on the windows and yell for help. Victoria then undid Olivia’s seatbelt which unfortunately caused Olivia to fall, strike the roof, and suffer further pain. She then undid her husband’s seatbelt causing him to also fall on top of Olivia who continued to cry and scream in pain.

[10] Victoria was able to exit the vehicle while other motorists stopped and assisted in removing all of the children through the back door.

[11] One of the passersby who assisted was Angel Paige. Angel was a passenger in her mother’s vehicle, which was directly behind the Williams’ vehicle at the time of the accident.

[12] At the time of the collision, Angel heard a loud bang and then saw the Williams’ vehicle airborne, flipping in the air, and ultimately landing on its roof in the ditch. She estimates that prior to the collision her vehicle was travelling slightly below the posted speed limit. Although she now knows this to be a head-on collision, she described the accident to police at the scene as a “T-bone” because she did not see any headlights from the on-coming vehicle.

[13] Angel immediately called 911, then tossed the phone to her mother and ran down towards the Williams’ vehicle to help get the children out. She saw smoke and heard the children screaming and pounding on the car windows for help. She did not see the defendant’s vehicle at the time of the collision.

[14] Angel’s mother, Diane Ouderkirk, recalls seeing the vehicle in front of her quickly brake and then swerve off the side of the road. She estimates that her speed at the time of the collision was approximately 60-70 kms/hr which was the same speed she estimated the Williams’ vehicle was travelling in front of her. She then observed a vehicle heading directly towards her, which she thought was going to hit her car. She heard the impact of the collision in front of her and saw the Williams’ vehicle swerve onto the gravel shoulder, roll over, and land upside down in the ravine. She recalls seeing the wheels of the Williams’ vehicle turning as it lay upside down with smoke coming from it. She took the phone from her daughter and talked with the 911 dispatcher.

[15] Diane noticed that the defendant’s vehicle had no driver’s door and that an airbag had been deployed.

The Injuries

[16] Kevin appears to have sustained the worst injuries and was hospitalized for fourteen days. His injuries include multiple bone fractures in his left foot, four cracked ribs, a cracked sternum, a collapsed left lung, skull fractures, fractures to his left forearm, a damaged spleen, a brain injury, dislocated toes, and extensive scratches and cuts. Many of these injuries had long-lasting effects, particularly with respect to chronic left foot pain and a brain injury which has rendered Kevin unable to work since the accident. He also often loses track of his thoughts and is easily agitated and overwhelmed in certain public settings.

[17] Victoria also suffered significant injuries, including a brain injury, a badly broken wrist, a pinched nerve in her neck, and extensive soft-tissue injuries. Victoria currently struggles with constant pain in her head, wrist, and knees and has heightened sensitivity to light. Her ear drums suffered damage as did her visual processing. She is unable to work. Both she and Kevin suffer from PTSD.

[18] Olivia was hospitalized for eight days. She sustained several fractures in her face, right arm, and shoulder as well as extensive bruising. She was in incredible pain at the time of the accident. Her long-term effects include having one arm shorter than the other.

[19] The three children in the backseat all suffered bruising and some have on-going struggles related to PTSD, depression, and post-concussion syndrome.

[20] The defendant’s two-year-old son sustained a three inch abrasion on the left side of his neck, a broken leg, and some bruising in the centre and lower right side of his belly.

Observations of the Defendant after the Accident

[21] Victoria testified that once she was out of her vehicle and after checking on the well-being of her kids, she noticed a male and a female who had come out of the defendant’s vehicle, yelling at each other. She described the female as appearing injured and “passing out” at different places, and testified that she heard the male yelling at her to not be passing out everywhere. Neither the male nor female offered any assistance to the Williams family at the scene.

[22] Victoria was shocked to later discover that there was a young child with the male and female occupants of the vehicle, since she had not seen or heard the child until an ambulance attendant arrived.

[23] Diane also observed a female exit the other vehicle involved in the collision, which I find to be the defendant’s vehicle. She did not see the male get out of the vehicle, but saw him approach the female as she exited. Diane described the female as complaining about how hurt she was and screaming that she was going to die. The male responded using foul language, and ordered her to stop carrying on this way and to get herself under control. Diane believed that both parties were possibly drunk, describing the male as slurring his words and the female as not quite with it. Neither appeared to be suffering from any injuries.

[24] She observed the male angrily grab the female and yank her hard out of a ditch. Both the male and female continued to argue back and forth, and the male kept muttering that he had no idea what was going on.

[25] Diane did not see either the male or female offer any assistance to the Williams family. Rather, they continued to bicker and argue with each other about who was responsible and how everyone was watching them. She did not observe the male or female dealing with or talking about a young child.

[26] She had no difficulty observing what was going on because of the bright moon and other vehicle’s headlights.

[27] Diane did not tell the police anything about the male or female appearing to be drunk in either of her two written statements, one on the night of the accident and the other a few days later.

[28] Angel was informed by others at the scene about the identity of the male and female occupants of the other vehicle. She described both of them as being tall and thin. She observed some small abrasions on the female. She also observed the behaviour of the male. She had little difficulty making her observations because of car headlights illuminating the scene.

[29] Initially, she thought the male might be in shock, although she later thought otherwise. More specifically, she observed that he was:

(i) repeating his words; (ii) walking in circles; (iii) appeared confused about what was going on; (iv) yelling and screaming at the female; (v) seemed angry; and (vi) kept repeating the phrases: “oh my God”; “what happened?”; “how did I get here?”; and “what’s going on?”.

[30] Angel described the female as being very dramatic about her injuries and adamant that she was going to die.

[31] She did not observe any injuries on the male. She noticed him sporadically moving and talking, and observed that he was all over the place, pacing back and forth and trying to figure things out. He did not appear sleepy. She also noticed that the male and female did not offer any assistance to the Williams family.

[32] She thinks she recalls seeing the male seated on the roadway with a child just before they were loaded into an ambulance.

[33] Angel insists that she told a police officer, not necessarily the one who took her statement, about the male walking in circles and pacing back and forth, but agreed that these observations did not make their way into her signed statement.

Police Involvement

Pre-Accident

[34] By happenstance, OPP Officer Tim Groves was in a cruiser travelling east on Colonel Talbot Drive at 12:42 a.m. on the same early morning of July 24, 2016 when he had occasion to observe a vehicle parked on the north side of Littlewood Avenue. The car was barely off the roadway and had no lights on. His partner stopped the cruiser to permit Officer Groves to conduct a well-being check on any possible occupants of the vehicle.

[35] Officer Groves approached the vehicle and observed a male driver, a female front passenger, and a child in the back seat, all sleeping. He knocked on the driver’s window and woke the male driver who explained that his family had been out all day and had stopped on the side of the road to sleep because they were tired. Upon request, the male driver retrieved his licence from the trunk of the vehicle which confirmed his identity as the defendant.

[36] Officer Groves then advised the defendant that, because the vehicle was barely off the road and it was in a dark area with no street lights, the defendant would have to move his vehicle to a different location. The defendant was cooperative and complied with the officer’s request. The officer next observed the defendant and his vehicle at the site of the collision at 1:24 a.m. where he recognized the vehicle, the driver, and the two passengers. The officer had no direct involvement with the defendant at the accident scene.

[37] The officer observed no signs of impairment by either drug or alcohol and, more specifically, no dilated or constricted pupils, sweating, slurred speech, odour of marijuana, complaints of dry mouth, or lack of eye contact during his first interaction with the defendant. The officer would have had concerns about impairment had he observed this constellation of symptoms, and would have recorded them in his notebook.

Responding To the Accident

[38] Constable Steve Williams, a three year LPS officer (currently inactive as a result of outstanding criminal charges) was on duty that night and dispatched to attend at the accident scene. He arrived on scene shortly after the accident at 1:23 a.m. on July 24, 2016 at the area near the Mustang Drive-In on Wilton Grove Road. He observed the Williams’ vehicle flipped in the ditch and the defendant’s vehicle on the roadway with severe front-end damage.

[39] He described the area as really dark with no overhead lights and a two-lane asphalt highway in good condition going east to west with gravel on the sides. It was a clear and humid evening, more than 30 degrees Celsius with humidity. After helping the Williams family, the officer turned his attention to the defendant, who was now sitting quietly in the middle of the road with his female companion, trying to comfort his upset child.

[40] As the officer approached close to the defendant at approximately 1:48 a.m., he made the following observations of him:

(i) he was sweating profusely (more than others on scene); (ii) he was pale; (iii) his eyes were dilated; (iv) his speech was slow and slurred; (v) he was having difficulty concentrating and focusing; (vi) he was not responding well; and (vii) he complained of dry mouth.

[41] After receiving information from others on scene that the defendant’s vehicle swerved into on-coming traffic and caused the collision, the officer formed a belief that the defendant was under the influence of narcotics and placed him under arrest.

[42] At 1:48 a.m., the officer received a small clear plastic bag with white residue and a small black and silver weigh scale that Officer Jessica Burt earlier seized from the centre console of the defendant’s vehicle. Neither the baggie nor the scale were tested for fingerprints.

[43] At 1:55 a.m., the officer accompanied the defendant in the ambulance as he was transported to the London Health Sciences Centre (“LHSC”) – Victoria Campus, arriving at 2:17 a.m. While observing the defendant’s conversations with both ambulance attendants and medical staff, the officer noted that the defendant continued to appear a little confused, almost similar to his behaviour at the accident scene. During his time at the hospital (the officer was relieved by another officer at 3:20 a.m.), the officer noted that the defendant was sleeping. The Drug Recognition Expert (“DRE”) officer Constable Yeo, who attended at the hospital in response, was unable to properly perform any of his twelve-part tests because the defendant was sleeping and was in a neck brace on a backboard strapped to a bed.

[44] On August 3, 2016 Officer Williams returned to LHSC with a blood warrant and seized a vial of the defendant’s blood (seal #2T79042) which he sent to the Centre of Forensic Sciences (“CFS”) for analysis. He also obtained the medical records for the defendant and his son. He sent away the contents of the seized dime bag to Health Canada for analysis. A Certificate of Analyst confirmed the presence of THC, cocaine, and methamphetamine.

[45] This was Officer Williams' first time arresting someone for operation of a motor vehicle while impaired by drug. The defendant complained to him at the collision scene about injuries, including his right arm, shoulder, and neck as well as cuts and scrapes.

[46] Although he agrees that his notes recorded that the defendant’s eyes were dilated and his pupil’s small, he clarified during his testimony that he understands that dilated pupils are big and that the defendant’s eyes were seen as going from dilated to constricted. He estimated that he made his observations of the defendant at the scene over a period of two to three minutes. He accepted that the defendant was able to answer basic questions put to him by EMS on scene and that the defendant understood his reasons for arrest, including his rights to counsel and caution.

[47] He agreed that in his earlier testimony at the preliminary hearing, a witness at the scene described the movement of the defendant’s car as “a gradual drift” and not a sudden swerve. He also accepted that he was not trained as a DRE and therefore had to request one to attend the hospital and assess the defendant for evidence of impairment by drug. The defendant did not display any signs of excitement, agitation, or euphoria at the scene.

[48] Constable Yeo, a fifteen year LPS officer was summoned from his residence at 1:42 a.m. that morning to attend at LHSC – Victoria Campus. He is a DRE qualified officer. He arrived at the hospital at 3:01 a.m. and met with Constable Williams to obtain the grounds necessary to conduct his evaluation and testing. As earlier indicated, it was medically impractical to conduct any tests at that time. At 3:54 a.m., the officer placed a CFS seal #2T79042 on a vial of the defendant’s blood.

[49] Constable Yeo has conducted forty-three DRE evaluations. He outlined the twelve-step evaluation he normally conducts which takes about seventy minutes. He agreed that he has never conducted an evaluation outside at night, with one exception where he was under a ramp at the hospital. He discussed an average range of pupil sizes in different lighting conditions that is used to compare findings after he has examined the pupils.

[50] Officer Tyler Bollman is a ten year LPS officer who was also dispatched to the collision, arriving at 2:07 a.m. He observed extensive damage to both vehicles and took a series of measurements in an effort to determine point of impact and complete the necessary motor vehicle collision report. His report concluded that a head-on collision caused the Williams’ vehicle to roll over and land on its roof in the ditch after the defendant’s eastbound vehicle came into the west bound lane. He described the area of the accident as rural with light traffic and no other businesses, except the drive-in, nearby.

[51] The road was straight, flat, dry, and level and the area was dark, making it more difficult to see at night. The width of Wilton Grove Road was measured at 6.4 metres and the point of impact was determined to be at 3.2 metres from the shoulder in the centre of the road.

[52] Officer Chris Riley, an eighteen-year LPS member is specially trained in the area of downloading crash data recorder (“CDR”) information from motor vehicles involved in accidents. On December 7, 2016, he took possession of the CDR from the defendant’s vehicle and downloaded the data which then generated a report. The report shows the steering, braking, and speed of the defendant’s vehicle in the seconds leading up to the crash. He noted the following conclusions from the report:

(i) Speed: at five seconds before impact, the defendant’s vehicle was travelling at 96 km/hr. The speed was reduced to 89 km/hr at point of impact. (ii) Braking: the brakes were activated at point of impact, but not before. (iii) Steering: from five seconds to one second before the crash the steering appeared relatively straight. At one second before crash, the vehicle made a 22.5 degree turn to the left, and immediately thereafter a 12.5 degree turn to the right before impact. [1]

The Passenger in the Defendant’s Vehicle

[53] Mairi Heinimann was in the front passenger seat of the defendant’s motor vehicle at the time of the collision. She did not attend the trial despite being under lawful summons. On consent, her evidence from the preliminary hearing was filed.

[54] Her memory of that evening and the event is vague. She had no memory of the accident itself. She recalled pulling off to the side of the road because both she and the defendant were tired. Everyone fell asleep. She next recalled the police telling them that they were not allowed to stay there and to move the vehicle. She believed there were no drugs in the car.

[55] She admitted that she was a crystal meth user at the time, but did not know of any drug use by the defendant. However, she recalled that he smoked weed when they first got together eight years ago. She recounted that the defendant used crystal meth with her a few years earlier, and described the effect that it had on both of them as causing hyperactivity and the desire to stay up for nights on end. She said that it did not cause them to get sleepy or lethargic.

[56] She believed that she was in a coma for seven days as a result of the accident. She acknowledged a gap in her memory from the time police told her they had to move the vehicle until the time she woke up in hospital.

The Ambulance and Hospital Records

[57] The defendant’s medical records were filed with the court. Reports completed by ambulance attendants on scene confirm that the defendant was sweating and had dry mouth. They also described the defendant as being lethargic with slurred speech, but that he was also alert and oriented.

[58] Upon arrival at hospital, the defendant’s pupils are noted as being dilated at 6mm. This compares to a measurement of 3mm noted earlier by the ambulance attendants.

[59] As part of routine trauma treatment, blood was taken from the defendant at 2:26 a.m. Upon examination, the defendant was found to have suffered a fractured left clavicle and possible rib fractures.

The Experts

Dr. Daryl Mayers

[60] Daryl Mayers, a toxicologist with the CFS testified for the Crown. He received the defendant’s blood and conducted a series of tests to screen the sample for the presence of drugs. His initial testing revealed a concentration of drug that was off the analytical curve and beyond his ability to quantify. Dilution of the sample permitted him to conduct further testing. His only finding of any relevance was the presence of methamphetamine with a concentration of 0.56 milligrams in one litre of the defendant’s blood. [2]

[61] Dr. Mayers described the various methods one could ingest methamphetamine including orally, smoking, injecting, or snorting. The onset of symptoms varied by method of ingestion, with injection being the fastest (few seconds) followed by smoking (few minutes), snorting, and then orally by pill (up to three hours) to achieve maximum symptoms.

[62] He next turned to the specific symptoms one could experience. Generally speaking, as a stimulant drug, methamphetamine causes an initial increase in energy and euphoria. After this increase, feelings of nervousness, agitation, and dysphoria set in, along with feeling unwell, upset, depressed, and anxious. Symptoms may also include delusions and paranoia.

[63] Physical symptoms may include an increase in heart rate, blood pressure, temperature (leading to possible sweating), and dilated pupils. Dryness of mouth can also be a symptom.

[64] As far as driving, like other stimulant drugs, persons who operate a motor vehicle while under the influence of methamphetamine may experience diminished impulse control and an increase in aggressive tendencies. Methamphetamine ingestion also causes a person to lose focus and jump all around with their thinking, which may impact their ability to drive safely. Often, erratic driving and excessive speed are associated with the use of this drug, as well as inattention which may result in a driver leaving a lane, veering off the road, or moving to the opposite lane.

[65] These symptoms vary markedly between individuals and are worsened by an increase in the concentration of the drug.

[66] Dr. Mayers identified two phases that users experience with methamphetamine - an active stimulant phase and a crash phase. The active phase often leads to repeated and incoherent speech. The crash phase, which is linked to dysphoria, is characterized by excessive sleepiness or fatigue and sometimes unconsciousness. It is not possible to predict which phase a person is in based on the concentrations detected. It is also not possible to predict the order of the phases and whether one or both will appear.

[67] Dr. Mayers testified that the defendant’s concentration of methamphetamine (0.56mg/L) fell within the range accepted in the literature of persons whose ability to operate a motor vehicle was impaired by methamphetamine. Accordingly, the concentration of drug in the defendant was capable of impairing his ability to drive. However, without specific testing of the defendant’s driving ability while impaired, he could not opine as to whether it actually had such an effect.

[68] Testing did not detect the opioid drug fentanyl, which is known to cause feelings of well-being and euphoria.

[69] Dr. Mayers concluded that the defendant’s concentration of methamphetamine was capable of impairing a person’s ability to operate a motor vehicle, and was far in excess of any therapeutic concentration.

[70] Dr. Mayers was not able to test for cannabis because of the limited sample size, but acknowledged that the testing done would reveal the presence of any common opioid such as methadone or fentanyl. Dr. Mayers accepted that his opinion is limited to the general effects of a drug, but could not opine on how a drug would specifically affect an individual. He could only speak to impairment by drug in general terms and acknowledged that the scientific community is still gaining information about impairment by drug. More specifically, he agreed that in comparison to scientific knowledge of specific alcohol concentrations, the scientific knowledge regarding drug concentrations lags far behind.

[71] When presented with a hypothetical scenario relating to some of the facts in this case, including that the defendant was observed to be symptom free approximately thirty minutes before the accident, Dr. Mayers opined that the symptoms would be expected to carry on for a period of time. He would expect a person with the defendant’s concentration of methamphetamine to exhibit many of the physical symptoms at varying degrees, including dilated pupils which can cause a visual disturbance if in the presence of bright lights.

[72] Dr. Mayers agreed that without testing an individual, he could not opine on the particular effects a drug would have on that person. He accepted that tolerance levels vary and that a tolerant person may have diminished signs of impairment. He also accepted that a person using methamphetamine may be able to drive without being impaired.

[73] He explained that methamphetamine’s crash phase arises when the stimulant effect becomes outweighed by depression of the central nervous system and the person’s lack of sleep.

Dr. Joel Mayer

[74] Joel Mayer, a retired Forensic Scientist and Toxicologist, formerly with the CFS and now a consultant, testified for the defendant. He did not conduct any independent testing, and was retained to review the collision investigation and prepare a report. He was present in court for the evidence of some witnesses, including Dr. Daryl Mayers.

[75] Dr. Mayer urged caution about accepting observations made regarding the defendant at the collision scene. In his opinion, the injuries suffered by the defendant may alter, affect, or cause signs and symptoms that are consistent with something other than drug use.

[76] Dr. Mayer accepted the presence of methamphetamine in the defendant’s blood, and relying on the literature regarding similar concentrations of like substances in persons involved in collisions while operating motor vehicles, agreed that it is possible that the methamphetamine led to the defendant’s ability to operate the motor vehicle being impaired.

[77] However, he noted a broad range of concentrations in past studies that suggest a wide variation of effects on individuals, largely due to a fairly rapid development of tolerance to the effects of the drug. Accordingly, he opined that - although he is unable to dismiss the role of methamphetamine in the collision - it is difficult to retroactively establish a direct link between the drug and the collision.

[78] Having regard to the baggie found in the defendant’s vehicle that contained THC, methamphetamine, and cocaine, Dr. Mayer opined that, if substances from this baggie were consumed just before the collision, it is likely that detectable amounts of all three substances would be found in the defendant’s blood.

[79] He described methadone as a synthetic opioid used to relieve withdrawal symptoms for persons who are trying to stop using other opioids such as heroine. Methadone can be dispensed by a pharmacist as a liquid or tablet.

[80] He accepted that the testing procedures used by Dr. Mayers and the CFS in this case were appropriate to detect the presence of methamphetamine. However, the ability to detect this drug is subject to how the sample was prepared and how the instruments used were set up and operated. Dr. Mayer testified that, for example, if the defendant ingested therapeutic doses of methadone in the days leading up to the collision, this drug would have been present in the defendant’s blood at the time it was withdrawn at the hospital. Since the testing did not detect this drug, he believes that it is possible that either the testing itself was not properly done, or that the sample tested was not the defendants’.

[81] He clarified that he was not suggesting that he observed anything in Dr. Mayers’ evidence or report that suggested the testing or sample collection was contaminated or flawed. Rather, he was raising it as a possibility based on the assumption that if the defendant ingested methadone within twenty-four hours of testing, the drug would have been detected by CFS. Accordingly, the absence of the drug means that it was either not ingested or the testing was faulty or improper.

[82] He noted that the hospital records showed his pupils to be reactive and to measure well within the normal range at 3mm. He also agreed that a recorded increase in heart rate and blood pressure were symptoms of methadone ingestion.

The Pharmacist

[83] Samer Toma, a licenced pharmacist and pharmacy manager at London Medical Pharmacy East, testified that a person named Nathan Hathaway received daily doses of 20mg/ml of Methadone Hydrochloride between Monday, July 18, 2016 and Saturday, July 23, 2016.

[84] He explained that this drug was administered to this patient as part of the methadone maintenance program. The drug is normally provided to the patient in the form of a juice and must be fully ingested in the presence of the pharmacist who then confirms on a tracking sheet that the patient took the full dose. Only once it has been consumed would the pharmacist initial the list to confirm that the drug was administered.

[85] Mr. Toma relied on records maintained by the pharmacy and an official prescription receipt, but accepted that he did not personally witness the defendant ingest methadone as he was not working at this pharmacy in 2016. He agreed that the records maintained by the pharmacy failed to capture the time of the day that the drug was administered, a requirement established by the College of Pharmacists.

The Law

(i) Presumption of Innocence and Burden of Proof

[86] The defendant is presumed innocent of the charges unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden on the Crown that never shifts.

[87] Proof beyond a reasonable doubt is not equal to proof of probable or likely guilt. It is also not proof to a level of absolute certainty. It requires that I be sure that the defendant committed the offences. The standard of proof applies to each of the essential elements of the offences, not every piece of circumstantial evidence, and requires that I determine if the evidence as a whole establishes proof beyond a reasonable doubt.

(ii) W.D. Principles

[88] The defendant called evidence. I must apply the principles established in R. v. W.(D.), [1993] 1 S.C.R. 742 which provides as follows:

(a) if I believe the evidence called by the defendant, I must find him not guilty; (b) if I disbelieve the evidence called by the defendant but it nonetheless creates a reasonable doubt as to his guilt, I must find him not guilty; and (c) even if I disbelieve the evidence called by the defendant and such evidence does not raise a reasonable doubt, I can only find him guilty if - on the evidence that I do believe and accept - his guilt has been proven beyond a reasonable doubt.

[89] What I cannot do is permit a criminal trial to turn into a credibility contest where I simply chose one side’s evidence or version of events over the other.

(iii) Dangerous Driving Causing Bodily Harm

[90] The Supreme Court of Canada in R. v. Roy, 2012 SCC 26, [2012], 281 C.C.C. (3d) 433 summarizes the necessary conduct and mental state required for the offence of dangerous driving at para. 28 as follows [3]:

28 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 was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances (Beatty, at para. 43). 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 the 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 (para. 48). [Emphasis in original]

[91] The Supreme Court went on in Roy to pose two questions that the trier should consider in assessing the required mental state:

a. In light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible? and b. Was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances?

[92] This offence applies a modified objective test and examines the driving and the risks associated with the manner of driving against the standard of a reasonable person in the defendant’s circumstances.

[93] Lastly, the Crown must establish that such driving caused bodily harm to the named victims. The threshold for bodily harm is rather low and incorporates any harm that is more than merely transient or trifling in nature. The manner in which the defendant operated his motor vehicle must be shown to be a significant contributing cause of the bodily harm suffered.

[94] I must be careful not to work backwards from the devastating consequences of the collision and use these to conclude that the manner of driving was dangerous. The focus must be on the driving.

[95] I must also remain mindful that although civil consequences may arise from the collision, it is essential to apply the criminal standard of proof beyond a reasonable doubt of the essential elements of the offence. Only a marked departure from the standard of a reasonably prudent driver in the circumstances, coupled with the necessary mental element, will be sufficient to attract criminal liability.

(iv) Impaired Operation of a Motor Vehicle by Drug Causing Bodily Harm

[96] Section 255(2) of the Criminal Code requires that the Crown prove that the defendant intended to operate a motor vehicle after he consumed a drug, and that his ability to operate the motor vehicle was impaired by the drug, in this case, methamphetamine. As well, the Crown must prove that the impairment caused the victim’s bodily harm.

[97] The Crown must first establish that the defendant operated a motor vehicle at a time when the voluntary ingestion of a drug impaired his ability to operate the motor vehicle.

[98] Impairment is proven if due to the consumption of a drug a person’s ability to drive is impaired to any degree. Plainly, proving slight impairment is sufficient. [4] Proof of impairment by drug remains more challenging than proof of impairment by alcohol. This is primarily due to the range of drugs involved, and the range of tolerance different individuals present to these drugs. Additionally, depending on the time the drugs were ingested, and particularly with respect to stimulants, many users will demonstrate different reactions or symptoms based on whether they are in the active, crash, or withdrawal phase of the substance.

[99] Unlike dangerous driving, impairment may be proven in the absence of bad driving evidence. Impairment looks to a person’s altered judgment or diminished physical abilities. More specifically, it focuses on the effect on a person’s motor functions required to operate a motor vehicle. In other words, a person’s physical and physiological symptoms, general conduct, appearance, and scientific test results may all shed light on how a specific concentration of drug impairs both their physical and mental abilities and fine motor skills to operate a motor vehicle. These include reacting to things on the road, braking and response times, depth perception, judgment, reacting to changing conditions, exaggerated emotions, mental confusion, and impulsive behaviours.

[100] In addition to police officers, lay witnesses relying on their own life experiences may give an opinion as to whether the driver of a motor vehicle is intoxicated or drunk. [5]

[101] Where alternate explanations such as fatigue or shock may be available to explain various indicia of impairment, I must be satisfied that such alternative explanations are supported by evidence.

[102] Evidence of impairment shortly after the time of driving may be capable of reasonably inferring impairment at the time of driving.

[103] In a case where one or more elements of the offence depend on circumstantial evidence, I must be careful to properly and fully consider any reasonable inferences that may arise from the evidence, or lack thereof, that are inconsistent with the guilt of the defendant. [6] In other words, an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits.

Positions of Parties

The Defendant

[104] The defendant submits that evidence of the two eye witnesses at the scene, Diane and Angel, should not be given much weight because they are unreliable. The defendant is equally sceptical about the evidence of Cst. Williams, suggesting that he had limited experience and a limited opportunity to make his observations.

[105] The defendant argues that the toxicology report submitted by the CFS is also unreliable and suspect due to its failure to detect methadone in his blood.

[106] The defendant suggests that alternative explanations exist for the various indicia of impairment observed by many witnesses.

[107] Having regard to the manner of driving, the defendant concedes that his actions constituted a momentary lapse of judgment and, although careless or negligent, fall far short of the necessary marked departure from the standard of a reasonable and prudent driver in the circumstances.

The Crown

[108] The Crown counters that both eye witness and police evidence at the scene are credible and reliable, and that the pharmacy records tendered by the defence challenging the reliability of the toxicology testing amount to no evidence at all, and are incapable of raising a reasonable doubt.

[109] The Crown argues that the evidence, coupled with reasonable inferences drawn from such evidence, establishes the guilt of the defendant on all offences beyond a reasonable doubt.

Discussion

(i) Admission

[110] The defendant admits he operated the 2016 Nissan Rogue that collided with the 2007 GMC Sierra. The defendant further admits that the collision caused bodily harm to the four victims named in the indictment. Accordingly, the remaining issues to be determined by me are as follows:

(i) was the defendant’s ability to operate the motor vehicle impaired by a drug at the time of the accident? (ii) was he driving in a manner dangerous to the public in the circumstances such that it constituted a marked departure from the standard of care of a reasonable driver in the circumstances?

[111] As noted, the defence challenges the credibility and reliability of two eye witnesses and Cst. Williams. I next turn to my assessment of their credibility.

(ii) Credibility Findings

[112] The evidence of Kevin Williams, Victoria Williams, and Mairi Heinimann was unchallenged. I accept their evidence. I now focus on the three witnesses whose credibility is challenged by the defendant.

(a) Diane Ouederkirk

[113] The defendant submits that, although well-intentioned, Diane’s evidence is unreliable, mainly because she failed to tell the police in her witness statement at the time of the accident that she believed the defendant was drunk. The defendant also submits that she failed to tell the police of her observation that the defendant’s speech was slurred and that he was repeatedly yelling at his female passenger. The defence invites me to conclude that Diane must have discussed her evidence with her daughter in the two years between her police statement and her court testimony.

[114] I disagree. To the contrary, she appears before me as the classic independent third-party witness. She testified in a clear and straightforward manner. She was immediately on scene and observed the defendant shortly after the accident. She accepted some of the qualifications in her evidence put to her by defence counsel. She denied any collusion with her daughter. She has nothing to gain or lose in this proceeding. Although the detail sought by police in her statements may have been less than ideal, her lack of detail provided is not, by itself, sufficient to convince me that her evidence is inaccurate or unreliable. It is also reasonable to infer in the circumstances, and in light of the concessions made by the defence, that the male she observed was the defendant.

[115] Simply put, I believe she observed and was entitled to observe that both the defendant and his female companion seemed possibly drunk, and that the defendant was carrying on as if he had been drinking. I find her credible and accept her evidence.

(b) Angel Paige

[116] The defence also challenges the reliability of Angel, relying on her initial belief that the accident was a “t-bone” type collision involving a motorcycle. However, I note that she was not looking up at the moment of the collision, and only paid attention after she heard the loud bang.

[117] Like her mother, the defence suggests that what Angel told the police about the defendant appearing to be in shock was different from her court testimony where she described him as walking back and forth, being all over the place, and appearing to be drunk.

[118] Angel insisted that she told an officer at the scene many of these details, but was unsure as to which officer. She also explained that her limited details provided to police on scene was a result of the high stress atmosphere of the accident and the emotions she experienced as a result.

[119] I found Angel to be sincere and straightforward. She accepted some limitations in her evidence during cross-examination and testified in a clear and credible manner. She gave an independent and reliable account of what she saw, much of which was consistent with what she told police. She similarly has nothing to gain or lose in this proceeding. I accept her evidence.

(c) Constable Williams

[120] The defence challenges the evidence of Cst. Williams on a number of points:

(i) his impairment opinion should be given limited weight because this was his first arrest for impaired operation of a motor vehicle; (ii) the short time, two to three minutes, that he observed the defendant was insufficient to make accurate and proper assessments; (iii) his testimony about the defendant’s pupils going from dilated to restricted was inconsistent with previous testimony and tailored to support the prosecution; and (iv) his testimony at an earlier proceeding of an account from one witness at the scene that the defendant’s vehicle gradually drifted into the oncoming lane was inconsistent with his testimony that the defendant appeared to have quickly swerved into the oncoming lane.

[121] I am somewhat surprised by the absence of a single photograph from the scene, and by the fact that there is no technical traffic accident investigator report despite the accident resulting in multiple injuries and a response by multiple emergency services vehicles. These shortcomings to the investigation may be the by-product of Cst. Williams’ inexperience with respect to this type of offence. However, I reject the defence submissions that his evidence be offered minimal weight because of these concerns.

[122] Cst. Williams’ observations of the defendant were made from a distance of approximately two feet away, and he testified that he had a clear view of the defendant. His observations were detailed and more than justified his early belief that the defendant was under the influence of narcotics.

[123] Like lay witnesses, he is entitled to rely on his life experiences to form an opinion about impairment. The fact that this was his first arrest for this type of offence is of no consequence.

[124] Although his earlier notes and earlier testimony indicate that he observed the defendant’s eyes were dilated but his pupils were small, his explanation at trial that they were transitioning from dilated to constricted is consistent with the records and observations made earlier in the hospital and ambulance regarding the defendant’s pupils.

[125] His evidence of being told that the defendant’s vehicle quickly swerved is consistent with many other eye witnesses and with the CDR information.

[126] Overall, although shortcomings exist in the thoroughness of the police investigation, I reject the defence’s assertion that this officer tailored his evidence to help the prosecution. Further, many of his observations of indicia of impairment were also observed by other lay witnesses and medical personnel. I find him credible and accept his evidence.

[127] I pause to comment on the baggie located in the centre console of the defendant’s vehicle. This piece of evidence is of limited assistance to me. I cannot safely conclude that it was the defendant’s baggie or that he consumed drugs from within the baggie, particularly since concentrations of cocaine or THC were not detected by Dr. Mayers. Ms. Hienimann denied that there were any drugs in the car. She testified at the preliminary hearing that she had no recollection of events between the time they were woken by police and the time of the accident. It is clear to me that the baggie was not hers, and was likely the defendants. In any event, it is not necessary that I conclusively identify the source of drugs that may have been used, provided that I am satisfied that at some point prior to the accident he voluntarily ingested methamphetamine in a quantity sufficient to constitute a contributing and significant factor towards impairment.

[128] I next turn to the defence challenge of the reliability of the toxicology evidence of Dr. Mayers.

(d) The Experts, The Pharmacist and the Methadone

[129] The defence also challenges the reliability and accuracy of the toxicology report of Dr. Mayers, which relied on the blood sample taken from the defendant at the hospital on the morning of the accident at 2:26 a.m.

[130] Before I turn to the facts in dispute, I note the following factors that are not in dispute:

(i) that the blood was drawn from the defendant in the presence of Cst. Williams; (ii) that Cst. Yeo attended at the blood lab approximately one and a half hours later at 3:54 a.m. and affixed CFS seal #2T79042 on a vial of blood that bore the name of the defendant; (iii) that same vial of blood was later seized by warrant by Cst. Williams and sent to the CFS with the seal intact; (iv) that same vial of blood was later received by CFS with the seal intact and a series of tests was performed on the sample to screen for the presence and quantity of a number of drugs; and (v) that Dr. Mayers detected the presence of methamphetamine in the defendant’s blood at a concentration of 0.56mg in one litre of blood serum.

[131] I next turn to a number of the physical and physiological effects that Dr. Mayers testified are often associated with the use of a stimulant such as methamphetamine:

(i) it can often lead to a variety of agitated states; (ii) it can cause an increase in body temperature which can lead to possible sweating; (iii) the most prevalent and reported effect from methamphetamine ingestion on a person’s driving involves leaving their lane, running off the road, or moving into the opposite lane; (iv) the timing, onset, and effects of signs or symptoms of impairment by methamphetamine vary from person to person and depend on each individual’s tolerance for the drug; and (v) the physiological effects of the drug will remain until the drug dissipates or another drug is administered that will counteract the effect.

[132] At this point, what is clear to me on the evidence is that the blood tested was the defendant’s blood. There is simply no evidence before me to suggest that the sample tested from the vial belonged to someone else or was somehow switched or contaminated. The mere speculation by Dr. Mayer that the sample tested may not be that of the defendant is exactly that – mere speculation. The evidence before me clearly and convincingly says otherwise.

[133] There is no evidence before me to show that the testing procedures and protocol utilized by Dr. Mayers were faulty or improper. Dr. Joel Mayer conceded that he saw nothing in the testing records that led him to conclude that there was any contamination of the sample or any improper testing procedures. In fact, Dr. Joel Mayer accepted that the testing procedure he reviewed was appropriate for the purposes of detecting the presence of methamphetamine in the defendant’s blood.

[134] What is clear is that the testing procedure did not detect methadone. Both toxicologists agreed that if it were present in the defendant’s blood, it likely would have been detected. Dr. Mayer suggests that the possible explanation is that the testing was improper or the sample was not the defendant’s. These suggestions are based on the assumption that the defendant had ingested methadone within 24 hours or so of testing.

[135] Yet, what if the defendant never ingested the methadone?

[136] It is at this point that I turn to the issue of admissibility and weight to be given to the pharmacy record filed at Exhibit #16.

[137] To be admissible, documents must be authenticated. If they are relied upon for the truth of their contents they must fall within an exception to the hearsay rule. I am satisfied that the pharmacy records were sufficiently authenticated and, in any event, fall within the principled exception to the hearsay rule.

[138] The pharmacy records filed are admissible for the following reasons:

(i) as a record within the “business records” exception under the Canada Evidence Act (“CEA”), s.30, as it was made in the ordinary course of business; and (ii) in the alternative, as a record made contemporaneously by the administering pharmacist with personal knowledge of the matters being recorded and being under a statutory duty to make the record. Accordingly, the record falls with the principled common law exception to hearsay as it is necessary to admit the record, and sufficient circumstantial guarantees of trustworthiness exist to speak to the reliability of the record.

[139] The admission of a business record into evidence is distinct from the weight to be given to that record. Records may be unclear or incomplete or affected by other evidence. The record is dated July 23, 2016 and bears the defendant’s name, the date the drug is dispensed, and the dosage. There are also entries to reflect payment. The record covers a time period for dosages between Monday, July 18, 2016 and Saturday, July 23, 2016. There are initials on the record that would appear to be those of a pharmacist, but it appears that there were alterations made to the pharmacy record for the July 23, 2016 entry. The hospital records, when compared to the pharmacy office prescription receipt, confirm a different address and a different telephone number for the defendant. Both records were made within twenty-four hours of one another.

[140] What am I prepared to accept from the sparse information contained in the record? A person named Nathan Hathaway was given a prescription dose of methadone each day between July 18, 2016 and on July 23, 2016. I am not prepared to reasonably infer from the record that the administering pharmacist observed the defendant ingest the methadone, and that the defendant did ingest the methadone. Notwithstanding the thorough and careful procedure for administering methadone that Mr. Toma believed would have been in place at the time, Mr. Toma was neither the administering pharmacist nor working at this pharmacy at that time. There is no way for him to know what the dispensing pharmacist meant by the notation in the record. What Mr. Toma thinks the notation means is not necessarily what the note maker meant. To conclude so would be to rely on the record for more than its content.

[141] Mr. Toma’s knowledge of the thorough and careful procedure for administration of methadone followed by the dispensing pharmacist on those days amounts to no more than speculation based on his understanding at the time of how things may have been done. The terse record failed to capture the time of day the drug was administered. The record does not speak to observations about ingestion. Reaching that conclusion, in the absence of evidence from the actual dispensing pharmacist that he or she, in fact, observed the defendant ingest the methadone goes beyond the reasonable and permissible scope and use of the record before me. Put another way, the pharmacy record tendered is not capable of displacing the accuracy and reliability of the CFS toxicology testing and result. Mr. Tomas’ after-the-fact opinion of what the notation represents is not sufficient to persuasively amplify the contents of the record before me.

[142] I find as a fact and accept here a toxicology report that detected a significant concentration of methamphetamine in the defendant’s blood. In this respect, these facts are unlike the facts in R. v. Card, 2012 ONSC 6331, where there was no evidence of consumption of any drug and the court was dealing with a urine sample which made it impossible to quantify the concentration of the drug.

[143] I reject the defendant’s position that I must reasonably infer from the pharmacy record that the defendant ingested methadone shortly before the accident. In doing so, I take into account:

(i) Mr. Toma, who was not a pharmacist at this drug store on July 23, 2016, testified that the pharmacy was not able to comply with all of the statutorily required record-keeping due to the heavy workload; and (ii) there is no direct evidence that the defendant directly ingested methadone on July 23, 2016.

[144] Inferences must reasonably arise on the facts and must have some evidentiary foundation.

[145] There is no evidence before me of any defects in the testing procedures undertaken by Dr. Mayers to cast doubt on either the accuracy or the reliability of the results. The defects suggested by Dr. Mayer fall within the realm of mere speculation and are certainly not sufficient to cast doubt on the toxicology findings. Put another way, I reject the theoretical musings of Dr. Mayer because they are based on speculation and lack sufficient evidentiary foundation.

[146] Accordingly, I admit the pharmacy records into evidence for the limited purposes explained.

[147] I am not sure that they refer to the defendant before me, but am prepared to accept that they do. However, I am not prepared to accept the record as proof that he ingested methadone within twenty-four hours or so of the accident.

[148] Overall I found the evidence of both experts to be helpful, informative, and credible. I accept the evidence of Dr. Mayers. Having found his testing procedure and results reliable, I also accept and rely on his overall opinion that the concentration of methamphetamine in the defendant’s blood was capable of causing impairment with respect to his ability to operate a motor vehicle. For the most part, Dr Mayer largely agreed with and confirmed much of the evidence of Dr. Mayers. I also accept the evidence of Dr. Mayer, subject to exceptions noted about his speculation as to why the testing results may be flawed.

The Legal Principles Applied

Impairment by Drug

[149] The sobriety of the defendant was assessed by a trained police officer shortly before the accident. Roughly thirty minutes before the accident the defendant appeared sober, tired, had been sleeping, and was told to move on by police. He did so.

[150] I return to the evidence of Mairi Heinimann. Her evidence is that she was a crystal meth user at the time, and did not know of any drug use by the defendant. She also stated that when the defendant used crystal meth a few years earlier, he became more hyper and would stay up for nights on end. She was unaware of any drugs in the vehicle.

[151] The lack of DRE evaluations is offset by the toxicology results and the witness observations at roadside. The absence of a controlled environment does not dilute the accuracy or reliability of the various witnesses’ observations.

[152] The defence submits that the sudden onset of sleepiness observed by police at the hospital is not typical of the stimulant phase of methamphetamine that can often last four to eight hours before the crash phase. However, I note that at 2:50 a.m., the defendant was administered fentanyl by intravenous and Dr. Mayers testified that such a dosage could counteract the effect of methamphetamine because as a central nervous system depressant it has the ability to cause sleepiness and drowsiness. Accordingly, accepting that signs and symptoms of methamphetamine are highly individualized and based on the evidence before me, I reject the defence position that the defendant’s sleepiness goes against a conclusion that he ingested methamphetamine before the accident.

[153] There is no evidence before me of drug paraphernalia, be it a pipe, a needle, or anything capable of being used to snort a drug found in the defendant’s vehicle or at the scene. It would be pure speculation to try to establish how the defendant ingested methamphetamine. I find that a reasonable inference drawn on the evidence before me is that the defendant ingested a quantity of methamphetamine between the time he interacted with Officer Groves and the time of the accident. This inference is based on the evidence that I accept about his many indicia of having taken a drug, the toxicology report, and ample opportunity and reason to do so.

[154] When I examine the constellation of symptoms demonstrated by the defendant after the accident and observed by three lay witnesses, a police witness, and medical personnel, coupled with the concentration of methamphetamine found in his blood, I ask myself:

How likely is it that this constellation of symptoms would be present in the absence of drug impairment?

[155] I pause to briefly return to the observations noted in medical records, by the lay witnesses, and by Cst. Williams regarding signs of impairment at the accident scene:

(i) Diane believed the defendant was possibly drunk, and observed him slurring his words and muttering that he had no idea what was going on; (ii) Angel observed the defendant repeat his words, walk in circles, appear confused, yell and scream, and believed he was drunk; (iii) Cst. Williams noted profuse sweating, slurred and slow speech, difficulty concentrating and focusing, complaints of dry mouth, and pupils going from dilated to constricted; (iv) Ambulance records noted sweating, dry mouth, slurred speech and lethargy, and hospital records pointed to a change in pupil size from 3mm when measured in the ambulance to 6mm on arrival at the hospital in the emergency room; and (v) Dr. Mayers identified a number of symptoms consistent with ingestion of methamphetamine including dry mouth, dilated pupils, and an increase in body temperature which may lead to sweating.

[156] His driving involved some speed in a rural area described by Cst. Bollmar as dark, consequently making it more difficult to see at night. Dr. Mayers testified that speed is a factor often seen in drivers who ingest methamphetamine. I also compare his speed of 96 km/hr, slowing to 89 km/hr at point of impact, with the estimated speed of 60-70 km/hr that Diane estimated both she and Kevin Williams were travelling at the time of the collision. These noted behaviours are all consistent with a person who ingested a substantial amount of methamphetamine.

[157] His sudden movement into the on-coming lane of traffic was observed by Kevin, Victoria, and Diane and confirmed by the CDR in the defendant’s vehicle. This type of manoeuvre is also consistent, according to Dr. Mayers, with driving patterns observed by persons who ingested methamphetamine.

[158] The defence argues that there is evidence to suggest his loss of concentration was due to fatigue. However, the evidence of his earlier decision to pull off the road speaks to his knowledge of the risk of operating a motor vehicle while tired. I have no evidence before me that permits the inference that the defendant had opportunities to find other areas to rest. To say that he knew or did not know the area or to suggest that he drove on county roads because of anticipated reduction in traffic from major highway would require me to engage in even further speculation.

[159] I have little difficulty concluding that, on the evidence before me, the collision was caused by the defendant’s unexplained and sudden swerve into the on-coming lane of traffic, leading to a head-on collision with Kevin Williams’ truck. This was observed by Victoria and Diane. Victoria was not challenged on her evidence.

[160] The suggestion of other plausible explanations for the defendant’s behaviour or physical symptoms such as shock or injury all lack evidentiary foundation. He suffered no head injuries. There is no indication of shock in any medical records. There is no medical evidence before me to suggest that his numerous indicia or signs of impairment are consistent with shock, head injury, or fatigue. At a minimum, layered on his earlier fatigue, I accept that voluntary ingestion of methamphetamine was a significant contributory factor to his impairment.

[161] I accept the opinion evidence of Dr. Mayers that the quantity of drug found in the defendant’s blood was consistent with the literature he reviewed, and permitted him to form an opinion that the defendant’s ability to operate a motor vehicle could have been impaired at the time of the accident. This opinion was also shared to an extent by the defendant’s expert – Dr. Mayer. There is no evidence of any other reasonable cause or plausible explanation for the toxicology result, the driving causing the accident, and the many indicia of impairment. Both experts properly limit their evidence to the opinion that this concentration of drug could have impaired the defendant’s ability to operate the motor vehicle at the time of driving.

[162] The defendant’s unexplained swerve, his many indicia of impairment, and the concentration of methamphetamine in his blood, when considered as a whole, overwhelmingly support a clear finding of impairment by methamphetamine that impaired his ability to operate a motor vehicle at the time of the accident. I find that his voluntary ingestion of methamphetamine reduced the defendant’s ability to perform the necessary complex motor functions required to safely and properly operate a motor vehicle, including adverse effects to reaction and response time in changing circumstances and to steering ability, braking ability, visual perception, and judgment. I would describe the totality of impairment evidence as strong, including the many physical symptoms demonstrating impairment coupled with the toxicology report and expert opinion explaining a potential cause.

[163] The evidence considered as a whole leads me to the inescapable conclusion that the defendant voluntarily ingested a substantial amount of methamphetamine and thereafter operated a motor vehicle while his ability to do so was impaired by that drug.

[164] I next turn to the offences of dangerous driving causing bodily harm.

Dangerous Driving

[165] I must be satisfied that the driving was dangerous to the public and that the defendant’s conduct while driving constituted a marked departure from the standard of a reasonable person in similar circumstances.

[166] In order to prove the offences of dangerous driving causing bodily harm, the Crown must establish that:

(i) viewed objectively the defendant’s driving was dangerous to the public having regard to all of the circumstances including the nature, condition, and use of the place at which time motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; and (ii) that the defendant’s conduct and driving, based on all of the evidence constituted a marked departure from the standard of care of a reasonable person in the circumstances.

[167] I am mindful of the need to focus on the two questions posed by the Supreme Court in Roy and set out in para. 91 of this decision. In other words, would a reasonable person in like circumstances have foreseen the risks and was the defendant’s failure to foresee the risks and take steps to avoid it a marked departure from the reasonable standard of care?

[168] In the Beatty decision, the Supreme Court of Canada made clear that an act of negligent driving does not necessarily equate to an act of dangerous driving. In that case, the driver of a pick-up truck, for no apparent reason, suddenly crossed the solid centre line into on-coming traffic and struck another vehicle, killing all three occupants. In restoring the acquittal, the Court noted that the only evidence adduced by the Crown was evidence of a momentary lapse of attention that caused the vehicle to cross the centre line. It is clear that without more, a momentary lapse of attention will not suffice.

[169] I must consider the evidence before me in its entirety. In Beatty, the issues of vehicle speed and intoxicants were not a factor. They are, however, on the facts before me. The defendant ingested crystal meth in the past and had knowledge of its possible effects. He was clearly fatigued approximately thirty minutes before the accident. His failure to remain in his lane of traffic was dangerous to those vehicles in the on-coming lane.

[170] I recognize that even good drivers occasionally have lapses of focus and attention, and that the defendant’s unexplained swerve, standing alone, after travelling in a straight line for more than five seconds, although negligent, may not be enough to constitute a marked departure. However, I must consider that sudden swerve in the context of the evidence as a whole. I note that it was a swerve directly into oncoming traffic on a clear, dry night for no explicable reason, and was immediately followed by a sudden attempted correction in the opposite direction. Additionally, I must consider:

(i) this was a dark rural road with no overhead streetlights; (ii) the defendant’s vehicle was travelling at five seconds before the crash 16 km/hr over the posted limit, while - at the same time – multiple vehicles travelling in the opposite lane were going between 60-70 km/hr; (iii) it was in the early morning hours and the portion of the roadway where the accident occurred was populated with a series of vehicles exiting the nearby drive-in theatre; (iv) the defendant’s voluntary ingestion of a quantity of methamphetamine prior to the collision; (v) knowledge by the defendant of his fatigue in advance of the collision, and his decision to continue to operate the motor vehicle for a period of time before the accident, nonetheless, after being told to move along by police; and (vi) his failure to brake before impact.

[171] Methamphetamine was not new to the defendant. His female passenger, Mairi, makes clear that he used crystal meth in the past and it led to him becoming more hyper. His voluntary ingestion led to him having difficulty focusing and a decrease in his fine motor skills, including his reaction and response time.

[172] I return briefly to the evidence of Dr. Mayers who opined that driving with dilated pupils and facing bright lights, such as those from on-coming vehicles on a dark road, can be problematic and cause visual disturbances.

[173] There is evidence of alternative places for the defendant to have pulled off the road elsewhere after being moved along by the police. His knowledge of such places, or lack thereof, is not in evidence before me. His earlier decision to pull over and sleep on the side of the road in light of his fatigue speaks to a deliberate effort on his part to avoid creating a risk or danger to others on the road. However, his decision thereafter to drive for a period of time, with the presence of a significant amount of methamphetamine in his blood and knowing that he was still fatigued, constitutes a willingness on his part to create a risk of harm or danger to others on the road. In other words, his actions when considered as a whole, are sufficient to conclude that he deliberately intended to act in a manner that created a danger for other drivers on the road that early morning.

[174] This constellation of factors in addition to the sudden swerve are sufficient to demonstrate a clear pattern of disregard for the safety of others on the road that early morning and constitute a marked departure from the standard of a reasonable driver in the circumstances. This was far more than a mere momentary lapse of judgment. In other words, a reasonable person in the defendant’s circumstances would have foreseen the obvious risks associated with the defendant’s actions.

[175] In answer to the two questions raised earlier at para. 91, I am satisfied that:

(i) in light of all the relevant evidence, a reasonable person would have seen the risks and taken steps, if possible, to avoid them; and (ii) the defendant’s failure to foresee these risks and take such steps as to avoid it, if possible, constituted a marked departure from the standard of care expected of a reasonable person in the defendant’s circumstances.

[176] Evidence of voluntary ingestion of a significant quantity of methamphetamine prior to operating a motor vehicle, in and of itself, demonstrates a disregard for public safety. Considered as a whole, the ingestion of methamphetamine coupled with evidence of speed, a sudden swerve and attempted correction, earlier lack of sleep, otherwise clear and dry road conditions, a stream of traffic in the other direction on a dark and unlit rural road satisfy me that the Crown has proven the essential elements of these offences of dangerous driving causing bodily harm beyond a reasonable doubt.

Conclusion

[177] For these reasons, I find the defendant guilty on all counts.

“Justice M.A. Garson” Justice M.A. Garson Released: December 21, 2018

COURT FILE NO.: 06/18 DATE: 20181221 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Nathan Hathaway REASONS FOR JUDGMENT Justice M.A. Garson

Released: December 21, 2018

[1] The officer initially testified to the vehicle turning to the right and then to the left but the Crown conceded that the court should accept the contents of the explanatory notes contained in the report as factual and accurate which are as described above.

[2] There was a further finding .067mg/L of amphetamines which Dr. Mayers explained was likely a metabolite of the methamphetamine.

[3] This test is a summary of the test earlier set out by the Supreme Court of Canada in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49

[4] See R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), affirmed (1994), 90 C.C.C. (3d) 160 (S.C.C.)

[5] See R. v. Graat (1982), 2 C.C.C. (3d) 365 (SCC) at p. 381

[6] See R v. Villaroman, (2016) SCC 33 at para. 30.