Court File and Parties

COURT FILE NO.: CR-18-30000004-0000 DELIVERED ORALLY: 20190219 DATE RELEASED: 20190221

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – KUNAL BULLAND Defendant

Counsel: Ben Snow, for the Applicant Mukesh Bhardwaj, for the Defendant

HEARD: October 29 & 30, 2018 & November 1, 2, 5 & 6, 2018

Reasons for Judgment

FAIETA J.

[1] The Defendant, Kunal Bulland, is charged with impaired operation of a motor vehicle causing bodily harm contrary to s. 255(2) of the Criminal Code. The Indictment reads as follows:

KUNAL RAJKUMAR BULLAND stands charged that he, on or about the 7th day of September in the year 2016 at the City of Toronto in the Toronto Region did, while his ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle and cause bodily harm as a result to another person, namely Ian GODIN-CHEVRIER, contrary to Section 255(2) of the Criminal Code.

[2] To find the Defendant guilty of the impaired operation of a motor vehicle causing bodily harm, the Crown must prove each of the following essential elements beyond a reasonable doubt:

1. That the Defendant operated a motor vehicle;
2. That the Defendant intended to operate a motor vehicle after he had consumed alcohol;
3. That the Defendant’s ability to operate a motor vehicle was impaired by alcohol; and
4. That the Defendant’s impaired ability to operate a motor vehicle caused Mr. Godin-Chevrier bodily harm.

[3] The Defendant admits the first and second essential elements of this charge.

[4] The trial addressed whether the Crown has established the remaining two essential elements of the charge beyond a reasonable doubt.

Background

[5] The Crown, the Defendant and counsel for the Defendant agreed to admit the following facts pursuant to s. 655 of the Criminal Code:

1. On September 7, 2016, the accused person in this case, Kunal Bulland, was operating a 2015 red Toyota Scion bearing license plate marker BXMT 812 in the City of Toronto. At approximately 12:25 a.m., Mr. Bulland was driving northbound on Danforth Road, just north of the intersection with Barrymore Road, when his vehicle struck a young man named Ian Godin-Chevrier. Mr. Bulland remained at the scene after the collision.
2. Prior to the collision, Mr. Godin-Chevrier was at the Scarborough General Hospital, located at 3050 Lawrence Avenue East. He had been admitted there after being found highly intoxicated by alcohol in a public place. After some time passed, Mr. Godin-Chevrier was medically cleared to leave and escorted by hospital security to the bus stop on Danforth Road. He subsequently boarded a Toronto Transit Commission (“TTC”) bus heading southbound on Danforth Road at approximately 12:23 a.m. on September 7, 2016.
3. At approximately 12:25 a.m., the bus stopped on Danforth Road, just north of Barrymore Road. Mr. Godin-Chevrier exited the side door of the bus. He then walked towards the back of the bus and proceeded to cross Danforth Road behind the bus towards the northbound lanes of traffic, prior to being struck by Mr. Bulland’s vehicle. This is captured on surveillance video footage from the interior of the TTC bus, which will be filed as an exhibit. The time and date stamps on this video footage are accurate.
4. Mr. Godin-Chevrier was 23 years old at the time and had been residing with his mother in Scarborough. He was working part-time doing general labour construction and had been attending school part-time to obtain his high school diploma. He had no significant health issues prior to the collision.
5. Mr. Godin-Chevrier suffered significant bodily harm as a result of the collision. He was critically injured and rushed to Sunnybrook hospital in life-threatening condition. Most significantly, he suffered severe traumatic brain damage, which required a part of his skull to be removed to relieve pressure. Other injuries included a broken lower tibia in his left leg, a broken right wrist, a broken facial bone in the right side of his face, ocular nerve damage to his right eye and liver damage. He required multiple surgeries to treat the brain injury and broken bones.
6. Mr. Godin-Chevrier remained in Sunnybrook hospital for approximately 8 months. He was then transferred to the Salvation Army Toronto Grace Rehabilitation Centre, where he remains presently. He continues to suffer from hydrocephalus, with the accumulation of fluid in his brain creating pressure in his skull. He is confined to a bed and cannot move on his own, nor can he operate a wheelchair on his own. He has lost the ability to use the entire left side of his body, including his leg, arm and hand. He has difficulty seeing out of his right eye and has been diagnosed with aphasia, which impairs his ability to process language and speak. He requires assistance to eat and cannot control his bowels. He suffers from ongoing depression.
7. Mr. Godin-Chevrier’s long-term prognosis is bleak. He will never be able to walk again. There is a slight possibility that further surgery to his head could reduce swelling and allow him to recover some use of the left side of his body and improve his speech. However, he will never be able to care for himself without assistance and will never be able to work again.

[6] The Crown called seven witnesses and the Defence called one witness, the Defendant, to testify.

Jeffrey Thomas

[7] Jeffrey Thomas is a 29 year old bricklayer. Mr. Thomas testified that between 11 p.m. and midnight on September 6, 2016, he had left a casino and was driving his motor vehicle, accompanied by his cousin who was sleeping the passenger seat, southerly in the curb lane along McCowan Road south of Lawrence Avenue to a point where the street becomes Danforth Road. Mr. Thomas was on Danforth Road, just north of Hollyhedge Road, when he observed the Defendant’s motor vehicle, moving northerly on Danforth Road, strike Mr. Godin-Chevrier about ½ block south of Hollyhedge Road at a point that is just south of the entrance to the parking lot of public library. Mr. Thomas noticed that Mr. Godin-Chevrier ran in a “light jog”, not a sprint, in a diagonal easterly direction across Danforth Road from the bus stop towards the driveway of the public library on the other side of Danforth Road. He states that about 3 or 4 seconds passed from the time that he first saw Mr. Godin-Chevrier to the time that he was struck by the Defendant’s motor vehicle. Mr. Thomas was listening to music in his motor vehicle and his windows were closed. He did not hear any noises or screeching of brakes. Mr. Thomas recalled that Mr. Godin-Chevrier had been wearing dark clothes with no features that stood out other than a hat that had a red brim.

[8] Mr. Thomas stated that the temperature was about 10 degrees Celsius that evening. The road in that area was “kind of dark”, “dark” and “barely lit”. He stated that there were street lights on the east side of Danforth Road in the area of the library and that there were trees along the west side of Danforth Road. However, he stated that it was not difficult for him to see Mr. Godin-Chevrier cross the road.

[9] After observing the collision, Mr. Thomas continued about ½ block further south and watched Mr. Godin-Chevrier fly through the air and land on Danforth Road just north of the parking lot entrance. Mr. Thomas pulled over in his motor vehicle approximately opposite the location where Mr. Godin-Chevrier landed.

[10] Mr. Thomas did not notice any other motor vehicles in the area of the accident other than a bus operated by the Toronto Transit Commission (“TTC”). The bus was stopped in the curb lane some distance ahead of his motor vehicle. He then noticed the bus drive away southerly on Danforth Road through the traffic lights located at its intersection with Barrymore Road.

[11] After the collision, Mr. Thomas left his motor vehicle and went immediately over to Mr. Godin-Chevrier to check on his condition and then called 9-1-1. He saw that Mr. Godin-Chevrier was curled up on his side, bleeding from his head and stomach and his eyes, not blinking, were rolled back. He quickly asked the Defendant if he was okay and spoke to him for about 30 seconds before returning to stay with Mr. Godin-Chevrier until an ambulance arrived. Mr. Thomas came to within about one metre of the Defendant when he spoke to him. The Defendant did not say anything to him. He did not observe any injuries and noticed that the Defendant was not panicking. Later, Mr. Thomas found a cell phone on Danforth Road in the vicinity of the collision and gave the cell phone to a firefighter. He also found a hat.

Brian Tucker

[12] Brian Tucker is 62 years old and has driven a bus for the TTC for the last 13 years. He started driving large motor vehicles in 1986 and worked, for 15 years, as an examiner for the Ministry of Transportation prior to joining the TTC.

[13] Mr. Tucker recalls that he started his shift in the late evening of September 6, 2016. He recalls that his shift ended at 2 p.m. on September 7, 2016 and that he did eight trips along McCowan Road/Danforth Road during that shift. On his fourth or fifth shift that evening, Mr. Tucker recalls that he had stopped his bus at a bus stop located southbound on McCowan Road at Lawrence Avenue. When his doors opened to take on passengers, two security guards asked him whether he would give a ride to Mr. Godin-Chevrier who did not have bus fare. Even though he was unable to pay bus fare, Mr. Tucker did not deny him entry onto the bus given that he had come from the hospital (as indicated by the blue and white wristband that Mr. Godin-Chevrier wore) and appeared to be inebriated but not a threat.

[14] Mr. Tucker described Mr. Godin-Chevrier as about 20 years old, wearing a baseball cap, blue jeans, a T-shirt or golf shirt and a carrying a cell phone. After boarding the bus, Mr. Godin-Chevrier sat in the front half of the bus. He paid little attention to Mr. Godin-Chevrier as he “behaved himself” while he was on the bus. Mr. Godin-Chevrier’s cell phone rang and he held the phone to his ear. Within two bus stops of getting onto the bus, Mr. Godin-Chevrier rang a bell to get off the bus. Mr. Tucker stopped in the curb lane of southbound Danforth Road (as there is no cut out lane for exiting a bus at that location) at its intersection with Barrymore Road (while the traffic lights were green) and Mr. Godin-Chevrier exited the bus by the door at the middle of the bus. Using the mirrors on the side of the bus, Mr. Tucker watched Mr. Godin-Chevrier walk outside towards the rear of the bus. As other passengers often do, he expected that Mr. Godin-Chevrier would “j-walk” by crossing Danforth Road north of the intersection. At this point, Mr. Tucker noticed the Defendant’s motor vehicle travelling in a northerly direction on Danforth Road at about the speed limit, which is 60 km/h in that location. The traffic lights at the Barrymore Road were green nevertheless Mr. Tucker waited as he had “a feeling” that there might be a collision given that the Defendant motor vehicle did not slow down when approaching Mr. Godin-Chevrier and given that Mr. Godin-Chevrier was impaired, had his cell phone to his ear and was not looking in the direction of the Defendant’s motor vehicle.

[15] Using his other mirror he noticed Mr. Godin-Chevrier move from behind his bus and cross the road. He did not see him run or jog. There was no urgency to Mr. Godin-Chevrier crossing the road. He estimated that about 5 to 10 seconds passed from the time that he left the curb on the west side of the Danforth Road to the time of the collision. He estimated that about five seconds passed from the time that he emerged from behind the bus to the time that the collision occurred. He saw Mr. Godin-Chevrier fly into the air after the collision. Mr. Tucker estimated that the collision occurred about 100 feet behind his bus and given that his bus was 40 feet long, the collision would have occurred about 60 feet from the rear of his bus. He had seen other pedestrians struck in similar circumstances where neither the driver or the pedestrian was going to stop or get out of the way.

[16] After the collision, the Defendant motor vehicle stopped. He did not see or hear any sign of the Defendant motor vehicle attempted to brake or stop. The window of Mr. Tucker’s bus was open and he did not hear any screeching sounds of tires. He did not know how long the Defendant motor vehicle travelled after the collision before it stopped but he did notice the brake lights activated after the collision. After the collision, Mr. Tucker reported the accident to the TTC Response Centre.

[17] Mr. Tucker recalls that the road on Danforth Road that evening was dry. It was a clear night. There was no fog. The street lighting was normal. There was no difficulty seeing the road. There were no obstructions driving northbound. All lanes were open. Relying on his experience in having driven that route many times, Mr. Tucker stated that a person would have been able to observe the victim in the roadway at the location that the Defendant’s motor vehicle was located.

[18] Various surveillance cameras on the bus that evening show:

• Mr. Godin-Chevrier enters the bus at about 12:23:43 a.m. wearing a T-shirt;
• Mr. Godin-Chevrier can be seen answering a call on his cell phone at about 12:24:41 a.m.;
• Mr. Godin-Chevrier exiting the bus at about 12:25:35 am with his cell phone to his right ear;
• An image of Mr. Godin-Chevrier can be seen in the back window of the bus (driver’s side) outside the bus at about 12:25:45 a.m.;
• The light of the Defendant’s motor vehicle can be seen through the passenger window at about 12:25:47 a.m;
• Image of rear car lights of the Defendant’s motor vehicle moving northbound on Danforth Road are seen through the window of the bus (driver’s side) closest to the bus driver at about 12:25:48 a.m.;
• Passengers on the bus turned around to look out of the back windows at about 12:25:54 a.m.

P.C. Jason Vincent

[19] Police Constable Jason Vincent has member of the Toronto Police Service (“TPS”) for twelve years. PC Vincent was dispatched to this collision at 12:37 a.m. on September 7, 2016. He arrived shortly after being dispatched. At that point, an ambulance was leaving the scene of the collision with Mr. Godin-Chevrier. There was a TTC bus parked nearby. On the road, PC Vincent noticed a hat and some car parts, such as glass and a grille. He also observed that the Defendant’s motor vehicle, a Scion, was straddling the yellow centre lane marking on Danforth Road. The motor vehicle had damage to the front passenger side windshield.

[20] The road conditions that evening were dry, mainly clear and warm (about 25C). The lighting was mainly provided by pole lamps. The lighting in the area was good. There were no turns in the roadway. The road was “good and open”. There were no hills. There were no distractions in the roadway.

[21] PC Vincent spoke for 2 or 3 minutes with the Defendant after he arrived. He did not smell any alcohol from the Defendant however PC Vincent states that he did not get that close to the Defendant in order to smell alcohol as he stood six to eight feet away. Given that he was the only police officer at the scene and given that the roadway was still open, PC Vincent went to secure the area from traffic by running yellow tape around the perimeter of the road.

[22] By the time that he had completed this task another officer had arrived and she had obtained a breath sample form the Defendant.

[23] The Defendant was arrested at about 1:22 am and later paraded before the Booking Sergeant at 41 Division at 1:36 a.m.

[24] PC Vincent states that the Defendant had glassy eyes and a strong smell of after shave cologne that entire evening. He thought that the Defendant was under the influence of alcohol or drugs due to his demeanour, glassy eyes and how he was standing, however after viewing a video tape at the booking desk PC Vincent agreed that the Defendant was standing in a stable manner.

[25] The Defendant provided further breath samples and was released from police custody at 6:55 a.m.

P.C. Michelle Garceau

[26] Police Constable Michelle Garceau has been with the Traffic Services Unit of the TPS since August, 2014. PC Garceau was assigned to the scene of this collision by a dispatcher at 12:46 am and she arrived at the scene at 12:52 a.m. on September 7, 2016. Upon arrival, PC Garceau observed: 1) that there was tape around the perimeter of the scene of the collision; 2) the Defendant’s motor vehicle, a red 2015 Toyota Scion, was in the left lane of the northbound lane of Danforth Road; 3) there was blood on the road in the northbound curb lane further north from the vehicle; 4) a baseball cap was south of the Defendant’s motor vehicle in the left lane. She also observed the Defendant’s vehicle in the left lane of the northbound lane of Danforth Road on an angle facing northeast.

[27] PC Garceau then approached the Defendant, who was standing outside a police scout car, and spoke with him. After the Defendant told her that he had been to a concert earlier that evening, PC Garceau suspected that he had consumed alcohol. At about 12:55 a.m., PC Garceau asked the Defendant to provide a breath sample into a screening device. The Defendant did so and failed the alcohol screening test. He was then arrested at 1:21 a.m. for operating a motor vehicle with a blood alcohol concentration (“BAC”) over 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of the Criminal Code.

[28] During the above period, PC Garceau stood very close to the Defendant and she observed that:

• The Defendant’s eyes were bloodshot and glossy;
• She could detect an odour of alcohol from the Defendant’s breath when he spoke;
• The Defendant appeared nervous and defensive. The Defendant told PC Garceau that he “doesn’t drink and drive”.

[29] As a result of the above observations, as well as the fact that his automobile had struck a pedestrian, PC Garceau believed at that time that the Defendant was impaired by alcohol.

[30] After 1:12 a.m., the Defendant was taken by other police officers to 41 Division to provide a breath sample using an approved instrument and a qualified breath technician.

[31] PC Garceau then prepared a motor vehicle collision report. She made the following observations:

• The roads were dry and visibility was clear;
• The light in the area of the collision was dark, artificial lighting; and
• There was nothing unusual about the roadway in the area of the collision;

P.C. Neil Sanders

[32] Police Constable Neil Sanders has worked for the TPS for 23 years. After receiving training on its operation, he has been a Certified Breath Technician for the Intoxilyzer 8000C since February 8, 2010. PC Sanders takes an annual course and examination on the use of this instrument. He has performed about 500-700 breath tests using the Intoxilyzer 8000C.

[33] In the early morning of September 7, 2016, PC Sanders was directed to attend 41 Division to perform a breath test involving the Defendant. He arrived at 1:46 a.m. and performed a calibration and diagnostic check on the Intoxilyzer 8000C located at 41 Division. It passed these checks. The Defendant was brought into the room for his first breath test at 2:20 a.m. They sat two feet apart. PC Sanders detected a slight odour of alcohol from the Defendant’s breath. He also noticed that his eyes seemed “bloodshot” and “red”. There were no other apparent effects of alcohol. The Defendant was cooperative, polite and talkative. The Defendant’s first breath sample was provided at 2:29 a.m. It show that the Defendant had 85 mg of alcohol in 100 ml of blood. The Intoxilyzer 8000C does not permit a second sample for 17 minutes. The Defendant was brought back into the room at 2:47 am. This instrument went through a second round of calibration and diagnostic checks which it passed. The Defendant’s second breath sample was provided at 2:51 a.m. It showed that the Defendant had 84 mg of alcohol in 100 ml of blood. The redness of the Defendant’s eyes could not be seen in the videotape of the breath test.

Elizabeth Hird

[34] Elizabeth Hird is a forensic toxicologist with the Centre of Forensic Sciences. Ms. Hird was qualified to give opinion evidence in four areas of forensic toxicology:

• The ingestion, absorption, distribution and elimination of alcohol in the human body;
• The calculation of blood alcohol concentrations in the human body;
• The theory and operation of approved instruments including the Intoxilyzer 8000C; and
• The effects of alcohol on human body with respect to operating motor vehicles.

[35] Having considered a number of factors, including the two readings obtained from the Intoxilyzer 8000C on September 7, 2016, Ms. Hird opined that the Defendant’s blood alcohol concentration between 12:26 a.m. and 12:28 a.m. on September 7, 2016, was between 80 to 120 milligrams of alcohol in 100 millilitres of blood.

[36] Ms. Hird states that this projection was independent of gender, height, age and weight. This projection is also based on the following conservative assumptions:

• A plateau period (the period of time when the amount of alcohol being absorbed into the bloodstream is fairly similar to the amount of alcohol being eliminated from the bloodstream) of 2 hours which is extremely rare given that the scientific literature shows that the plateau period usually lasts only for a few minutes;
• A rate of elimination of between 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour. The alcohol elimination rate for the vast majority of the population comes within this range;
• There was no consumption of large quantities of alcohol beverages within approximately 15 minutes prior to the time of the collision; and
• No alcohol was consumed between the time of the collision and the time of the breath test.

[37] Ms. Hird stated that her calculation of the Defendant’s projected BAC at the time of the collision was conservative given that:

• She truncated down the blood alcohol concentration readings from the Intoxilyer 8000C to 80 milligrams of alcohol in 100 millilitres of blood in order to account for any variability in the instrument;
• She deducted 20 milligrams of alcohol in 100 millilitres of blood from the lower end of the projected BAC range that she calculated in order to account for a plateau period of up to two hours; and
• Based on current literature, the Intoxilyzer 8000C, which converts a breath sample measurement into a blood alcohol concentration measurement, appears to underestimate a person’s blood alcohol concentration.

[38] Ms. Hird explained that the consumption of alcohol acts as a central nervous system depressant. Alcohol reduces the brain’s ability to both notice things or to take in information and it also slows down the processing of that information. Studies have shown that when a person consumes alcohol, approximately 80% of it is absorbed in the first ten minutes after consumption and the majority of the alcohol is absorbed within 15 minutes after consumption.

[39] Ms. Hird testified that the operation of a motor vehicle is a complex task as it engages a number of faculties at the same time such as divided attention, choice reaction time, judgment of speed and distance, assessment of risk and vigilance.

[40] Divided attention refers to the need for the operator of a motor vehicle to maintain their attention on a number of cues almost simultaneously such as monitoring what is happening in front of you, the road ahead, things that might be on either side of you, traffic conditions, monitoring how fast your motor vehicle is moving and maintaining your lane position. Ms. Hird stated that studies show that the faculty of maintaining divided attention is the most sensitive to alcohol as impairment of this faculty has been seen at blood alcohol concentrations as low as 15 mg of alcohol in 100 ml of blood. The impairment of this faculty increases as blood alcohol concentration increases.

[41] Choice reaction time refers to the ability of a person to notice a situation that is happening in front of them, to process that information, to decide how they will respond to that situation and then implement that decision. Studies show that this faculty begins to be impaired when blood alcohol concentrations reach 50 mg of alcohol in 100 ml of blood. Their response times, their ability to make choices and their ability to implement those choices is slower. Further, their choices may be less well thought out and more risky compared if there was no alcohol in their system.

[42] Based on her review of the scientific literature, Ms. Hird has a high degree of scientific confidence that impairment begins at 50 mg of alcohol in 100 ml of blood is the point at which all individuals would show impairment of their driving faculties. She indicates that impairment increases as the blood alcohol concentration increases. Ms. Hird indicated that this view is shared amongst her colleagues in the toxicology section at the Centre of Forensic Science.

[43] Ms. Hird stated that a person with a blood alcohol concentration of 80 mg of alcohol in 100 ml of blood would have a significantly higher degree of impairment than a person driving with a BAC of 50 mg of alcohol in 100 ml of blood. Such impairment could be reflected in the divided attention faculty, including a person’s ability to see a pedestrian in the roadway, as well as a person’s vision may be impaired either by becoming blurry or by developing a “tunnel vision”.

[44] Ms. Hird distinguished “impairment” from “intoxication”. Intoxication refers to the observable physical effects of alcohol on the body such as slurred speech and a flushed face. Impairment refers to psychomotor effects of alcohol on the brain such as the ability to follow through with thought processes. Ms. Hird stated that a person who frequently consumes large quantities of alcohol can gain tolerance to its intoxicating effects but not to its impairment or psychomotor effects. Impairment becomes more evident if the task performed is a complex task, such as operating a motor vehicle, rather than a simple task such as walking.

[45] Ms. Hird also testified that people typically underestimate their level of impairment. It was her view that a person with a BAC of 80 mg of alcohol in 100 ml of blood would be impaired even if they were able to walk, listen and speak and did not exhibit any obvious signs of impairment as a person may be able to perform simple tasks, such as having a conversation, but be unable to perform a complex task such as operating a motor vehicle.

[46] In re-examination, Ms. Hird considered the Defendant’s evidence that he had consumed three pints of beer between 5:40 p.m. and 8:40 p.m. on the evening of the collision. Ms. Hird opined that a person with the Defendant’s weight (73 kg) and height (178 cm) who consumed three pints of Miller Genuine Draft beer of 473 ml each, with 4.7% alcohol, starting at 5:40 p.m. and ending at 8:40 p.m., would have had between 0 and 42 mg of alcohol in 100 ml of blood between 12:24 a.m. and 12:28 a.m. later that evening assuming an elimination rate of between 10 to 20 mg of alcohol in 100 ml of blood per hour and assuming that this person’s BAC was zero at the time that he started drinking beer. If this person weighed only 65 kg, rather than 73 kg, then his BAC at the relevant times would have been between 0 and 56 mg of alcohol in 100 ml of blood.

[47] Ms. Hird opined that the minimum number of beers, described above, that a person weighing 65 kg and 178 cm tall, who started drinking beer at 5:40 p.m., would have had to consume between four and six pints of beer to have a BAC in the range of 80 to 120 mg of alcohol in 100 ml of blood at 2:29 am.

P.C. Mark Anthony Chin

[48] Police Constable Mark Anthony Chin, is an accident reconstructionist, and was tendered as an expert in accident reconstruction and, particularly, in the following areas:

• Motor vehicle mechanics and fitness;
• The interpretation of forensic evidence at a collision scene such as debris, skid marks and vehicle damage;
• The calculation of speeds and distances involved in collision dynamics;
• The retrieval and interpretation of crash data from a motor vehicle’s computer system; and
• The typical human reaction times and stopping distances while operating a motor vehicle.

[49] PC Chin obtained a Bachelor of Applied Science in Mechanical Engineering in 1991. He has been a member of the Toronto Police Services’ Collision Reconstruction Unit since October 2009. PC Chin has completed several courses in collision reconstruction as well as an apprenticeship of about one year. In November 2010, PC Chin was designated as a collision reconstructionist after receiving the approval of a board of his peers. He has subsequently taken about 10 to 15 continuing education courses in the area of collision reconstruction. PC Chin is also a member of the Canadian Association of Technical Accident Investigators and Reconstructionists. He has been the lead collision reconstructionist in at least 90 collision investigations.

[50] The Defence did not oppose PC Chin being qualified as an accident reconstruction expert. Given his extensive experience and training in this area, I accept PC Chin as an expert in accident reconstruction including in the areas described above.

[51] PC Chin arrived at the scene of the collision at about 3:21 a.m. on September 7, 2016. The area was closed off to traffic. He recalled that the weather had not changed much through the night. The temperature was about 25 degrees Celsius. The surface of the road was dry. There were two lanes in each direction on Danforth Road separated by a yellow centerline. Its intersection with Barrymore Road was controlled by automatic traffic lights. The posted speed limit for Danforth Road at this location was 60 kilometres per hour. In the vicinity of the collision, the west side of Danforth Road was illuminated by street lights and the east side of Danforth Road was only illuminated by a single street light that was in front of the Bendale Library. The Defendant’s automobile, predominantly in the passing lane, appeared to have recent collision damage on its passenger side particularly on its hood and windshield. There was a debris field behind that automobile – specifically glass fragments and a baseball cap.

[52] From the location of the glass fragments, PC Chin formed the opinion that the collision occurred in northbound passing lane. The southerly most debris was found at 5.8 metres west of the east curb of Danforth Road and 27.65 metres north of the north curb of Barrymore Road. PC Chin opined that this location was the general area of the collision impact.

[53] He did not observe visible tire marks on the surface of Danforth Road. PC Chin stated the Defendant’s automobile had ABS brakes. He stated that automobiles with ABS brakes tend to leave very faint skid marks that vanish in a very short space of time. However, if there had been hard braking, PC Chin would have still expected to see evidence of skid marks three hours later. Further, if there were no observable skid marks on the roadway immediately after the collision, PC Chin believed that there would not have been any hard braking.

[54] From his examination of the roadway, it was PC Chin’s view that Mr. Godin-Chevrier came to a rest about 29.35 metres from the location of the collision. He also opined that Mr. Godin-Chevrier travelled at a speed of between 58 and 71 kilometres per hour after being struck by the Defendant’s automobile. PC Chin stated that the speed that a pedestrian is walking at the time of impact has little, if any, relevance in determining the pedestrian’s speed after impact unless the pedestrian was travelling in the same direction as the automobile at the time of impact. If the pedestrian was walking in a direction that is diagonal to the direction of the automobile, the collision might add a few kilometres per hour, if anything, to the pedestrian’s speed following the collision.

[55] It was PC Chin’s opinion that the Defendant’s automobile was travelling at a speed of between 71 and 86 kilometres per hour at the time of impact with Mr. Godin-Chevrier.

[56] PC Chin carefully reviewed the videotapes from the cameras on the TTC. He examined the video on a frame by frame basis for the few seconds after Mr. Godin-Chevrier exited the bus. The video shows Mr. Godin-Chevrier walking across the southbound lanes of Danforth Road towards the east side of Danforth Road. Mr. Godin-Chevrier is seen to have crossed over into the northbound passing lane at 12:25:48. The headlights of a vehicle are seen approaching Mr. Godin-Chevrier. The brake lights of the vehicle suggest that the vehicle is braking. PC Chin stated that he believes that the collision occurred at frame 18 at 12:25:48. PC Chin also opined that Mr. Godin-Chevrier would have been visible to the Defendant when he was 98.7 metres south of the point of the collision.

[57] PC Chin stated the general consensus in the scientific literature is that the amount of time that it takes for a normal person driving an automobile to perceive a hazard in the roadway and to commence reacting to that hazard for instance by braking or taking other evasive measures, is 1.5 seconds (“perception/reaction time”).

[58] PC Chin opined on whether the Defendant’s automobile would have come to have a stop prior to the point of collision with Mr. Godin-Chevrier based on differing assumptions of the Defendant’s perception/reaction time and the speed of his automobile. In all cases, the Defendant’s automobile would have come to a stop prior to the point of collision.

Perception/Reaction Time - 1.5 seconds

Automobile travelling at 60 km/h Distance south of the point of collision that Mr. Godin-Chevrier would have been visible to the driver: 68.8 metres Distance travelled during the 1.5 second perception/ reaction period: 25.02 metres Distance required to stop if brakes applied: 18.64 metres Distance from point of collision where automobile comes to a complete stop: 25.22 metres

Automobile travelling at 71 km/h Distance south of the point of collision that Mr. Godin-Chevrier would have been visible to the driver: 81 metres Distance travelled during the 1.5 second perception/ reaction period: 29.59 metres Distance required to stop if brakes applied: 26.11 metres Distance from point of collision where automobile comes to a complete stop: 25.78 metres

Automobile travelling at 86 km/h Distance south of the point of collision that Mr. Godin-Chevrier would have been visible to the driver: 98.7 metres Distance travelled during the perception/reaction period: 35.85 metres Distance required to stop if brakes applied: 38.31 metres Distance from point of collision where automobile comes to a complete stop: 24.54 metres

Perception/Reaction Time – 2 seconds

Automobile travelling at 60 km/h Distance south of the point of collision that Mr. Godin-Chevrier would have been visible to the driver: 68.8 metres Distance travelled during the 2 second perception/reaction period: 33.36 metres Distance required to stop if brakes applied: 18.64 metres Distance from point of collision where automobile comes to a complete stop: 16.88 metres

Automobile travelling at 71 km/h Distance south of the point of collision that Mr. Godin-Chevrier would have been visible to the driver: 81 metres Distance travelled during the 2 second perception/ reaction period: 39.46 metres Distance required to stop if brakes applied: 26.11 metres Distance from point of collision where automobile comes to a complete stop: 15.91 metres

Automobile travelling at 86 km/h Distance south of the point of collision that Mr. Godin-Chevrier would have been visible to the driver: 98.7 metres Distance travelled during the perception/reaction period: 47.8 metres Distance required to stop if brakes applied: 38.31 metres Distance from point of collision where automobile comes to a complete stop: 12.59 metres

[59] Based on his review of the video taken from the TTC bus, it was PC Chin’s view that Mr Godin-Chevrier was walking at rate of 1.19 to 1.44 metres per second assuming that Mr. Godin-Chevrier was travelling perpendicular to the curb of Danforth Road. He described this speed as walking rather than jogging or running. However, if Mr. Godin-Chevrier was walking diagonally across Danforth Road, then his speed would be higher.

[60] The Defendant’s automobile was examined by PC Chin. He noted the following damage:

• Two plastic items on the grille were missing (and had been found at the scene of the collision);
• A fairly large indentation on the right side of the front hood and a resulting gap in the hood just above both headlights;
• An area of the front bumper had been “cleaned” meaning that something had come into contact with the bumper and removed the dirt on the surface of the bumper;
• The passenger side of the front windshield was fractured and indented; and
• The side mirror assembly on the passenger side of the automobile was partially detached.

[61] Given the damage to the Defendant’s automobile, it was PC Chin’s view that the automobile had struck a pedestrian.

[62] PC Chin examined the area of the front wheel on the driver side of the automobile. He did not observe any damage in that area. His view was that a photograph of that area taken at the scene of the collision gives the impression of scuffing in that area. However, he stated that such scuffing was not existent when he examined the automobile. He attributed the impression of scuffing to the reflection in the paintwork from the roadway.

[63] PC Chin dismissed the possibility, based on the damage that he observed and the injuries suffered by Mr. Godin-Chevrier to his body, particularly the fracture to his right lower leg, that Mr. Godin-Chevrier impacted the driver side of the automobile, caused the scuff mark on the driver side of the automobile and then caused the damage to the passenger side windshield. Even if the automobile was travelling at 45 km/h when Mr. Godin-Chevrier walked into the front left side of the automobile, the left side driver’s mirror would have been impacted and Mr. Godin-Chevrier’s body would have fallen to the left side of the automobile at some point rather than being projected forward into the northbound curb lane where the blood pool was discovered.

Kunal Bulland

[64] The Defendant is a 35 year old single man. He obtained his “G” drivers licence when he was about 18 years old. At the time of this collision, he drove a 2015 Toyota Scion that he had leased in July, 2015. It had no mechanical issues at the time of the collision.

[65] At the time of the collision, the Defendant was a full-time account manager for an athletic facility. In the period before September, 2016, the Defendant drank alcohol on the weekends. On a typical night he would drink three beers.

[66] On September 6, 2016, he had taken the day off work because he had purchased two VIP tickets, at a cost of $570 each, for himself and a date, Ms. Atieya Mansoor, to a hip hop concert that evening at the Air Canada Centre in Toronto. The VIP ticket permitted him and his date to enter the concert venue at 5:30 pm for free food and drink in the Platinum Lounge area for about three hours prior to the start of the concert. The Defendant and Ms. Mansoor entered the VIP area at about 5:30 pm that evening. Ms. Mansoor did not drink any alcohol beverages that evening. The Defendant had not consumed any alcohol prior to arriving at the ACC. The Defendant obtained one beer at about 5:40 or 5:45 p.m. He drank the beer over a period of about 45 to 60 minutes while eating finger foods. At about 7 p.m. the Defendant obtained a second beer. He finished the second beer about 45 minutes later. He also ate finger foods during this period. Although the concert was scheduled to start at 8 p.m., it did not begin until 9 p.m. The Defendant obtained a third beer at about 7:55 or 8:00 p.m. He also ate a slice of pizza. It was about 8:40 p.m. when he finished his third beer and left the VIP area and entered the arena to watch the concert. The concert continued until 11 p.m. The Defendant did not consume any more alcohol that evening. Between 10 p.m. and 10:30 p.m., the Defendant purchased a slice of pizza for Ms. Mansoor and one bottle of water for each of them. After the concert, the Defendant and Ms. Mansoor went to a bar near the Air Canada Centre. He ate a hamburger and drank water. No alcohol was consumed. The Defendant left the bar at about 11:30 p.m. He parted ways with Ms. Mansoor and took public transit to return to the Kennedy subway station where he had parked his car. He arrived there at about 12:10 a.m. and walked to his car.

[67] The Defendant called a friend who lived about 12 to 13 minutes away from the Kennedy subway station and obtained his approval to “crash” at his home for the evening. The Defendant also called his father, whose home was very close to his friend’s home, and obtained his permission to come by to pick up a suit to wear to work the next day.

[68] On the way to his father’s home, the Defendant drove along Danforth Road. As he approached Barrymore Road, at the posted speed limit of 60 km/h, the Defendant noticed a TTC bus that was stopped at Barrymore Road.

[69] The Defendant testified that Danforth Road is flat in the area of the collision and for probably more than 50 to 100 metres both south and north of the bus stop located on the north side of its intersection with Barrymore Road. He also stated that on the evening of the collision there was no significant fog or anything of that nature.

[70] The Defendant was at a distance of about 70-100 metres from Mr. Godin-Chevrier, when her first saw Mr. Godin-Chevrier on Danforth Road. He saw Mr. Godin-Chevrier walk in a brisk and erratic manner across the southbound passing lane of Danforth Road towards the yellow centre line of Danforth Road. The Defendant did not observe anything in Mr. Godin-Chevrier’s hand. The Defendant immediately, but gradually, applied his brakes and reduced his speed to about 45 to 50 km/h. He expected that Mr. Godin-Chevrier, like other people who jaywalk, would wait at the centre line of the road until his automobile had passed or that he would run across the road before his automobile reached him.

[71] The Defendant stated that it never crossed his mind to move this motor vehicle into the curb lane although he agreed that it would have been safer to do so than to continue to travel in the passing lane. He also agreed that it would have been safer to hard brake his motor vehicle earlier.

[72] The Defendant testified that Mr. Godin-Chevrier stopped on or just before the centre line of Danforth Road when his motor vehicle was about 20-30 feet away from him. In reviewing a videotape from the TTC bus, the Defendant agreed that it appeared that Mr. Godin-Chevrier did not appear to stop while moving across the southbound lane of Danforth Road and that his right leg appeared to reach the centre line of Danforth Road at 12:25:46 a.m. Due to a pillar on the bus that obstructs the view and the movement of the bus, the TTC video does not show that Mr. Godin-Chevrier stopped at the centre line nor does it show him entering the northbound lane.

[73] The Defendant states that Mr. Godin-Chevrier was never in front of his automobile. Accordingly, the Defendant’s evidence is that his motor vehicle did not hit Mr. Godin-Chevrier, but rather that Mr. Godin-Chevrier collided with the Defendant’s motor vehicle by walking into the front right side of the motor vehicle in the area of the right front wheel. However, the Defendant states that he did not see Mr. Godin-Chevrier hit the side of his motor vehicle. The Defendant stated at this point that Mr. Godin-Chevrier was no longer in his area of vision as he would “… have to literally turn my head to a side to see him”. He identified an area of yellow scuffing on the right front side of his automobile as shown on a photograph taken at the scene as the point of impact. See Exhibit 15.

[74] After the collision, the Defendant recalled that Mr. Godin-Chevrier rolled off his car as he was hard braking. The Defendant walked over to Mr. Godin-Chevrier, who was lying in the northbound curb lane “a little bit ahead of where my car had come to a stop” in order to measure his pulse. A witness to this collision, Jeffrey Thomas, had reached Mr. Godin-Chevrier a few seconds earlier. Mr. Thomas told him not to touch Mr. Godin-Chevrier. Nonetheless, the Defendant did so because he wanted to see if Mr. Godin-Chevrier had a pulse. Mr. Thomas told the Defendant to sit at the side of the road. Mr. Thomas’ cousin immediately called 911.

[75] An ambulance arrived and tended to Mr. Godin-Chevrier. After Mr. Godin-Chevrier was on a gurney and before he was placed in the ambulance, the Defendant measured Mr. Godin-Chevrier’s pulse a second time and a paramedic told the Defendant that he should not have touched Mr. Godin-Chevrier. Shortly afterward, the police arrived. PC Vincent directed the Defendant to sit in a police squad car in order to preserve the scene of the collision.

[76] PC Garceau then arrived at the scene and spoke with the Defendant. The Defendant stated that PC Garceau asked him why he was wearing a wrist band. When he told PC Garceau that he had been at a concert and had drank a few beers, she called for an alcohol screening device to be delivered. The Defendant provided a breath sample. He failed the screening test and was placed under arrest and was taken to 41 Division. The Defendant stated that he did not feel that he was under the influence of alcohol or that “his senses were not fully there”.

[77] The Defendant described that he lived by a “three beer rule” in that he would generally not drive a motor vehicle if he had drank three beers in an evening unless sufficient time had passed after his consumption of beer and depending on the amount of food that he had consumed.

Issues

[78] This trial raises the following issues:

(1) Was the Defendant’s ability to operate the motor vehicle impaired by alcohol at the time of the collision? (2) If so, did the Defendant’s impairment cause Mr. Godin-Chevrier’s injuries?

Analysis

[79] The following general principles inform the determination of whether the Defendant is guilty as charged:

• The Defendant is presumed innocent of the charge;
• The Crown must prove the Defendant’s guilt of the charge beyond a reasonable doubt;
• The credibility and reliability of the evidence of the witnesses must be assessed. Credibility turns on the truthfulness of a person’s evidence. Reliability turns on the accuracy of a person’s evidence: R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), at para. 41.
• The assessment of the credibility and reliability of the Defendant’s evidence is important particularly because he has denied that being impaired and denied that the front of his motor vehicle struck Mr. Godin-Chevrier as he walked across the northbound lane of Danforth Road, the following principles be applied:
  • If I believe the Defendant’s evidence that he did not commit the offence charged, they I must find him not guilty;
  • If, after a careful consideration of all the evidence, I am unable to decide whom to believe, I must find the Defendant not guilty because the Crown would have failed to prove the Defendant’s guilt beyond a reasonable doubt;
  • Even if I do not believe the Defendant’s evidence, if it leave me with a reasonable doubt about an essential element of the offence charged, I must find him not guilty of the offence; and
  • Even if the Defendant’s evidence does not leave me with a reasonable doubt about an essential element of the offence charged, I may convict him only if the rest of the evidence that I accept proves his guilt beyond a reasonable doubt: R v. W.(D.), [1991] 1 S.C.R. 742, at pp. 757-758.

Issue #1: Was the Defendant’s ability to operate the motor vehicle impaired by alcohol at the time of the collision?

[80] In R. v. Bush, 2010 ONCA 554, at para. 47, the Ontario Court of Appeal stated:

Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd , [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.

[81] The following principles inform the determination of this issue:

• The ability of a person to operate a motor vehicle is impaired by alcohol if, due to the consumption of alcohol, the person drove with less ability than an ordinary, careful driver in similar circumstances;
• A person’s ability to drive may be impaired by alcohol even though there is no evidence of bad driving. Conversely, people may drive badly without being impaired;
• Accordingly, the issue is not whether the Defendant drove his motor vehicle improperly but rather whether his ability to drive the motor vehicle at the time of the collision was impaired by alcohol;
• Operating a motor vehicle requires a person to exercise both physical and mental ability;
• Physical ability refers to the ability of the driver to perform normal driving functions in a proper and timely way, for example:
  • Steering
  • Braking
  • Reacting to changing circumstances and conditions and so on.
• Mental ability has to do with
  • Perception
  • Judgment
  • Prompt and accurate assessment of existing or changing circumstances and conditions
• To decide whether the Defendant’s ability to operate a motor vehicle was impaired by alcohol, you must consider all the evidence including:
  • What and how much the Defendant had to drink and how quickly he did so;
  • The actual manner in which the Defendant drove;
  • The physical symptoms that the Defendant displayed;
  • The Defendant’s general conduct and appearance;
  • The presence or absence of a smell of alcohol on the Defendant’s breath;
  • The results of any scientific tests; and
  • The evidence of experts about blood alcohol concentration and the effect of alcohol consumption on physical and mental abilities: See David Watt, Watt’s Manual of Criminal Jury Instructions, (Toronto: Thomson Carswell, 2015), 2d ed., at pp. 866-867.

[82] Applying these principles to the evidence, I make the following findings:

• I accept the unchallenged expert opinion of Ms. Hird that the Defendant’s blood alcohol concentration at the time of the collision would have been between 80-120 mg of alcohol in 100 ml of blood given that his breath samples taken that evening showed that the Defendant had a blood alcohol concentration of 85 mg of alcohol in 100 ml of blood at 2:29 am and 84 mg of alcohol in 100 ml of blood at 2:51 a.m;
• I do not accept the Defendant’s evidence that he only drank three one pint glasses of beer with an alcohol content of about 4.7% prior to the collision. I prefer the opinion of Ms. Hird who gave her evidence in a straightforward and unbiased manner. She testified that, given the Defendant’s actual blood alcohol levels about two hours after the collision, and applying conservative assumptions, the Defendant would have to consume between four and six pints of beer at the concert to have had the blood alcohol concentration levels that were measured by the Intoxilyzer 8000C;
• The Defendant’s manner of driving placed Mr. Godin-Chevrier at greater risk of harm. Mr. Godin-Chevrier was a pedestrian who the Defendant appreciated was walking erratically across the road into the path of his motor vehicle. Rather than stop or take evasive action, the Defendant chose to slow down to about 45-50 km/h as he felt that Mr. Godin-Chevrier would either stop walking and not enter the northbound passing lane in which the Defendant was travelling or that he would run across the street to avoid a collision with the Defendant’s motor vehicle. The Defendant acknowledged that he could have tried to avoid a collision by “hard braking” and coming to a complete stop before reaching the point where Mr. Godin-Chevrier was standing in the road, or by moving to the curb lane, but he did neither. Given the risk of devastating consequences to a pedestrian, the Defendant’s exercise of judgment completely lacking in care.
• The Defendant displayed some of the physical indicia associated with impairment such as the smell of alcohol on his breath and red or bloodshot eyes.
• The Defendant’s conduct on two occasions to take Mr. Godin-Chevrier’s pulse prior to the arrival of the police supports the view that his judgment was impaired by alcohol as such behavior was completely inappropriate and disrespectful of the Mr. Godin-Chevrier’s personal dignity given that such action was driven not by a desire to help Mr. Godin-Chevrier but rather by his concern that the potential criminal consequences for him could be much more profound if Mr. Godin-Chevrier died;
• Ms. Hird’s unchallenged opinion evidence is that the ability of any person to operate a motor vehicle with a blood alcohol concentration of 50mg of alcohol in 100 ml of blood becomes impaired affecting their cognitive faculties such as perception, reaction time, risk assessment and judgment. Such impairment only increases as the blood alcohol concentration increases. Ms. Hird also testified that a person driving with 80 mg of alcohol in 100 ml of blood, which I have found was the minimum blood alcohol concentration of the Defendant at the time of the collision, would have a greater impairment of his faculties.

[83] I do not accept the Defendant’s evidence that he was not impaired. First, given the unchallenged expert evidence of Ms. Hird, the Defendant’s own assessment of the whether he was impaired is unreliable given the impact that his blood alcohol levels that evening had on his cognitive functions. Second, in any event, the Defendant’s evidence on key points was not credible. Of particular relevance to this issue, it is clear from Ms. Hird’s unchallenged expert evidence that the Defendant understated the amount of alcohol that he consumed prior to the collision.

[84] The fact that the Defendant cooperated with police and walked without difficulty after the collision does not mean that his ability to operate a motor vehicle was not impaired. Those tasks, as Ms. Hird explained, are relatively simple when compared to the more complex task of operating a motor vehicle.

[85] Considering all the evidence, I have no reasonable doubt that the Defendant’s ability to operate a motor vehicle at the time of the collision was impaired by alcohol.

Issue #2: Did the Defendant’s impaired ability to operate a motor vehicle cause Mr. Godin-Chevrier’s injuries?

[86] To prove that an accused’s impaired ability to operate a motor vehicle caused another person’s injuries, the Crown is only required to establish that the conduct of the accused was a significant contributing cause. Equivalent ways of describing this standard include “a contributing cause outside the de minimus range”, “a contributing cause that is not trivial or insignificant”: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 71-73. The Crown must prove that the Defendant’s impaired ability to operate a motor vehicle was a contributing cause of the accident not that it was a substantial cause nor the substantial cause of the accident: R. v. Pinske, [1988] B.C.J. No. 1392, at para. 33 (B.C.C.A); aff’d , [1989] 2 S.C.R. 979. Accordingly, a Defendant may be guilty of this charge even though there was more than one contributing cause for the injury.

[87] The Defendant testified that Mr. Godin-Chevrier walked into the side of his motor vehicle near the front wheel and rolled across the hood and was then projected forward when the motor vehicle came to an abrupt stop. There is no physical or expert evidence to support the Defendant’s assertion. PC Chin opined that had this occurred the driver’s side mirror would have been impacted. In any event, PC Chin’s opinion was that, considering the physical damage to the motor vehicle amongst other things, Mr. Godin-Chevrier was struck by the Defendant’s motor vehicle while he was walking through the northbound passing lane of Danforth Road. I accept his unchallenged evidence. Further, I find that PC Chin’s view aligns with the TTC video which shows that Mr. Godin-Chevrier reached the centre line about two seconds before the collision.

[88] It is clear that the Defendant could have avoided this collision. Road conditions were good with artificial lighting and clear visibility. Mr. Thomas was the only witness to suggest that the lighting conditions were “dark”. I prefer the evidence of the other witnesses as the evidence of Mr. Thomas regarding conditions (such as temperature and road conditions) that evening was markedly inconsistent with the evidence of other witnesses. I find the evidence of Mr. Thomas on the issue of conditions that evening to be unreliable.

[89] The Defence in its closing submissions submitted that there was a slope in the level of the road in the vicinity of the collision which made it difficult for the Defendant, or any other driver, to react to Mr. Godin-Chevrier’s presence in the roadway. There is no evidence to support this submission. I decline the Defence’s suggestion that I take judicial notice of this “fact” by consulting Google Maps as it is inappropriate to do so. In fact, the Defendant testified that Danforth Road was flat for 50-100 metres in both directions from the area of the bus stop. The TTC video shows that Mr. Godin-Chevrier appeared from behind the bus and walked towards the centre line over a period of 4 seconds. The Defendant acknowledged that Mr. Godin-Chevrier was visible to the Defendant for about 4 seconds after he emerged from behind the TTC bus and that he was at a distance of 70-100 metres away at that point.

[90] Further, the evidence of PC Chin shows that the Defendant could have brought his motor vehicle to a complete stop well before the point of the collision. The Defendant also testified that his motor vehicle would not have collided with Mr. Godin-Chevrier had he “hard braked” when he first noticed him walking erratically towards the lane in which his motor vehicle was travelling.

[91] The TTC video shows that Mr. Godin-Chevrier walked continuously across the southbound passing lane and that he reached the centre line of the road about 2 seconds before the collision. Common sense and decency would have led a reasonable person, with time to assess a potential hazard in the road ahead, to take evasive measures to ensure that their motor vehicle did not collide with a person who appeared to be walking erratically into the path that their motor vehicle was travelling. Instead, in this case, the Defendant only slightly reduced his speed to 35-40 km/h per hour because he believed that Mr. Godin-Chevrier would stop at the centre line and that he should not be responsible for colliding with someone who was not already in the path of his motor vehicle. There is no dispute that the Defendant did not attempt to “hard brake” to avoid colliding with Mr. Godin-Chevrier. There were no skid marks at the scene or burn marks on the tires. The TTC driver, Brian Tucker, who had his window open, did not hear any screeching tires prior to the collision.

[92] As PC Chin’s evidence demonstrated, even if the choice reaction time was extended from 1.5 seconds to 2 seconds, the Defendant would have been able to come to a stop at least 10 meters before the point of collision. The Defendant failed to take any reasonable measures to avoid colliding with Mr. Godin-Chevrier. Instead, the Defendant’s motor vehicle struck Mr. Godin-Chevrier and projected him about 30 metres down the road.

[93] I am satisfied beyond a reasonable doubt that the impairment of the Defendant’s ability to operate a motor vehicle was a significant contributing cause of the bodily harm suffered by Mr. Godin-Chevrier.

Conclusion

[94] Stand up please Mr. Bulland. For the reasons set out above, I find you guilty of the charge set out in the Indictment.

FAIETA J.

Delivered Orally: February 19, 2019 Released: February 21, 2019