COURT FILE NO.: 18-400000554
DATE: 20190815
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jorge Gomes
Iain Sunderland, for the Crown
Alexander Morris and H. Motevalli, for the Accused
HEARD at Toronto: June 5-7, 2019
S.F. Dunphy J.
[1] Mr. Gomes has been charged with two counts of operating a motor vehicle while impaired by alcohol causing bodily harm contrary to s. 255(2) of the Criminal Code. The charges arise out of a collision between a pick-up truck and two pedestrians that occurred just before 2:00 a.m. on Saturday June 3, 2017.
[2] There are relatively few facts in significant dispute. The broad outlines of the accident and Mr. Gomes’ role in it have been reduced to an agreed statement of facts. The time, date and place of the accident are admitted as charged. The fact that Mr. Gomes was driving the vehicle involved in the accident - a Chevrolet Colorado pick-up truck - is admitted as is the fact that Mr. Gomes had a blood alcohol concentration at the time of the accident of between 150mg and 185 mg in 100ml of blood. The injuries sustained by the two pedestrians - Mr. Marchese and Mr. De Vellis – have been agreed to constitute bodily harm for the purposes of s. 255(2) of the Criminal Code.
[3] Causation of the accident itself has been the primary issue at the trial. Among other questions raised are whether the accident was inevitable by reason of the actions of the accident victims or whether the alcohol admittedly consumed by the accused played a role in the causation of the accident.
[4] The trial was held over three days and the defence elected to call no evidence. Each side presented written argument supplemented by oral arguments heard on August 15, 2019.
[5] For the reasons that follow, I have found Mr. Gomes guilty as charged on both counts. The Crown has proved beyond a reasonable doubt that Mr. Gomes was impaired while operating the motor vehicle in question and that as a result he caused bodily harm to the two named victims. The victims were walking or stationary near the median of a four-lane road in light traffic and reasonably well-lit conditions. The accused was operating his vehicle at an excessive rate of speed and had both the time and the available space upon the roadway to react to their presence and avoid a collision. There is no doubt that his state of impairment contributed in a material way to his decision to operate the vehicle at excessive speed, to his failure to have noticed the highly visible pedestrians in a timely way and to his failure to have taken steps to avoid the collision. The result of his conduct was grievous bodily harm inflicted upon both affected victims.
Background Facts
[6] Just before 2:00 a.m. on Saturday morning, June 3, 2017, three men left an Eglinton Avenue bar west of Dufferin Street named “Stefano’s Sports Bar” and proceeded to cross the street from the north side heading south. They were heading towards the home of one of them on Ennerdale Road proceeding on a slightly a diagonal path, Ennerdale intersecting with Eglinton about half a block east of their location. As they were crossing, at least two members of the group noticed the headlights of an approaching eastbound vehicle that had crested the slight hill coming up from Caledonia Rd. Those lights belonged to a patrolling tow truck being driven by Mr. Bryan Martins. The group stopped to let Mr. Martins’ vehicle pass them by at or about the centre line of the roadway before proceeding to cross the southern half of the road.
[7] They never got a chance to continue their crossing. Soon after Mr. Martins’ tow truck had passed them, they were hit by a four-door pick-up truck driven by Mr. Gomes proceeding in the opposite direction. None of them saw it coming. The violence of the collision pitched two of the men, Mr. Marchese and Mr. De Vellis, into the air. They suffered very serious injuries from which they have not yet recovered. The third man, Mr. Hedman, was not hit and escaped without injury.
[8] Mr. Gomes’ pick-up truck came to a stop after a short distance, leaving several yards of tire marks in its rear. Photographs taken at the scene show that the tire marks were quite straight. There is no sign in those marks at least of any evasive action having been attempted by Mr. Gomes. The violence of the collision is evident from the fact that the two victims were thrown some distance in the air, landing in front of the place where the braking pick-up truck finally came to a full stop. The front end of the vehicle suffered very severe damage – the hood was crumpled, the grill ripped off and signs of a violent collision are obvious on the police accident scene photographs. Engine fluids were visible leaking from the damaged pick-up truck on to the roadway.
[9] The tow-truck driver Mr. Martins heard the loud sound of what he immediately knew to be a collision shortly after passing the three men. He quickly came to a stop, executing a U-turn to return to the scene to offer help. Officer Persichetti was some distance south of Eglinton Avenue on Nairn Avenue (less than a block to the west). He was close enough to have heard the loud bang and responded to the 1:57 a.m. radio call of a possible shooting. His patrol car was the first police car on the scene moments later, although on-lookers and pedestrians had already congregated on the sidewalks on both sides of the street.
[10] Mr. Gomes remained at the scene and was arrested, subsequently providing the breath tests from which it was determined that his blood alcohol concentration at the time of the accident was between 150mg and 185mg of alcohol per 100ml of blood which figure, the parties agree, represents the blood alcohol content of Mr. Gomes’ blood while driving the pick-up truck that struck Mr. Marchese and Mr. De Vellis at the time of the accident.
(a) Events leading up to the accident
[11] Mr. Marchese has lived in the area around Stefano’s Sports Bar his entire life. He lived with his mother in a house on Ennerdale Rd. about a five-minute walk from Stefano’s.
[12] Mr. Marchese and Mr. Hedman were good friends and had known each other for many years. While Mr. Hedman no longer lived in the area, he had two children that he visited on Friday nights who did. He was a frequent guest in the Marchese home. Mr. Hedman and Mr. Marchese went out for drinks occasionally.
[13] Mr. Marchese estimated that he arrived at Stefano’s Sports Bar somewhere around midnight. He and Mr. Hedman had run into each other earlier in the evening when Mr. Marchese was in the company of his cousin newly-arrived from Italy and the two agreed to meet later in the evening after his cousin had retired. Prior to entering Stefano’s, Mr. Marchese estimated that he had consumed perhaps three drinks over a period of several hours. Mr. Hedman had not been drinking to that point in the evening.
[14] Inside Stefano’s Mr. Marchese estimated that he consumed perhaps four shots of cognac, his drink of choice. Mr. Hedman’s estimate was perhaps one drink higher and he placed their arrival time perhaps a little earlier than midnight given the time when his visit with his children normally ended. Nothing turns on the minor differences in arrival times or estimates of alcohol consumption given by each. Estimates of this sort must be appreciated as such. However, both estimates are generally consistent with the ethanol serum test results obtained when Mr. Marchese’s blood was tested at Sunnybrook Hospital less than an hour after the accident.
[15] At Stefano’s Mr. Hedman ran into Mr. De Vellis whom he knew to some degree. Mr. De Vellis was already at the bar with another gentleman not known to Mr. Hedman. Neither Mr. Marchese nor Mr. Hedman knew Mr. De Vellis particularly well. They did however know his father who ran a café and pub not far away on Dufferin Street. At all events, the fourth gentleman left the group at some point and the three who remained decided to call it a night.
[16] As the trio left Stefano’s, their plan was to walk over to Mr. Marchese’s house a short distance away on the other side of Eglinton. They were planning on having an espresso and hanging out there until Mr. Hedman felt that he was in a fit condition to drive. Mr. Hedman would then drop Mr. De Vellis off at his father’s bar on his way home. They left Stefano’s a few minutes before 2:00 a.m.
[17] Mr. Hedman had driven to Stefano’s and left his car at a parking lot across the street in the parking lot of a (closed) grocery store. He did not feel able to drive home given the amount of alcohol he had consumed. He also did not want to leave Mr. De Vellis to find his own way home as he appeared to him to be somewhat intoxicated. Mr. De Vellis frankly admitted that he was not a particularly experienced drinker.
[18] The ethanol serum test results taken from Mr. De Vellis at the hospital shortly after the accident more than confirms Mr. Hedman’s assessment of Mr. De Vellis’ state. Mr. De Vellis’ test results showed the equivalent of 167 mg per 100 ml of blood alcohol concentration.
[19] According to the evidence of the expert toxicologist Ms. Bugyra, this level of alcohol in Mr. De Vellis’ blood would result from consuming approximately seven standard-sized alcoholic beverages for an average man. Such estimates are always inexact being subject to such variables as time when drinking was initiated and completed, sex and weight. Mr. De Vellis is a little below average height and weight. He was also not a very experienced drinker. While he had virtually no memory of the accident or the hours that preceded it, he readily admitted that this amount of drinking would be quite out of the norm for him. The quantity of alcohol found in his blood was considerably beyond what he was used to handling and, given lack of acquired tolerance, he may have shown the effects of his consumption more than some.
[20] Mr. Marchese and Mr. Hedman on the other hand were both more experienced drinkers. Both were average to slightly above average height and weight, Mr. Hedman being the stockier of the two. The amount consumed – be it four or five drinks – was not out of the ordinary for either and they had a reasonably high tolerance for it. Unlike Mr. Hedman, Mr. Marchese had consumed some alcohol in the hours before coming to Stefano’s but only a small amount and over several hours.
[21] Acquired tolerance for alcohol and impairment are not the same thing. Ms. Bugyra provided expert evidence as to the sort of impacts alcohol impairment produces upon the individual. I shall review this evidence in more detail in considering Mr. Gomes’ state below. Suffice it to say that the depressive effects of alcohol on the brain slows down the time required to process and react to different situations. The greater the complexity of the activity, the greater the impact of alcohol on performing it. In a very general way, driving is a comparatively complex activity while walking is a comparatively simple one.
[22] I find that all three men were certainly impaired to some degree when they left the bar. I do not find that any of them were intoxicated to the point of staggering although Mr. De Vellis may have been somewhat more unsteady on his feet compared to the other two. Two of the men – Mr. Marchese and Mr. Hedman - knew the area well and were used to crossing Eglinton Avenue at that location (between two traffic lights). They were not so impaired as to have been unable to manage the task prudently, including keeping a watch out for approaching vehicles that might pose a risk to them. Both testified that they did so when crossing Eglinton Avenue that night and I have no hesitation in accepting their evidence on that point.
(b) The accident itself
(i) The accident scene
[23] Stefano’s is located a little to the west of the mid-point between Miranda Ave. and Hartley Ave. on the north side of Eglinton Avenue. The nearest main streets are Caledonia Rd. six blocks to the west and Dufferin St., three blocks to the east. In this area, Eglinton Avenue is a four-lane arterial road, with the curb lane being slightly wider to accommodate parking and the left lane being the primary traffic lane. I accept Officer Chin’s estimates that the curb lane was about 4 metres wide and the left-hand traffic lane was about 3.5 metres wide.
[24] Traffic proceeding eastbound (in the southern two lanes of Eglinton) must come up a small hill from Caledonia Rd. that crests just west of the accident site. The hill is visible in Appendix A to Exhibit 1 and was described by Mr. Hedman who is familiar with the area. I accept his evidence that the hill would shield an approaching eastbound vehicle from view to some degree at least. There is no significant visible gradient to the east (the direction from which Mr. Gomes’ vehicle came).
[25] While Eglinton Avenue itself has been subjected to very significant construction for several years with the construction of the LRT project, this particular stretch of the roadway was not then under construction. However, Mr. Marchese testified that construction was on-going at Dufferin Street (three blocks to the east). None of the other witnesses specifically recalled the LRT construction but I accept Mr. Marchese’s evidence as being the most informed from his superior local experience. Further, a portable orange sign of the sort used to alert drivers to approaching hazards can clearly be seen on the south sidewalk (facing eastbound traffic) in photographs taken that night providing some corroboration of this evidence.
[26] Mr. Gomes’ pick-up truck came to a full stop while still in the left-hand westbound lane but with its front end turned slightly inwards towards the curb. It stopped just beyond the door to Stefano’s. Tire marks were visible in the accident scene photographs leading away from the rear tires of the pick-up truck. Officer Chin observed these marks but did not personally prepare a diagram of them relative to other landmarks. He did review and accept as accurate a depiction of those tire marks in a diagram prepared by his colleague. That diagram showed the tire marks extending backwards in the left-hand traffic lane approximately 25 yards to a point beside the parked red Audi. The parked car was a mid-sized red Audi sedan. It was parked quite close to the curb thereby leaving between one-half and one-third of the curb lane open.
[27] Police were at the scene of the accident within one or two minutes. Officer Persichetti saw by-standers already gathering on both sides of the road when he arrived but there is no indication that any material disturbance of the accident scene occurred before police arrived and were able to take steps to secure it.
[28] The defence suggests that there were parked cars in the area on both the north and south side of the street and sought to build on this suggestion a theory that the accident victims in this case emerged from between parked cars and were thus effectively invisible to on-coming traffic. I shall consider that thesis further on in these reasons. I am not however prepared to accept the premise.
[29] The accident scene was secured within a very short period of time – likely only a few minutes. There was a considerable debris field between the stationary pick-up truck of Mr. Gomes stopped just to the west of Stefano’s bar and the parked red Audi a few doors to the east. This was an area that would have been a priority for police to secure. Police did in fact secure it, calling in the forensic team (Officer Chin and his assistant) and applying police tape that is visible in the various accident scene photographs. There are no parked vehicles visible in any of the accident scene photographs between those two vehicles (nor any immediately behind the Audi) and there is no evidence that any parked cars could leave this secured area prior to the police accident scene photographs being taken and the debris field being measured in detail.
[30] The defence points to the evidence of two witnesses as providing some evidence of the existence of parked cars on the north side of the street in the area of Stefano’s bar. The tow truck driver Mr. Martins mentioned in general terms that parked cars are allowed in the area but he had no specific evidence of noticing parked cars in the immediate area from which the accident victims began to cross the street. Officer Persichetti testified in general terms that there were cars parked on both sides of the street in the area but his evidence was quite general in nature and not focused on the immediate area in front of Stefano’s bar from which the three pedestrians began to cross the road. This was simply not an issue that he was focused on at the time and his general and casual observations two years after the fact cannot bear undue weight when contrasted to the accident scene photographs and the direct testimony of the pedestrians themselves. The evidence of the pedestrians was that they did not emerge between parked cars.
[31] I find that there were no cars parked between the red Audi and the area in front of Stefano’s bar nor any parked cars immediately behind the red Audi. The accident scene photographs accurately depict the state of affairs as regards parked cars on the north side of Eglinton Avenue at the time the accident victims began to cross the street in front of or slightly to the east of Stefano’s bar.
(ii) Condition of roadway at the scene
[32] The weather at the time of the accident was described by Officer Persichetti as being clear and dry. Officer Persichetti’s observations were made within minutes of the accident. Mr. Martins said that he was “pretty sure” that the weather was clear and did not remember any rain. All of the witnesses with any memory of the conditions that night testified that the weather was clear and the road dry. I accept that evidence. I find that the road surface was dry at the time of the accident and there were no adverse weather conditions present that played a role in the accident.
[33] There was some contradictory evidence concerning the state of the lighting at the scene of the accident. I have reviewed the evidence carefully and concluded that the lighting was indeed adequate to good in the area immediately surrounding the accident scene.
[34] Mr. Martins, Mr. Marchese, Mr. Hedman and Officer Persichetti all reported lighting conditions to be good or as posing no difficulty. Mr. Hedman reported that there were street lights present and he had no problems in seeing. Mr. Marchese described the area as “well lit” and said that he thought there was also possibly some moonlight visible as well. Officer Persichetti said that in addition to street lights, there was light coming from the open businesses on the street including some bars and from the illuminated three-way intersection with a traffic light at the end of the block (at Ennerdale). Mr. Martins also remarked on the lights coming from bars and stores in the area in addition to street lights and said it was “pretty lit up”.
[35] The photographs in Appendix A to the Agreed Statement of Facts - taken almost two hours later - also suggest a reasonably well-lit accident scene. These photos were agreed to provide an accurate depiction of what was seen at the scene of the collision. Obviously, the lighting depicted in photographs is subject to possible variance depending upon the settings used in displaying or printing digital images and the sensitivity of the camera used. Indeed, the photographs of the area tendered by the defence (taken some time after the accident) were considerably darker than those in the Agreed Statement of Facts. Exhibit 6 – being a police photo not included as part of the Agreed Statement of Facts but identified by Officer Chin during cross-examination – was also somewhat darker in aspect than the photos in Appendix A to Exhibit 1.
[36] Officer Chin noted that the street light on the light standard just west of the parked Audi was out when he arrived on scene more than two hours after the accident. However, he said that the lower sidewalk light attached to the same light standard was operating. That light can be seen to cast considerable light on the sidewalk and curb lane area immediately around Stefano’s bar in the accident scene photographs – precisely the area from which the pedestrians emerged on to the roadway.
[37] No other witness remarked upon an extinguished street light at the scene of the accident and the street light identified by Officer Chin as being off appears to be quite distinctly “on” in the photographs attached to Appendix A to the Agreed Statement of Facts that were taken prior to Officer Chin’s arrival at the scene (I refer in particular photo number 0010).
[38] Officer Chin ventured the subjective and, in my view, unqualified opinion that lighting in the area of the accident was “poor” at the time. He described that opinion as “objective” based upon his notation of two lights being out (the second one being the sidewalk light on the south side of the street). He did not appear to have made a contemporary assessment of the overall state of the lighting on the accident scene when he arrived more than two hours after the accident. I found his evidence generally to be very problematic and approached most of it with caution. He tended to be rambling and unfocussed in most of his replies. He was not a witness in whom I found I could repose confidence. I do so only to a very limited extent here.
[39] I cannot say whether the streetlight on the north side noted as being “out” by Officer Chin had simply been turned off prior to dawn by the time Officer Chin made his observations and notes or whether his note was simply an error. Either is possible and I was not at all satisfied that Officer Chin had any actual recollection. He seemed highly dependent upon his notes and the report of his assistant not to refresh his memory but to supply his evidence. I am not prepared to accept Officer Chin’s evidence regarding the state of the lighting of the accident scene at the time of the collision. I am fully satisfied from the eye witness evidence and the very clear photographic evidence – observations that preceded Officer Chin’s arrival - that the street light on the north side of the street near the parked Audi was in fact illuminated at the time of the accident.
[40] Even the darkest of the photos in evidence – Exhibits 2 and 3 produced by the Defence in cross-examination of the witnesses – show plenty of ambient light permitting sidewalks and their contents to be visible for a considerable distance. In addition to the overhead street lights, there were numerous other sources of light adding illumination to the accident scene. The sidewalk lights were operational and provided a high level of illumination precisely where most critical to this particular accident – the sidewalk and the curb lane. The Ennerdale intersection a short distance to the east had a traffic light and was well illuminated. The north side of the street had local businesses with their own street-level building lights including bars such as Stefano’s that were open and illuminated at 2:00 a.m. (but that were not illuminated at 3:50 a.m. when the police photographs were taken).
[41] I conclude that the lighting in the area – particularly on the northern half of the roadway and the adjacent sidewalk - was more than adequate to permit a good level of visibility to the driver of a pick-up truck approaching the area from the east in the left-hand traffic lane at approximately 1:56 a.m. The area was well-lit and the shadows on the sidewalk and curb lane on the south side of the street were not a factor.
[42] The importance of lighting in the analysis of causation of this accident is of course relative. The driver of a car is responsible for adapting his or her driving to the conditions that exist whether they be poor lighting, rain, snow or other adverse conditions. In this case, however, I find that the lighting conditions were good.
(iii) Mr. Gomes’ vehicle and the CDR evidence
[43] Mr. Gomes’ pick-up truck was equipped with an on-board “Crash Data Retrieval” or “CDR” system that recorded certain data automatically. His truck was impounded after the accident and taken to a police garage where Officer Chin was able to image (i.e. make an exact copy of) the recorded data on June 12, 2017.
[44] Where the airbags are not deployed but there is sudden deceleration event, a “Non-Deployment Event” is recorded by the system. A sudden deceleration that crosses the threshold for being recorded is known as an “Algorithm Enabled” or “AE” event. In this case, the airbags did not deploy and the presence of tire marks leading back from the pick-up truck at rest as well and the evidence of loud screeching heard by Officer Persichetti both support the inference that Mr. Gomes’ vehicle was subject to an incident of hard braking at the time of the accident (immediately before, during or after the collision). I have no difficulty in concluding that the CDR data accurately recorded data pertaining to the speed, status of brakes and throttle of Mr. Gomes’ vehicle for the seconds preceding the hard braking that triggered the “AE”.
[45] Some characteristics or limitations of the CDR data need to be understood.
[46] First, the “AE” recorded is not necessarily the time of actual impact. AE is the point in time where the algorithm has identified a sudden deceleration or crash event. It is not the start of hard braking but the point where the braking has caused a deceleration of sufficient magnitude and swiftness to trigger the algorithm. Whether the impact of the vehicle with one (or two) pedestrians alone was sufficient to cause the vehicle to slow quickly enough to trigger an AE or whether AE was caused by hard braking immediately before, during or after collision with the pedestrians, cannot be stated with certainty. The collision certainly occurred within a very short span of time from the collision and the recorded data can therefore be examined to understand what Mr. Gomes’ vehicle was doing in the seconds before the collision even if the precise moment of the collision cannot necessarily be correlated to the data produced.
[47] What is clear is that the vehicle did brake suddenly enough to put down visible tire marks starting from a point beside the parked red Audi and continuing until just beyond Stefano’s – a distance of approximately 25 metres. Hard braking of the sort that would produce those tire marks is almost certainly what triggered AE in this case. The only other possible trigger would have been the collision itself were that to have occurred east of those tire marks – a conjecture that the other evidence permits me to exclude. I shall consider the evidence regarding the likely point of impact below.
[48] Second, the data is constantly sampled and recorded in precise one second intervals but the report itself is generated asynchronously relative to AE. This means that the one second pre-crash data value is simply the most recently recorded data point prior to AE. AE could have followed this last data reference point by as much as 1 second or by as little as one millisecond. All that can be stated with certainty is that AE followed this last data point by no more than one second.
[49] Third, events recorded at each of the various data points prior to AE (AE minus one second, etc.) are themselves point-in-time records. They show what was occurring at a point in time, not when the thing recorded first occurred. For example, if the throttle was recorded as open 27% of the way at 3 seconds before AE, it may have just reached that position at that precise instant, or it may have first reached it any time during the one second following the next prior reference point (i.e. at -4 seconds). The report shows only the status of the various matters reported upon at that instant. The log is useful to show changes in various measurements over time but the time an event or change first occurred is not recorded.
[50] The log thus shows between four and five seconds of data prior to AE given that AE could have occurred as soon as one millisecond after the -1 second data point. The speeds recorded for Mr. Gomes’ vehicle during this time period is between 72 km/hr and 77 km/hr. The log thus records what was happening to Mr. Gomes’ vehicle while it covered approximately eighty to one hundred metres prior to AE of the distance to the west of AE.
[51] Where were the three pedestrians during this time frame?
[52] Officer Chin recorded the width of the two westbound lanes as 4.5m and 3 m each (curb and left lane respectively). Before making any allowance for the pedestrians slowing down or stopping to allow Mr. Martins’ vehicle to pass and before making any allowance for the added distance to be covered by the diagonal trajectory the group was following across the roadway, an unhurried pedestrian moving at an average walking speed of approximately 5 km/hr (consistent with the pace described by Mr. Marchese) would take five seconds or more to cover that 7 m distance. Given my conclusions regarding the timing of AE relative to the tire marks laid down by Mr. Gomes’ vehicle and the likely point of collision, I have no hesitation in concluding that the three pedestrians were already on the roadway in the process of crossing and thus at least potentially visible to on-coming traffic during the entire four to five second time frame covered by the CDR report.
[53] During this time frame, Mr. Gomes’ vehicle was still accelerating slightly (but with constant throttle) from 45 mph (or 72 km/hr) at five seconds before AE to 48 mph (or 77 km/hr) at three seconds before AE. During this time, the throttle was open (between 33% and 27%), the brakes were not engaged, and the engine speed was increasing slightly.
[54] At two seconds prior to AE, the throttle was recorded at zero and the engine speed began to spool down. Speed remained constant at 77 km/hr and the brake remained off. This data would indicate that Mr. Gomes had removed his foot from the accelerator pedal by no later than this time. Whether he did so in response to having noticed a hazard ahead or simply because he wished to moderate his speed (already approximately 27 km/hr over the posted limit of 50 km/hr) cannot be determined. This evidence is consistent with Mr. Gomes beginning to notice and react to danger and it is consistent with him not having yet perceived any danger. While this evidence is equivocal, for the purposes of my analysis in a criminal law context, Mr. Gomes is certainly entitled to the benefit of the doubt. I assume that he was beginning to react to the situation in front of him by the -2 second mark.
[55] At the one second pre-crash data point (not more than a second prior to AE and possibly less), the data shows that the brake was engaged, the throttle off and vehicle speed had moderated only slightly (to 74 km/hr).
[56] When was the brake first engaged?
[57] While it is possible that the brake was engaged immediately after the minus two second data point was recorded, this is highly unlikely. The brake was already engaged at the minus one second marker but, given the very minor deceleration noted (only 3 km/hr) at that point, either the brake was only being gently applied (not likely in the case of an apprehended imminent collision) or it had only just been applied and the driver was in the early stage of starting to transition to the hard braking that triggered the AE within the one second interval that followed. The latter is the only logical conclusion consistent with the circumstances.
[58] In summary and making all allowances for the limitations of the data, the CDR system data shows that Mr. Gomes was driving at a fairly high rate of speed relative to the posted limit (more than 50% higher) and indeed still accelerating slightly in the few seconds before hard braking occurred. During this time, the three pedestrians were already in the process of crossing Eglinton Avenue. Somewhere between two and three seconds prior to AE, he appears to have begun to react to a situation by removing his foot from the accelerator. He began to brake not more than one second prior to AE and quite possibly later still depending upon how soon after the minus one second data point AE occurred. It is highly likely that AE followed the initiation of hard braking by a matter of one or two tenths of a second given the deceleration data recorded.
[59] The brakes on Mr. Gomes’ vehicle were tested by Toronto police after the accident. While the rear drum brakes were found to be worn to a point where replacement was required, they were still operational at that time.
(iv) “Area of Impact” and progress of the pedestrians across the road
[60] Three witnesses testified regarding the path of the three young men across Eglinton Avenue. Their evidence may be supplemented by the physical evidence examined by Officer Chin after the accident and, to some degree, by the data downloaded from the CDR system.
[61] Mr. Martins was driving his tow truck eastbound on Eglinton Avenue towards Dufferin Street at or a little below the 50 km/hr speed limit when he passed the area. He saw three men walking from the north side of Eglinton Avenue to the south side, one of the three appearing to be slightly ahead of the other two. He first noticed them as he was coming alongside them. At that point, they were already almost at the centre line in the roadway and thus only a few feet away from his truck as he passed. He hadn’t noticed them until he was overtaking them and saw them off to his left side. He had no difficulty in seeing them, but he saw nothing in their presence that was alarming to him. He did not remark upon any cars coming westbound when he saw them. The westbound roadway appeared to him to be “open and free”. Nevertheless, he drove by them cautiously.
[62] According to Mr. Martins, “if a car was driving, they would see them right there in front of them because they were already in the middle of the road”. He did not see the accident itself, but he heard a “big bang” shortly after passing the three men and that is what made him stop and turn his tow truck around to return to the scene. Upon returning, he saw the two victims of the collision in the roadway and Mr. Gomes’ pick-up truck stopped nearby.
[63] All allowances being made for the frailty of memory when it comes to re-constructing events in minute detail, Mr. Martin’s evidence does provide some reliable information. He did have his attention drawn to the three men crossing the road as he came alongside them. There was nothing that he saw – whether it be their direction and speed relative to his own or the state of any on-coming traffic heading towards them – that caused him to become alarmed to the point where a more detailed picture became imprinted upon his memory. I infer that Mr. Gomes’ vehicle at this point was far enough away from this scene as not to appear to pose any danger to anyone.
[64] Mr. Marchese said that the group started crossing Eglinton Avenue in front of Stefano’s bar and proceeded to cross in a bit of a diagonal (to the east) direction. He has crossed the road there many times and lives only a short distance away. He was adamant that he looked left and right before starting to cross the street and saw no on-coming traffic in the westbound lane: “there was no danger imminent”. He could not recall seeing any cars parked in the westbound lane. His two companions were slightly ahead of him, with Mr. Hedman in the lead and Mr. De Vellis between them. They were walking at what he described as a deliberate pace “faster than an old lady, slower than a speed walker”. He said that the group made it safely to the middle of the road and came to a stop at the centre line more or less “shoulder to shoulder” to allow a vehicle to pass in front of them in the eastbound lane. Using an average walking speed of 5 km/hr as a rough rule of thumb, it would have taken the group a little over 5 seconds to reach the median in the roadway from the curb (approximately 7.5 m from curb to median according to Officer Chin) before accounting for any delay occasioned by stopping to allow Mr. Martins’ vehicle to pass them in the eastbound lane. In Mr. Marchese’s memory, the group had not yet begun to resume their passage across the rest of the road when he was “blind-sided”. He did not see the vehicle that hit him coming. The next thing he could remember was being awakened by Mr. Hedman while lying in the road.
[65] Mr. Hedman also recalled that he looked both ways before crossing Eglinton Avenue from the north side heading south after leaving Stefano’s. He too had no specific memory of the parked red Audi on the north side of the street. He was clear that he saw no car was coming from the east when he started across the road. He described the group as being bunched “pretty close together” while crossing and placed himself as being the furthest east of the three while crossing. He saw an eastbound vehicle (Mr. Martins) coming towards them and the group came to a stop at the yellow line to allow that vehicle to pass them before continuing to cross. He believed that he had not noticed the approaching eastbound vehicle earlier because it had not yet crested the hill coming up Eglinton Avenue from Caledonia. In his memory, all three of them had just come to a standstill on the yellow line when the collision happened, before the eastbound car had even passed them. He believed that they were side-by-side while standing there. He did not remember the collision itself and described the night as a “blur”. He heard a loud bang and saw Mr. De Vellis and Mr. Marchese in the air spinning. When he saw Mr. Gomes’ pick-up truck after the accident, the lights to that vehicle were off and he was quite sure that he did not see the headlights of an approaching car from the east at any time.
[66] There are minor differences between the accounts of Mr. Hedman, Mr. Marchese and Mr. Martins. Mr. Hedman and Mr. Marchese both believe that they had come to a full stop before the vehicle passed them; Mr. Martins described them as still walking towards him while he was passing them in his truck. Mr. Hedman and in slightly different terms Mr. Marchese both place the collision as being extremely close in time to their coming to a stop to allow Mr. Martin’s vehicle to pass – Mr. Hedman stating that it occurred more or less as soon as they came to a stop and before Mr. Martins’ vehicle had even passed them. Mr Martins on the other hand was quite clear that he had passed the three pedestrians and proceeded down the road before he heard the load sound of a collision at which point he executed a U-turn and returned.
[67] Some of the difference between the three oral accounts can be attributed to different points of view. Mr. Martins may have seen the three approaching pedestrians just before they came to a full stop. Mr. Marchese and Mr. Hedman were both involved in a very traumatic incident – a collision experienced by the former and witnessed by the latter – that may have affected their perception of time or blurred some details. Of the three eye-witness accounts (Mr. De Vellis having no memory of the events whatsoever), Mr. Martins’ account is the more dispassionate and reliable. He was not directly involved in the incident and has a specific memory of the actions he took in consequence of hearing the sounds of the collision after he passed the pedestrians. I prefer his evidence to theirs.
[68] There are features in common between the three eye-witness accounts that emerge. None of the three remarked upon the headlights of an on-coming car. None had any sense that the three pedestrians were in any peril from westbound traffic at the point where the eastbound tow truck passed them. At that point, the three men were already at or very near the middle of the road and Mr. Martins was confident that they would have been very visible to on-coming traffic.
[69] Mr. Martins in particular was quite clear in stating that he did not see an on-coming vehicle at the point where he noticed the three men crossing the street. There was nothing in what he observed that caused him alarm. The impression he was left with was that the road was open and free. The eyewitness evidence leads to the conclusion that (i) the three pedestrians had cleared the westbound curb lane and were in the left or traffic lane of the westbound lanes when Mr. Martins’ vehicle passed them in the eastbound lane; (ii) Mr. Gomes’ vehicle was sufficiently far away as not to be perceived as alarming by any of them or by Mr. Martins at that point; and (iii) the three, if they had resumed their walking after Mr. Martins passed them, had not yet crossed the centre line at the point when the collision occurred only a few seconds later at most.
[70] Does the physical evidence suggest a sequence of events that contradicts the eye witness evidence?
[71] Officer Chin described the tire marks leading from Mr. Gomes’ vehicle as extending back from the place where the vehicle came to a rest to a point in beside the parked red Audi. The red Audi can be seen in the photographs to have been parked well over to the curb leaving a significant portion of the right-hand lane open beside it. The tire marks appear to follow a straight line and do not cross over into the curb lane at all although something near one-half of that lane was open beside the parked Audi. There was at least the room available to pinch to the right to free up approximately half of the left-hand lane and avoid a collision entirely.
[72] Officer Chin offered two opinions in cross-examination that were derived from his un-filed Collision Reconstruction Report. First, he expressed the view that based upon the location of the various items of debris observed by and measured by his colleague, the likely point of impact was in an area starting beside the red Audi (and after the beginning of the tire marks) for about 6 metres. Second, he expressed the view that Mr. De Vellis had been the only one actually hit by Mr. Gomes’ vehicle, with Mr. Marchese having been hit by Mr. De Vellis’ body immediately afterwards.
[73] Officer Chin’s opinions were brought out in cross-examination upon a report that was not itself in evidence. Much (but not all) of the facts upon which his opinions were based consisted of reports, measurements and diagrams prepared by other officers which, while reviewed by Officer Chin, are not themselves in evidence. Some elements of the opinions were based on Officer Chin’s own observations, but it was simply not possible to tease out of his evidence the degree to which an opinion expressed by him rested upon his own observations and the degree to which it rested upon the observations of others not in evidence. The strongest indicators are that the latter is the case. In those circumstances, I can accord only very limited weight to the opinions expressed by him. I can attribute some greater degree of weight to diagrams and photos identified by Officer Chin from his own observations made on scene and which informed some of the views he expressed in his testimony.
[74] Officer Chin was able to identify from his own observations the location of the most easterly piece of debris from the accident (located near the Audi) and his estimate of the likely point of collision was based upon this finding. I am of the view that the point of collision was at or about the beginning of the tire marks laid down by Mr. Gomes’ truck. The sudden deceleration caused by hard braking is what triggered AE and is also the most likely cause of the tire marks. None of the eye witnesses remembered the braking sound as preceding the collision. Mr. Marchese and Mr. Hedman in particular both referred to the collision as being the first indication either had that something was amiss.
[75] I see no need to speculate as to why Mr. Gomes’ vehicle was not seen by anyone prior to the collision when the evidence is clear that he was not in fact seen either by the two pedestrians with some memory of the incident or by a quite sober, unimpaired and on-duty Mr. Martins. The three accounts are quite consistent with each other on this detail. None of the three eye witnesses saw westbound headlights coming. None had any fear or apprehension arising from the circumstances at the point where Mr. Martins passed the scene. I have no hesitation in finding that Mr. Gomes’ vehicle was a sufficient distance away from the pedestrians at the time Mr. Martins noticed them as to have not been remarked upon by any of them. No other conclusion can reasonably be drawn from the evidence that rises beyond the level of pure speculation.
[76] Regardless of when Mr. Marchese or Mr. Hedman checked westbound traffic, Mr. Martins was in a very good position to see such traffic at the point where the pedestrians were approaching the centre line and he noticed none coming. Had any traffic been close enough to pose a risk to those pedestrians at that point, I am satisfied that the disquiet that such an observation would have engendered would have caused him to record that memory a few short seconds later when he heard a violent collision to his rear.
[77] I find that the three men had already arrived at or were approaching the median of the roadway when they were passed by Mr. Martins’ vehicle in the area generally in front of Stefano’s bar. They may have arrived to a point opposite the parked red Audi or they may have been a few paces to the west of that spot – their precise location on an east-west plane cannot be determined with certainty and does not appear to me to be of great significance. Their location on a north-south plane has been very precisely confirmed by Mr. Martins’ evidence and that placed them in the left-hand, westbound lane of Eglinton at or within a short distance of the centre line. They were already well clear of the parked red Audi at the point where Mr. Martins remarked upon them prior to the collision and prior to his remarking upon the presence of Mr. Gomes’ vehicle.
(c) The aftermath of the accident
[78] I have previously described the violence of the accident as evidenced by the state of Mr. Gomes’ pick-up truck observed at the scene. The two accident victims (Mr. De Vellis and Mr. Marchese) were observed by Mr. Hedman and Mr. Martins to have come to a landing several feet in front of the pick-up truck. Various items of debris were observed by Officer Chin (and are captured in some of the photographs) were scattered over an area from just in front of the parked red Audi and for a distance of several metres beyond the pick-up truck.
[79] Mr. Marchese suffered very serious injuries. He had multiple fractures to his skull and face. There was significant nerve and muscle damage. He suffered a concussion and required a catheter and breathing tube. He underwent two separate surgeries, including one that involved an incision in his abdomen from his chest to his pelvic region. Parts of his pelvis were crushed, and his hip was damaged and will need replacement within ten years. He has been undergoing extensive rehabilitation therapy. He still walks with difficulty and is undergoing further tests on his back. Almost two years later, he remains some distance away from whatever sustainable level of recovery from the accident he can look forward to.
[80] Mr. De Vellis suffered damages of even greater severity. His brain was bleeding in three places. His neck, pelvis, ribs and collarbone were all cracked. His fibula was broken and all of the ligaments in his left leg were torn. He received more than 100 staples and stitches and lost his spleen. He has a large scar from surgery exploring damage to his internal organs and had bleeding from his bladder, kidney and pancreas. He spent several months in physiotherapy and has more that needs doing. He too is far from fully recovered and the recovery he can aspire to is not yet known.
Issues
[81] Given the agreements between the parties, each of the essential elements of the offence with which Mr. Gomes has been charged are admitted (two counts pursuant to s. 255(2) of the Criminal Code) with the exception of the following two questions that remain to be determined by me:
a. Did Mr. Gomes operate the motor vehicle in question while his “ability to operate the vehicle…[was] impaired by alcohol”; and
b. If so, did he cause bodily harm to Mr. De Vellis or Mr. Marchese “as a result”?
[82] The Crown’s evidentiary burden requires that proof of each essential element of the offence be made beyond a reasonable doubt.
Discussion and Analysis
(a) Did Mr. Gomes operate the motor vehicle in question while his “ability to operate the vehicle…[was] impaired by alcohol”?
[83] The Crown bears the onus of establishing that Mr. Gomes’ ability to operate the motor vehicle was impaired by alcohol at the time of the accident but need not establish that the level of impairment was to a marked degree. Proof of any degree of impairment, from slight to great is sufficient: R. v. Stellato, 1994 CanLII 94 (SCC), [1994] S.C. J. 51, aff’g 1993 CanLII 3375 (ON CA). The evidence in this case clearly discharges that burden of proof. Key faculties required by Mr. Gomes to operate his motor vehicle safely were impaired by alcohol at the time he was driving his vehicle on Eglinton Avenue West immediately prior to the accident at or about 1:56 a.m. on June 3, 2017.
[84] Officer Persichetti was the first police officer to arrive at the scene. He arrived within one or two minutes of the accident having been close enough to the scene to have heard the accident. He spent some time with the accused although he was not the arresting officer. Based upon his own observations, he formed the opinion that Mr. Gomes appeared to have been drinking and he appeared “slow” with “glossy red eyes”.
[85] It has been admitted that Mr. Gomes was driving the motor vehicle in question at the time of the accident and it has been admitted that he had a blood alcohol concentration of between 150mg and 185mg per 100ml of blood at that time. The Crown’s expert toxicologist Ms. Bugyra testified that a blood alcohol concentration of 50 mg of alcohol in 100 ml of blood would produce a “noticeable” degree of impairment in accomplishing a relatively complex function such as driving an automobile. The degree of impairment present would continue to increase at higher concentrations and Mr. Gomes’ admitted BAC was considerably beyond the level at which impairment would be noticeable. A seasoned drinker may display a lesser degree of impaired motor control but will nevertheless be subject to the sort of cognitive impairment she described. Among the functions Ms. Bugyra testified would be impaired by alcohol are reaction time, the ability to assess risk, the ability to judge speed and time, vigilance and vision. All of these are among the faculties that a driver needs to rely upon for the safe operation of a motor vehicle. I have no hesitation in accepting her evidence on this subject. Her expertise was both well-established and unchallenged.
[86] I find that the Crown has proved beyond a reasonable doubt that Mr. Gomes’ ability to operate the motor vehicle he was driving was impaired by alcohol at the time of the accident. Mr. Gomes therefore committed an offence under s. 253(1)(a) of the Criminal Code, the first pre-condition that must be satisfied to prove the offence under s. 255(2) of the Criminal Code.
(b) If so, did he cause bodily harm to Mr. De Vellis or Mr. Marchese “as a result”?
[87] It has been agreed that the harm suffered by Mr. De Vellis and Mr. Marchese arising from the accident amounted to bodily harm within the meaning of s. 255(2) of the Criminal Code. The degree of that harm has been described by me in general terms above. There is also overwhelming evidence that the bodily harm inflicted upon these two men arose as a direct consequence of the accident during which the vehicle driven by Mr. Gomes collided with them. These factual findings do not however fully answer the question that I must determine. Was the bodily harm suffered by them caused “as a result” of what I have found to be the impaired operation of the vehicle by Mr. Gomes?
[88] If the accident was not avoidable or if there is reasonable doubt as to whether it was avoidable, then the necessary causal relationship will not have been demonstrated by the Crown to the required standard of proof.
[89] I am satisfied that the accident was in fact avoidable and that the Crown has proved that the accident arose as a result of the impaired operation of the motor vehicle by Mr. Gomes beyond a reasonable doubt. I reach this conclusion after careful consideration of all of the evidence for the following principal reasons:
a. The three pedestrians ought to have been highly visible in the roadway to the driver of a pick-up truck and in conditions of good lighting for several seconds before the collision;
b. At the time the three pedestrians reached the area of the median, Mr. Gomes’ vehicle was at least far enough away from the pedestrians as not to be remarked upon by Mr. Martins at the time when he passed in front of them;
c. It follows from the preceding observations that Mr. Gomes should have had an ample opportunity to react to the presence of the pedestrians in a way that would have avoided the accident entirely;
d. Mr. Gomes was proceeding at a high rate of speed and even accelerating as he approached the scene, depriving himself of some of the reaction time that might otherwise have been available to avoid the collision and doing so at a time when many of the faculties needed to process and deal with emerging risks and hazards were impaired by the presence of significant quantities of alcohol in his system; and
e. There is a total lack of any physical evidence that Mr. Gomes noticed the imminent collision more than an instant before it occurred - there was no braking sufficient to produce more than a minor impact on the vehicle’s speed until less than one second prior to the hard braking and there is no indication that Mr. Gomes reacted by using some of the room that was available in the curb lane to attempt to steer his vehicle away from harm prior to the collision;
[90] In my view, the accident was avoidable by an ordinarily attentive and alert driver. The lighting was more than adequate. Mr. Gomes’ vehicle afforded a fairly high and good view of the roadway ahead.
[91] The defence sought to suggest that the parked red Audi may have shielded the three pedestrians from view until a point where it was impossible to react in time to prevent an accident regardless of degree of impairment. I cannot find this suggestion to be a reasonable possibility considering all of the evidence.
[92] First and most importantly, the three pedestrians were already safely approaching the middle of the road when spotted by Mr. Martins. This was at a time when no westbound vehicle was yet in close enough proximity to be noticed by him or to have caused him any apprehension of an imminent collision. Second, there was plenty of room in the curb lane to at least attempt to avoid a collision with pedestrians at or near the centre line by pinching to the right without striking the parked car (the parked red Audi occupied only about half of the curb lane) and the location of the tire marks shows no effort was made to do so, at least not prior to the time the tire marks were put down as a result of hard braking. Third, there is simply no evidence of a sudden eruption by the three men from beside a parked car that masked their presence from westbound traffic. The three pedestrians were on the roadway for five or more seconds before the collision occurred and had no auditory warning – as for example by the sound of screeching tires – before the collision itself. The thesis is inconsistent with their testimony and with that of Mr. Martins, all of whom offered credible and essentially uncontradicted evidence. Finally, the accident scene photographs demonstrate that a group of three pedestrians setting out to cross the street would have been at least partially visible to a driver in the left-hand lane of approaching traffic at all times notwithstanding the parked car. The area was well lit by a very prominent sidewalk lamp. The cab of Mr. Gomes’ vehicle was higher than the Audi and Mr. Hedman in particular is significantly taller than the Audi as well. An observant approaching driver could have and should have been aware of the presence of the three pedestrians for the entire time that they were on the roadway in those conditions.
[93] The uncontradicted expert opinion evidence of Ms. Bugyra that I accept was to the effect that numerous faculties of Mr. Gomes were significantly impaired by the admitted BAC of 150mg to 185 mg in 100 ml of blood. Driving is a complex activity requiring significant co-ordination. Among the faculties that Ms. Bugyra described as being impaired by alcohol is the ability to multi-task. Handling in-coming distractions without losing necessary focus is a core requirement for the safe operation of a motor vehicle and is impaired by alcohol and a reduced capacity to multi-task. Other mental faculties whose operation is impaired by alcohol include reaction time, judgment of speed and distance, risk assessment, vigilance and vision. Impairment in each these faculties by reason of alcohol played a significant role in causing this accident.
[94] Mr. Gomes was proceeding at an excessive rate of speed – a fact that may have reflected impaired judgment or risk assessment on his part or that may have reflected an impaired ability to judge his own speed. The excessive rate of speed at which he was driving reduced the time he had to react to a situation that presented itself at a time when alcohol was already dampening his reaction time and the faculties needed to process and react to a perceived hazard. Impaired vigilance and vision inhibit the ability of the driver to acquire and process the visual information of a possible danger of collision arising while increasing the time necessary to react to it. For whatever reason, Mr. Gomes failed to notice a hazard that was materializing in his path at a time when he was sufficiently far away to be able to react to it. His ability to multi-task was impaired. All of these impairments acted in concert to delay the time before which Mr. Gomes would become aware of the hazard in the roadway and to delay his reaction to it. Once he became aware of the hazard, he failed to attempt to steer away from it using the significant room available to him in the curb lane despite the presence of the parked red Audi.
[95] Based on all of the evidence before me, the Crown has proved beyond a reasonable doubt that this collision resulted from the impaired operation by Mr. Gomes of the motor vehicle – the accident was avoidable.
Disposition
[96] In summary, for the foregoing reasons I find that the Crown has proved that Mr. Gomes operated a motor vehicle while his ability to operate the vehicle was impaired by alcohol and that while doing so and as a result thereof he caused an accident that resulted in bodily harm to Mr. De Vellis and to Mr. Marchese. The Crown has proved each of the essential elements of the offences charged pursuant to s. 255(2) of the Criminal Code beyond a reasonable doubt.
[97] As a result, I find Mr. Gomes guilty of Count 1 and Count 2 in the indictment as charged. A date shall now be set for sentencing.
___________________________ S.F. Dunphy J.
Released: August 15, 2019