Court File and Parties

COURT FILE NO.: CR-22-3469 DATE: 20230914 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Arielle Wall Defendant

COUNSEL: N. Bazylko, for the Crown K. Marley, for the Defendant

HEARD: May 23, 24, 25, and 26, 2023

Justice R. Raikes

Reasons for Judgment

Introduction and Charges

1The defendant, Arielle Wall, stands charged as follows:

Count 1: She operated a conveyance while impaired by alcohol, and while doing so, caused the death of Gabrielle Emery contrary to s. 320.14(3) of the Criminal Code.

Count 2: She operated a conveyance in a manner dangerous to the public and, as a result, caused the death of Gabrielle Emery contrary to s. 320.13(3) of the Criminal Code.

Count 3: She had a blood alcohol concentration equal to or above 80 mg of alcohol in 100 ml of blood within two hours of ceasing to operate a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code.

2The offences are alleged to have occurred in the Municipality of Chatham-Kent on April 12, 2021.

3Crown and defence counsel invite me to dismiss count two – dangerous driving causing death – given the lack of evidence adduced concerning the manner of driving.

4I agree that the Crown has not proven the elements of that offence beyond a reasonable doubt. There is no evidence of the speed of the vehicle operated by the defendant at or near the time of the collision, and no evidence of erratic or aggressive driving leading up to or at the time the collision occurred. Accordingly, the defendant is not guilty of count two on the indictment.

5I turn now to the remaining charges.

Admissions

6At the commencement of trial, the following admissions were made by the defendant:

1. The date and time of the incident.
2. The 911 call was made at 12:20 a.m.
3. Jurisdiction.
4. The defendant’s identity.
5. The defendant was the operator of the vehicle/conveyance when the collision occurred.
6. The authenticity and continuity of photographs taken by police at the scene.
7. The qualifications of the coroner as an expert and the content of his report including his conclusions as to cause of death. His report was filed as a numbered exhibit on consent.
8. The qualifications of each of the following experts: the collision reconstruction officer, Cst. Trahan (although he did not ultimately testify), the Intoxilyzer technician, the expert mechanic, Mr. Dawson, and the scientist from the Centre for Forensic Sciences, Ms. Wallage.
9. The medical records of the victim, Ms. Emery, and the defendant were admitted for their truth without the need to call evidence. Those records were filed as a numbered exhibit on consent.
10. The continuity of the blood sample taken from the defendant at the hospital.
11. The voluntariness of all utterances and statements made by the defendant on April 12, 2021.

The Collision and Investigation

7The charges arise from a single car collision that happened shortly after midnight on April 12, 2021. Ms. Wall was the driver. Ms. Emery was seated in the front passenger seat.

8The vehicle was eastbound on Longwoods Road west of Louisville within the municipality of Chatham-Kent. There was a light rain. The temperature was cool but not below freezing. It was a dark night. There were no streetlights on that section of road. The defendant was driving a black Pontiac G6.

9The road curves at or near the location of the collision. The defendant’s vehicle crossed the westbound lane, the gravel shoulder, and a grassed area adjacent to the shoulder before colliding violently with a tree. It appears from the photographs taken by police of the scene and the damage to the vehicle that the rear of the vehicle struck the tree. Thus, the car must have spun at least 180 degrees before hitting the tree.

10The damage to the vehicle was extensive. The rear passenger tire was pushed up and into the rear passenger area. It came to rest on the rear passenger seat. It is astonishing that anyone survived that collision. The defendant suffered minor injuries. Sadly, Ms. Emery died in the collision.

11Someone called 911 at 12:20 a.m. to report the accident. Police and EMS attended the scene soon after. Officer Weedon and EMS did chest compressions on Ms. Emery who was lying on the front seat. Ms. Emery was pronounced dead at the scene at 12:41a.m.

12The Coroner’s Report by Dr. M. J. Shkrum concluded that Ms. Emery died of multiple blunt trauma injuries due to a collision with a fixed object: viz. the vehicle driven by Ms. Wall striking the tree. At pages 9-10 of his report, Dr. Shkrum opined:

This 19-year old woman was the right front passenger of a vehicle which crossed the road and hit a tree. The rear of the vehicle was impacted driving the right rear tire into the rear occupant compartment. The right passenger seat was pushed forward, and the deceased had to be extricated from the vehicle. She was unconscious at the scene and pronounced dead there.

Postmortem examination revealed multiple blunt trauma injuries. There were significant injuries to the upper cervical spine, brain stem and right chest wall with associated lung trauma and extensive liver lacerations. The latter resulted in massive hemoperitoneum (1.2 L).

13Constable Hendrie arrived at the scene at 12:28 a.m. He testified that the lighting conditions were “pretty dark around the curve”. The only lights were from emergency vehicles.

14The vehicle was later lifted onto a truck and transported to the controlled yard at Chatham Towing Services. It was inspected by Art Dawson, a mechanic with 40 plus years experience. He examined, inter alia, the brakes, suspension, steering, tires, and body to ascertain whether there was a mechanical reason for the crash. He concluded that there were no components that had failed or wore out. Other than damage attributable to the crash, no defects were found. The front right tire was over-inflated which could affect traction somewhat. The essence of his evidence was that there was no mechanical reason for the collision.

15The defendant was examined by paramedics on scene. She was observed by Cst. Hendrie to be hyperventilating. She was crying heavily. He saw her for perhaps 15-20 seconds, long enough to identify her and obtain the make and model of the vehicle. He was roughly seven feet from her as she was being attended at the ambulance. She told Cst. Hendrie that she was coming from Chatham traveling eastbound.

16Cst. McVicar also attended the scene but had no interaction with the defendant there. She followed the ambulance transporting Ms. Wall to the hospital in Chatham and remained with her at the hospital. She did not talk with Ms. Wall until after she had been triaged and was put in a trauma room.

17Cst. McVicar asked her what they were doing before the collision. Ms. Wall indicated that they were at the Parkade at the downtown Sears Mall. They were outside with friends. Because it was during COVID, they could not meet inside.

18Cst. McVicar asked if anyone was drinking. Ms. Wall responded: “This is when I get in trouble. I had a couple, but I was okay.” She told the officer that they were driving home to Dresden. She said she was not speeding and could not recall what happened.

19Cst. McVicar testified that from the time she arrived at the hospital and observed the defendant, she was jovial and joking around with the paramedics. She was laughing and joked about her car being totaled. She did not seem concerned by what had happened. The officer observed that the defendant’s eyes appeared red and glassy. She did not smell of alcohol.

20Cst. McVicar contacted Cst. Hendrie and learned that the passenger died. Given the information provided, that the defendant had been drinking and her behaviour at the hospital, she arrested Ms. Wall for impaired driving causing death at 1:49 a.m.. She read the defendant her rights to counsel and provided the secondary caution. She made demand for a breath sample at 1:51 a.m.

21In cross-examination, Cst. McVicar agreed that:

1. She had no information as to whether paramedics provided any medication to the defendant at the scene or while on route to hospital.
2. She had no information as to what conversations took place between the defendant and paramedics while being transported.
3. People who have suffered a trauma react differently.
4. She made no inquiries as to other potential causes for the redness of her eyes such as allergies.
5. She made no inquiry as to when the defendant last drank alcohol, what she drank, and over what period of time.

22I make no inference from the defendant’s comportment at the hospital. She had just survived a horrific collision. People react to trauma and stress differently. She was likely in shock. I do not take her conduct to be indifference or a cavalier dismissal of the seriousness of what had just occurred and the condition of her friend.

Medical and Breathalyzer Evidence

23According to the Emergency Report dated April 12, 2021 by Dr. Asuquo, the defendant advised during her examination that:

… They both had some alcohol on board she was drinking berry Smirnoff earlier on the evening…

24The hospital records show that at 1:18 a.m., a blood sample was taken from the defendant for purposes of ascertaining her ethanol level. The sample was taken roughly an hour after the collision. The hospital analysis of the blood sample detected a serum alcohol concentration of 26.8 millimoles per litre of serum.

25Ms. Wallage of the Centre of Forensic Science explained that hospitals often express blood alcohol concentrations using units called millimoles per litre. She converted that figure to the units expressed and used in the Criminal Code which is milligrams of alcohol in a hundred millilitres of blood. She not only had to convert the units used but also account for the difference between serum and blood. The figure obtained by the hospital converted to 107 milligrams of alcohol in 100 millilitres of blood.

26A blood sample was provided to CFS where a fresh analysis was done also in serum. The CFS analysis produced a blood alcohol concentration of 103 milligrams of alcohol in 100 millilitres of blood after conversion.

27Thus, both analyses of the blood sample taken at 1:18 a.m. on April 12, 2021 at the hospital produced a blood alcohol concentration which exceeds 80 milligrams of alcohol in 100 millilitres of blood before any adjustment for the passage of time since the collision.

28Cst. Labelle is a certified breath technician trained on the use and operation of the Intoxilyzer 8000. He was dispatched to the scene of the collision immediately after the 911 call was received. He had no interaction with the defendant at the scene. He remained at the scene until 1:50 a.m.. By then, the defendant had been transported to hospital and as indicated earlier, had been triaged, examined by a doctor, and a blood sample taken.

29At roughly 1:50 a.m., he was directed to attend the hospital and obtain a breath sample from the defendant. He went first to the police station to pick up the portable unit. He then went to the hospital. He first met the defendant at 2:40 a.m.. He set up the Intoxilyzer and ran sample tests to ensure it was operating properly.

30At 3:19 a.m. he made a further breath demand of Ms. Wall. He provided a primary caution at 3:20, advised her what she may be charged with and that she was not obliged to say anything. He provided the secondary caution also at 3:20.

31He asked the defendant several questions regarding her personal health which she answered, and he noted.

32In response to his questions, she advised him that they went to the Chatham Mall at about 3:30 p.m. She indicated that she had been drinking while there. She drank vodka berry blast Smirnoff. She confirmed that she had consumed no alcohol subsequent to the collision. She was driving for about 15 minutes when the collision occurred. She was asked to rank how much her ability to drive was impaired based on a scale of 1 to 10 with one being sober and 10 being most intoxicated. She indicated that she would have been “under 5”.

33Cst. Labelle did not detect any odour of alcohol from her. Her eyes were bloodshot. Her speech was okay. She was polite and cooperative. In cross-examination, he agreed that he did not see any symptoms of impairment during his interaction with the defendant for the breath samples.

34He took two breath samples from the defendant, the first at 3:23 a.m. and the second at 3:46 a.m. The machine automatically converted the samples to milligrams of alcohol in 100 millilitres of blood. The first sample produced a reading of 61 mg. of alcohol in 100 millilitres of blood. The second sample rounded down to 58 mgs. Of alcohol in 100 millilitres of blood.

35As already mentioned, police obtained and sent the blood serum from the hospital to the Centre for Forensic Science for analysis. The hospital analysis and the breath sample readings were also provided.

36A report was initially prepared by a different expert within the Centre. The author was promoted, and Ms. Wallage was assigned to review the analyses done and report. She chose to do her own calculations based on the information obtained and to write a fresh report.

37Ms. Wallage is a scientist at the CFS in Toronto. She was qualified as an expert in the absorption, distribution, and elimination of alcohol in the human body, the effects of alcohol on the human body and impairment caused by alcohol to the human body. She was also qualified to provide expert evidence with respect to the Intoxilyzer test record, both the theory and methods of operation of the breath testing equipment, including how readings from the test apply.

38In addition to the figures for blood alcohol concentration already referred to, Ms. Wallage testified as to the defendant’s blood alcohol concentration:

• The difference in the measurements from the blood analyses done at the hospital and Centre (103 versus 107) is not surprising. It is normal for repeat measurements to have variability associated with it.
• The variability between the two measurements is of no concern. It is not too great. It is not unusual for Centre’s result to be lower than the hospital result when the Centre receives such a low volume sample.
• The hospital analysis and the Centre analysis are in good agreement and are accurate.
• Taking the concentration determined by the hospital of 26.8 mmol per litre and adjusting that concentration to determine what the concentration would have been an hour earlier when the accident occurred produces a range of 107 to 127 mg of alcohol in 100 mL of blood.
• To make that adjustment, she used a rate of elimination of alcohol from the blood ranging between 10 and 20 mg of alcohol in 100 mL of blood per hour. In simple terms, that means that for every hour that has elapsed, on the low end, she used an elimination rate of 10 mg and on the high-end and elimination rate of 20 mg because as time increases, more alcohol would have been eliminated from the bloodstream.
• Very few people eliminate at the low end, but it is possible, so it is included in the range.
• Some people do eliminate at the high-end of the range or even higher. If a higher elimination rate is used, the blood alcohol concentration as adjusted for the passage of time would be correspondingly higher.
• She also allowed for a two-hour plateau at the low end of the estimation. When a person consumes alcohol, it goes into their body through their stomach and through their small intestines and then the alcohol is distributed through the body via the bloodstream and the body starts to break it down, metabolize it or eliminated it. There can be a period where the alcohol moving into the body and the alcohol moving out of the body balance each other out. In that case, the blood alcohol concentration is not significantly changing which is what is known as a plateau. That is built into her calculation at the low-end. As a result, she did not add on any elimination for a period of two hours. That is why at the low end of the range, the blood alcohol concentration of 107 mg remained unchanged.
• Not everyone has a plateau, but to incorporate as much of the population as possible in the calculation, she applied a two-hour plateau.
• Further, she assumed that there was no consumption of large quantities of alcohol within approximately 15 minutes before the incident. I observe that there was no evidence that that occurred.
• She also assumed that there was no consumption of alcoholic beverages after the incident and before sample collection. Again, there is no evidence that any such consumption occurred, and, in fact, the defendant stated as much to Constable Labelle.
• Doing the same calculation and applying the same conditions to the sample analysed at CFS, the blood alcohol concentration as at 12:20 AM would be in the range of 103 to 123 milligrams of alcohol in 100 mL of blood.
• She also calculated the blood-alcohol concentration range for the breath sample readings as at 12:20 AM. In doing so, she rounded down the lowest reading of 58 mg to 50 mg. That is done because there is variability in breath testing. For decades, the Centre has rounded down to eliminate some of the variability.
• The calculation of the breath samples as at 12:20 AM produces a range of 65 to 120 milligrams of alcohol in 100 mL of blood.
• The high end of the projection (120 mg) is quite comparable to the hospital and CFS results.
• At the low end, more of the two-hour elimination plateau applies the longer the time between the incident and sample collection. In addition, the lower end of the elimination rate (10 mg) is very conservative. The net result is a low estimation of a person’s blood alcohol concentration.
• Breath, not infrequently, underestimates the true blood alcohol concentration. It is not unusual if there is a breath test and a blood test for the breath test to be lower than blood.
• A breath result is an indirect measurement of blood alcohol concentration.
• A blood sample is a direct measurement of the person’s blood alcohol concentration.
• A blood sample is more representative of their actual blood results. Breath is used as a proxy for blood but there are situations where it can underestimate.
• The measurements from the blood samples are more reflective of the defendant’s actual blood alcohol concentration.
• The numbers from these calculations are independent of height, weight and age of an individual. In other words, the results would be the same regardless of differing heights, weights, and ages of persons tested.

39In cross-examination, Ms. Wallage indicated that the figure she and other scientists at the Centre use to convert from serum to blood falls within a range based on scientific literature. If the higher end of the range is applied to the analysis done by the hospital, it generates a blood concentration between 95 to 115 mg of alcohol in 100 ML of blood.

40She agreed that the Intoxilyzer 8000 is an accurate, reliable instrument when operated by a qualified technician. She acknowledged that our law relies on breath testing as an option instead of a blood sample. She did not see anything in the readings in this case that caused her to question the accuracy or reliability of the instrument used. Based on the breath test, the blood alcohol concentration could have been as low as 65 mg in 100 ML of blood.

41I pause at this point to note that Ms. Wallage was an excellent witness. She was clear and careful in her answers. She displayed no bias, nor any lack of independence in her findings and evidence. She responded directly and candidly to questions posed.

42I accept her evidence that the blood sample taken is preferable to the breath sample. Where the breath sample is an indirect measurement of alcohol concentration in blood, the blood sample is a direct measurement. The blood sample was taken sooner in time to the collision – roughly an hour after it occurred. The breath sample was taken slightly more than three hours after the accident.

43No evidence was called by the defendant to indicate that the blood alcohol concentration was different from that in the hospital and Centre analyses. The accuracy and reliability of the calculations done was not disputed. I note that the upper range of the breath sample is close the blood concentration in the blood samples in any event.

44I am satisfied beyond a reasonable doubt that the defendant’s blood alcohol concentration as at 1:18 a.m. on April 12, 2021 when the blood sample was taken was at between 103 and 107 mg of alcohol in 100 ML of blood.

Analysis

45Thus, the Crown has proven beyond a reasonable doubt that the defendant had a blood alcohol concentration equal to or above 80 mg of alcohol in 100 ml of blood within two hours of ceasing to operate a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code. Accordingly, I find the defendant guilty of count 3.

46Turning to count one – operation of a conveyance while impaired by alcohol causing death,

• it is admitted that she was driving the car when the collision occurred.
• The coroner’s report establishes that the collision was the proximate cause of Ms. Emery’s death.
• The defendant indicated to the doctor at the hospital and to two officers that she had been drinking alcohol before she drove from the Chatham Parkade.
• According to what she told Cst. Labelle, she had only been driving approximately 15 minutes when the collision occurred.
• Her blood alcohol concentration as at the time of the accident is calculated to be between 120-127 mg of alcohol in 100 ML of blood.

47Was she impaired by alcohol in the operation of the conveyance?

48Ms. Wallage testified that in her opinion, a driver would be ‘impaired’ in the operation of a motor vehicle with a blood concentration level of 50 mg of alcohol in 100 ML of blood. The degree of impairment increases as the blood concentration increases. She testified that:

• She defines ‘impairment’ as a decreased ability to perform a certain task.
• There are a number of faculties used in the operation of a motor vehicle that can be impacted by the presence of alcohol, including
  • observing, processing, prioritizing and responding to things happening outside the vehicle;
  • the ability to divide attention;
  • judgment of speed and distance which includes over-estimation of abilities and an under-estimation of risk;
  • vigilance – the ability to focus attention on the task at hand; and
  • vision including attention to things in the periphery and the ability to adapt to changing light.
• The degree of impairment is dependent on the blood alcohol concentration present.
• Impairment becomes significant on the roadway at a concentration of 50 mg of blood in 100 mL of blood; viz. a faculty or more than one faculty would be impaired at that blood alcohol concentration. As the blood alcohol concentration increases, the extent of impairment in any given faculty increases. So too will the number of faculties impacted increase.
• The above referenced faculties are the ones that are most sensitive to alcohol. A person within that blood alcohol concentration range would be impaired in their ability to operate a motor vehicle and at least one of those faculties would be impaired. As the blood alcohol concentration increases above 50 mg, more faculties would be impaired.
• In this case, using 65 mg of alcohol in 100 mL of blood, she would expect that at least one of the faculties necessary for driving would be impacted, and as the blood alcohol concentration gets to the higher end of the range - 127 mg, there would be more than one faculty impaired.

49Ms. Wallage distinguished between ‘impairment’ under the Criminal Code and what lay people know as ‘intoxication’ or ‘signs of intoxication’. She indicated that signs of intoxication are actions that people can observe in an individual that has been drinking, be it slurring speech or unsteadiness on their feet. Once a person gets to the point where they are demonstrating those signs, that means that the alcohol has had a central nervous system depressant effect on the brain which affects coordinated movements that can be observed.

50As it relates to the operation of a motor vehicle, a person does not necessarily have to be experiencing signs of intoxication for their reaction time to be impacted. Likewise, their ability to focus and divide their attention can be impacted and other faculties discussed above can be impacted before the physical manifestation of alcohol in the body.

51A person’s history of alcohol intake or their ability to tolerate alcohol may affect the outward physical signs of intoxication. Someone who is used to drinking alcohol may over time be slower to show that the alcohol is affecting them. Just because the outward signs of intoxication are not apparent, it does not follow that they are not impaired. Their ability to safely operate a vehicle may be compromised and diminished even though based on outward appearance, they show no effects from the consumption of alcohol.

52She testified that the more challenging the task, the more likely somebody is going to have an issue with the operation of a motor vehicle when alcohol is aboard. There may be things on the roadway that are not sudden or unexpected but can be challenging to the driver such as an S-curve or 90° bend. Similarly, light rain making the roadway slick could increase the demands on the driver.

53With respect to the degree of impairment based on a range of 65 to 127 mg of alcohol in 100 mL of blood, she opined that at 60 mg, the impairment could be slight, but it is still an impairment. It may be more than slight depending on the situation occurring at the time and the demands on the driver. As one gets to the higher end of the range (127 mg), it would not be slight but would be moderate. It is possible in some drivers it could be severe. At 127 mg of alcohol in 100 mL of blood, she would expect that more than one faculty is impaired and the degree of impairment certainly would be greater than would be present at a lower blood alcohol concentration.

54Ms. Wallage was vigorously cross-examined on impairment and intoxication. She was consistent that intoxication and impairment are different concepts. She agreed that the visible signs of intoxication are highly dependent on a person’s drinking habits. A person who rarely drinks or infrequently drinks as compared to someone who drinks large doses daily could have the same blood alcohol concentration but would look very different outwardly. She testified that a person who has a high degree of tolerance to alcohol - someone who does not show the outward manifestations of drinking a large quantity of alcohol - will nevertheless have in impairing effects when it is a sudden and unexpected task or something challenging to the driver. As the driving complexity increases, it becomes more challenging to navigate a vehicle with alcohol on board.

55In R. v. Stellato, 1993 ONCA 3375, at para. 14, Labrosse J. wrote:

14. In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge was a reasonable doubt as to the impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Underlining added.]

56I find the expert evidence of Ms. Wallage that at 65-127 mg of alcohol in 100 ML of blood, one or more of the faculties engaged for the operation of a motor vehicle would be impaired to be compelling and I accept it.

57I am satisfied beyond a reasonable doubt that at 120 mg of alcohol, the defendant’s ability to drive, and to drive a dark road in the rain with a curve, was impaired by alcohol. Even at the lower number advocated by defence counsel, I find that Ms. Wall’s ability to operate a conveyance was impaired.

58The defendant did not testify as is her right.

59There is no evidence as to the speed at which the vehicle was being driven before it left the road and collided with the tree. The fact that the vehicle must have spun at least 180 degrees before impact and the extensive damage to the vehicle evident in the photographs at the scene and at the mechanic’s strongly suggest that the vehicle was moving quickly. The vehicle crossed over the westbound lane, a gravel shoulder and through a grassed area before striking the tree with considerable force.

60There is no direct evidence as to what happened to cause the accident. The expert evidence of Mr. Dawson rules out a mechanical cause. This is not a case where a tire blew, brakes failed, or a tie rod broke. Although wet, the road was safely driveable. There was no ice storm that day. There is no evidence from which an alternate, plausible cause for the collision can be inferred.

61The only reasonable and logical conclusion available on the evidence before me is that the collision was the result of driver error. I am satisfied beyond a reasonable doubt that the defendant was impaired by alcohol when she was driving, and that her impairment by alcohol contributed to the collision that night. There is no other plausible explanation available on the evidence for the defendant’s failure to safely travel the road at that location in those conditions.

62Thus, the Crown has proven beyond a reasonable doubt that the defendant operated a conveyance while impaired which caused the death of Gabrielle Emery. I find the defendant guilty of count one.

Conclusion

Conclusion

63For the reasons provided, I find the defendant guilty of counts one and three and not guilty of count two.

Justice R. Raikes

Released: September 14, 2023

COURT FILE NO.: CR-22-3469 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Arielle Wall REASONS FOR JUDGMENT Raikes, J. SCJ

Released: September 14, 2023