Court File No. CR-20-00000042-0000

Date: 2023 06 16

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

v.

AARON AIDEN DOBBS

REASONS FOR JUDGMENT

BY THE HONOURABLE JUSTICE E. CHOZIK

on June 16, 2023, at MILTON, Ontario

APPEARANCES:

N. Chiera Counsel for the Provincial Crown

C. Bottomley/J. Belton Counsel for Aaron Dobbs

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

ENTERED ON PAGE

Reasons for Judgment

1

Legend

[sic] – Indicates preceding word has been

reproduced verbatim and is not a transcription

error.

(ph) – Indicates preceding word has been spelled

Phonetically.

Transcript Ordered: . . . . . . . . . . . . . June 29, 2023

Transcript Completed: . . . . . . . . . . . . June 30, 2023

Transcript Submitted for Judicial Review: . . June 30, 2023

Approved for Release by Chozik, J.: . . . . . July 12, 2023

Ordering Party Notified: . . . . . . . . . . July 12, 2023

FRIDAY, June 16, 2023

R E A S O N S F O R J U D G M E N T

Transcribed verbatim as spoken on the record for

purposes of judicial review and can be checked for accuracy by listening to the Liberty DCR audio recording

1211_6_20230616_093525__10_CHOZIKE.dcr

CHOZIK, J. (Orally):

We are here for my decision in the trial of Mr. Dobbs. I am going to be giving my decision orally. I’m going to reserve the right to edit the decision for citations and clarity if a transcript is ordered.

INTRODUCTION:

Aaron Dobbs is charged with impaired operation of a vehicle causing death, dangerous driving causing death, and refusing to provide a breath sample, contrary to Sections 255(3), 249(4)(a) and 254(5) of the Criminal Code. In the fall of 2021, he was tried before a judge and a jury. That trial ended in a mistrial when the jury could not reach a verdict. Before me, he re-elected to be tried by judge alone.

In the early morning hours of November the 5^th, 2018, Mr. Dobbs was found by police in the backyard of a home in Oakville. The home backed on to Lake Ontario. He was banging on the rear windows and door of the house. The occupant called 9-1-1 about an intruder.

Constables Kenny and Smith of the Halton Regional Police Service responded to the call at 3:08 a.m.

They observed that Mr. Dobbs was soaking wet. Mr. Dobbs was screaming and in obvious distress. He was crying and asking the officers to “help [his] brother”. To control the situation and not fully aware of what had occurred, Constable Kenny arrested Mr. Dobbs for attempting to break and enter. Mr. Dobbs was put in the back of Constable Smith’s cruiser.

The officers then realized that there was a car, upside down, partially submerged in the lake.

Constable Kenny immediately jumped into the water and tried to get into the car to see if anyone was inside. Other officers soon arrived following by a canine unit, a marine unit, fire fighters and paramedics. It was, everyone agreed, a chaotic and dangerous scene. Officers were in the water and on shore. They were frantically trying to determine if anyone was in the car, the water or nearby. It was a very cold November night. There was a strong wind, and the lake was described as “aggressive” with high waves. Mr. Dobbs was hysterical and, at times, incoherent. He was unable to tell the police whether someone else had been in the car or who it was. He kept crying and asking the officers to save his brother.

Police quickly determined that Mr. Dobbs’ brother was safe at home.

At 3:39 a.m., Mr. Dobbs was arrested by Constable Smith for impaired driving. After he was medically cleared by the EMS on the scene, he was transported by Constable Smith to central lockup. There, starting at 4:21 a.m., Mr. Dobbs was paraded in the booking hall before Sergeant Underwood. He was given a “bunny suit”, a paper like Tyvek jumpsuit, and changed out of his wet clothes. Constable McMillan, a breathalyser technician, made a demand for Mr. Dobbs to provide a sample of his breath. Mr. Dobbs did not provide one. He was arrested for refusing to provide a breath sample. Shortly before 8:00 a.m., Mr. Dobbs was interviewed by Detective Constable Duncan.

Mr. Dobbs’ interactions with police at central lockup were recorded on video. The video recording from the booking hall was not available at trial. The video recording from the breathalyzer room was adduced in evidence. Mr. Dobbs’ videotaped statement to Detective Constable Duncan was previously ruled to be voluntary and admitted at this trial.

Tragically, the partially clad body of Shawn Harpur was found several hours later. His body washed up on shore about 190 to 200 meters west of the accident site. He was 27 years old when he died. A forensic pathologist, Doctor Chaisson, testified that the likely cause of Mr. Harpur’s death was a combination of drowning and hypothermia. Mr. Harpur had high levels of alcohol, 190 mg/110 ml of blood, and cocaine, .19 mg/L of blood, in his body at the time of his death. Doctor Chaisson opined that Mr. Harpur’s impairment likely contributed to his inability to escape the rough cold waters that night.

THE ISSUES:

The central issue at this trial is identity. The critical question is whether Mr. Dobbs was driving when his car went into Lake Ontario. If there’s a reasonable doubt about whether he was driving, then he must be acquitted of the charges of impaired driving causing death and dangerous driving causing death. If he was driving, I must decide whether the Crown has proven beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol or drugs.

I must also decide whether the Crown has proven that he was driving in a dangerous manner.

It is not disputed that if he was driving while impaired or in a dangerous manner, then he caused Mr. Harpur’s death.

In respect of the refusal to provide a breath sample, regardless of whether Mr. Dobbs was driving, I must first decide whether the Crown has proven that they were probable grounds to make the breathalyzer demand, that the demand made was unequivocal. If so, I must consider whether Mr. Dobbs had a lawful excuse to refuse to provide a sample of his breath.

BACKGROUND:

To prove identity, the Crown relied on the evidence of Ryan Chwalka, a friend of Mr. Harpur’s. Mr. Chwalka and Mr. Harpur met Mr. Dobbs for the first time outside a local bar, The Clarkson Bar and Grill. They met shortly after 11:45 p.m. on the evening of November the 4^th, 2018. It’s not disputed that the three of them hit it off. They had some drinks together and then when the bar closed, decided to go to Mr. Dobbs’ apartment to continue drinking. They drove around Mississauga in Mr. Dobbs’ car. Mr. Dobbs drove. Mr. Chwalka gave directions from the back seat. Mr. Harpur sat in the passenger seat. They headed out to get more alcohol because Mr. Dobbs did not have any at home.

First, they stopped at a gas station to buy cigarettes for Mr. Chwalka’s boyfriend. Then they stopped at Mr. Chwalka’s house, at a diner called Wallys, two more gas stations where Mr. Chwalka bought “chase”. They sat and had a beer each at Wallys. On their way out, Mr. Harpur bought a bottle of vodka to go. The video recordings from the gas stations and at Wallys were adduced at trial.

The three then continued on their way to Mr. Dobbs’ apartment. They stopped at a commercial plaza. Shortly before 3:00 a.m., Mr. Chwalka was let out of the car on a residential street. Mr. Chwalka testified that he saw Mr. Dobbs drive off with Mr. Harpur still in the passenger seat. Minutes later, the car was in Lake Ontario. According to Mr. Chwalka, Mr. Dobbs had been acting increasingly “psycho” as the evening progressed.

To prove identity and impairment, the Crown also relied on the evidence of police officers who dealt with Mr. Dobbs and to whom Mr. Dobbs allegedly made certain utterances. These police officers testified about their observations of Mr. Dobbs after the accident. Based on these observations, the Crown asks me to find that Mr. Dobbs was impaired by alcohol. There’s no evidence that he had had any drugs.

Impairment by alcohol is relevant not only to my determination of whether Mr. Dobbs is guilty of impaired or dangerous driving causing death, but also to my assessment of his credibility and reliability.

The Crown asks me to infer from Mr. Dobbs’ alleged utterances to the police that he was driving when his car went into the lake, and that he admitted this fact. Based on Mr. Chwalka’s evidence, the utterances, and the other circumstantial evidence, the Crown submits that it has proven that Mr. Dobbs was driving at the time of the accident, beyond a reasonable doubt.

Mr. Dobbs testified. He denied driving at the time of the accident. He denied that he was impaired. He testified that when he let Mr. Chwalka out of the car, he and Mr. Harpur switched seats. Moments later, as Mr. Harpur was driving, the car suddenly ended up in the lake. Mr. Dobbs said that he felt the impact, front to back. Then it was really bright for a second before it was completely dark and he could see nothing. The car started to fill with water. He could hear Mr. Harpur screaming. It was very cold.

Mr. Dobbs testified that he was terrified. He thought he was going to die. He told Mr. Harpur to hold on. They held hands, but after a while they were not longer holding hands and he could not hear Mr. Harpur anymore. Mr. Dobbs thought of his parents and his brother. He panicked. He thought to himself that he had to get out of that car. He managed to climb out onto the rocky shore.

Mr. Dobbs testified that he tried to get help, banging on the doors of the nearest house. He knew only that he needed help because someone was in the water. But at that point, he was no longer sure of who it was. He kept thinking of his brother. He was scared, confused, and feeling very tired.

Mr. Dobbs remembers officers flashing lights in his face, yelling at him, handcuffing him, and putting him in the back of a cruiser. He remembers thinking about his brother and that his brother needed help. He remembers saying, “Please, help my brother”.

PRINCIPLES OF LAW:

With that background, I will review some of the applicable principles of law. This is not a legally complex case. In deciding whether Mr. Dobbs is guilty of the offences charged, I must look to first principles.

First, Mr. Dobbs is presumed to be innocent.

The presumption of innocence means that Mr. Dobbs started this trial presumed to be innocent of the specific offences with which he is charged. This presumption stays with him throughout this trial. This presumption – the presumption of innocence - is only defeated if and when the Crown proves every essential element of each offence beyond a reasonable doubt.

Second, the Crown bears the burden of proof and must prove the essential elements of each offence beyond a reasonable doubt.

The obligation to prove Mr. Dobbs’ guilt remains with the Crown from start to finish. That obligation never shifts. Mr. Dobbs does not have to present evidence. Mr. Dobbs does not have to prove anything. Mr. Dobbs does not have to prove that he is not guilty of the offences charged.

The phrase “beyond a reasonable doubt” is a very important part of our criminal justice system. A reasonable doubt is not an imaginary, far fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudiced against anyone involved in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.

It’s not enough for me to believe that Mr. Dobbs is probably or likely guilty. In those circumstances, I must find him not guilty because the Crown would have failed to prove his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

At the same time, it is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do that. Absolute certainty is a standard of proof that is impossibly high. The reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities. Something less than absolute certainty is required, and something more than probable guilt is required.

Mr. Dobbs can only be found guilty if, after considering all of the evidence, I am sure he committed an offence.

Third, when an accused person testifies and denies guilt, I must first assess whether I believe his evidence, or if it raises a reasonable doubt. The Supreme Court of Canada in a case called R. v. W.(D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, held that if I believe the accused’s evidence, I must acquit him. Even if I did not affirmatively believe his testimony, I must acquit him if his evidence left me with a reasonable doubt. Finally, even if I entirely reject the accused’s testimony, I could only find him guilty if the remainder of the evidence that I did not reject convinced me of his guilt beyond a reasonable doubt. Reasonable doubt can arise either from evidence or from the absence of evidence.

The assessment of credibility is therefore not a contest between witnesses, and I must not approach the evidence with a choice between whether I believe one witness or another.

In addition to credibility, I have to assess the reliability of the evidence. These are two different concepts. Reliability has to do with the accuracy of a witness’ evidence: whether he has a good memory; whether he’s able to recount the details of the event; and whether he is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition, not providing reliable evidence, but the reverse is not the case. Sometimes an honest witness will be trying his best to tell the truth and will fervently believe the truth of what he is saying, but nevertheless be mistaken in his recollection. Such witnesses will appear to be telling the truth and will be convinced that they are right, but they may still be proven wrong by incontrovertible astringent evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt: R. v. Nyznik, 2017 ONSC 4392, at para. 15.

Demeanour, or the manner in which a witness testifies, is not particularly helpful in assessing the reliability and credibility of witnesses. The fact that a witness is emotional, adamant, shy or confident does not, in the normal course, make it more or less likely that events happened as he or she say. Demeanour is generally not a reliable indicator of truth telling. And I do not rely on it here.

The fourth principle is that where the Crown relies on circumstantial evidence to prove one or more elements of the offence, an inference of guilt should be the only reasonable inference that such evidence permits: R. v. Villaroman, 2016 SCC 33 at paras. 30-38

The critical questions on Counts 1 and 2 are whether on all the evidence, including Mr. Dobbs’, the Crown has proven beyond a reasonable doubt that one, he was driving, that two, his ability to drive was impaired by alcohol or drugs, and three, that he drove in a dangerous manner.

ISSUE ONE: WAS MR. DOBBS DRIVING AT THE TIME OF THE ACCIDENT?

I will now turn to the first question: Was Mr. Dobbs driving at the time of the accident?

There is no direct evidence that Mr. Dobbs was driving at the time of the accident. The Crown’s case is circumstantial. To prove that Mr. Dobbs was driving when the car ended up in Lake Ontario the Crown relies on three types of evidence:

First, Mr. Chwalka’s evidence about that night, including his claim that Mr. Dobbs drove off with Mr. Harpur in the passenger seat moments before the accident.

Second, evidence of police officers about Mr. Dobbs’ demeanour and indicia of impairment after the accident to establish that he was impaired.

And third, evidence of police officers about utterances Mr. Dobbs allegedly made after the accident, including during his video recorded interview with Detective Constable Duncan.

I’m going to deal with each of these in turn.

a. Evidence of Mr. Dobbs and Mr. Chwalka:

First, in respect of the evidence of Mr. Dobbs and Mr. Chwalka.

The determination of the critical question of whether Mr. Dobbs was driving turns largely on my assessment of the credibility and reliability of these two witnesses.

As I have set out, the law requires that I first decide whether I believe Mr. Dobbs. If it is at least reasonably possible that Mr. Dobbs’ version of events might be true, then I cannot reject it beyond a reasonable doubt.

Mr. Dobbs is 27 years old. In November 2018, when these events happened, he was only 22. He had just moved to Mississauga. Until then, he had lived with his parents his entire life, in Welland. He testified that growing up in a small city, it was easy to know people. He had just finished college and started working as a paramedic with Peel Region.

On the day in question, he finished an overnight shift at 6:30 a.m. He got home and slept for a few hours from 8:00 or 9:00 a.m. until about noon or 1:00 p.m. Then he went to the gym, he spoke to his parents, he got groceries and made dinner. At around 8:00 p.m., he played online video games with a friend for about three hours. While he played, he drank two “tall boys” of beer. At around 11:00 p.m., he decided to go out. He was finding the adjustment of living in Mississauga difficult: he didn’t know anyone and wanted to make friends. He searched online for things to do in his area and found the Clarkson Bar and Grill.

Mr. Dobbs met Mr. Chwalka and Mr. Harpur for the first time outside the Clarkson Bar and Grill. He had missed last call, which was early, at 11:45 p.m., but Mr. Chwalka invited him to share in the drinks he had ordered. According to Mr. Dobbs, he had one and a half beers, which Mr. Chwalka gave him. This is confirmed by Mr. Chwalka who testified that Mr. Dobbs had one beer.

The three of them then decided to continue to hang out. Mr. Dobbs invited Mr. Chwalka and Mr. Harpur to his apartment. He told them that he did not have anything to drink there, so they decided to buy – to get some more alcohol. Mr. Chwalka said he had some at his house. Mr. Dobbs was not familiar with the area. He asked Mr. Chwalka and Mr. Harpur if they wanted to drive his car. Again, this is confirmed by Mr. Chwalka. They declined.

Mr. Dobbs then drove to Mr. Chwalka’s house. On the way, they stopped at a gas station to buy cigarettes for Mr. Chwalka’s boyfriend. At the apartment, Mr. Chwalka got a partially empty 1.5 litre bottle of wine, which he kept in the back seat of the car. He told the others that he knew of a place where they could get more alcohol after hours. They drove to Wally’s. Mr. Chwalka drank from the bottle of wine as they drove. Mr. Chwalka gave directions to Mr. Dobbs. Again, this evidence of Mr. Dobbs is confirmed by that of Mr. Chwalka.

After they left Wally’s, they stopped twice at gas stations for Mr. Chwalka to get non-alcoholic drinks. According to Mr. Dobbs, as they were driving back to his apartment, Mr. Chwalka’s directions became more unclear, delayed, or “not at all”. Mr. Chwalka was in the back seat drinking. He was, as we know, also texting a friend.

Mr. Dobbs testified that Mr. Chwalka became more flirtatious with him, laughing and more energetic. Mr. Chwalka’s romantic interest in Mr. Dobbs is confirmed by the text messages Mr. Chwalka sent to a friend that night. Mr. Chwalka agreed in his testimony that he believed Mr. Dobbs was interested in having sex with him that night. Mr. Dobbs denied having any romantic interest in Mr. Chwalka.

At one point they stopped at a commercial plaza. According to Mr. Dobbs, on the way there, they spoke about Mr. Dobbs’ job as a paramedic. Mr. Chwalka asked him questions about it. Mr. Chwalka confirmed this. Mr. Dobbs told Mr. Chwalka that his on-call equipment was in the trunk of his car. At the plaza, Mr. Chwalka wanted Mr. Dobbs to show him the equipment. Mr. Chwalka saw the latex gloves that were part of a utility bag and they both put them on. Mr. Chwalka recalled putting on the latex gloves, but he denied that he asked to.

Mr. Dobbs testified that Mr. Chwalka and Mr. Harpur then appeared to do cocaine off a key in the front seat of his car. This upset him: he worried about being seen in public with people doing cocaine because of his job. He told them to stop. Mr. Chwalka got out of the car and was trying to open a locked door at the plaza. Mr. Harpur was climbing a suspended bridge on the side of the building. Mr. Dobbs yelled at them, but they thought he – it was funny.

In his testimony, Mr. Chwalka confirmed many of the events at the commercial plaza, though his memory was vague. Mr. Chwalka confirmed that he and Mr. Harpur had done “key bumps” off cocaine, but thought that it was earlier, before they met Mr. Dobbs. He recalled, when it was put to him, that he was trying to open the door and that Mr. Harpur was climbing the suspended bridge. Then he admitted that they might have done cocaine in the car.

Mr. Dobbs testified that when they left the plaza, he was upset and yelling. He was frustrated with Mr. Chwalka. Mr. Harpur started giving directions where to go. At one point, Mr. Chwalka squeezed Mr. Dobbs’ shoulder and told him to calm down. Mr. Dobbs testified that having Mr. Chwalka touch him like that made him feel uncomfortable. He parked the car and told Mr. Chwalka he had to leave.

According to Mr. Dobbs, Mr. Chwalka said he wanted to stay, but Mr. Dobbs said he had to go. Mr. Harpur said he knew where they were and offered to drive. All three got out of the vehicle. Mr. Dobbs and Mr. Harpur crossed at the front of the vehicle and continued driving. They had called an Uber to pick up Mr. Chwalka.

Mr. Dobbs testified that Mr. Harper drove straight, and then turned. Mr. Dobbs recalled that Mr. Harper was looking for a street, when suddenly there was-impact, it became really bright, then dark, and the car started to fill with water.

I believe Mr. Dobbs’ evidence. He testified in a straightforward manner. His evidence was internally consistent. His evidence was unshaken in cross-examination. His evidence is also supported by other evidence.

For example, Mr. Dobbs’ evidence about his consumption of alcohol is confirmed by Mr. Chwalka. There is no real conflict in the evidence that during the three hours before the accident Mr. Dobbs drank two beers and had one and a half beers, which Mr. Chwalka gave him. This is confirmed by Mr. Chwalka who testified that Mr. Dobbs had one beer.

The three of them then decided to continue to hang out. Mr. Dobbs invited Mr. Chwalka and Mr. Harpur to his apartment. He told them that he did not have anything to drink there, so they decided to buy – to get some more alcohol. Mr. Chwalka said he had some at his house. Mr. Dobbs was not familiar with the area. He asked Mr. Chwalka and Mr. Harpur if they wanted to drive his car. Again, this is confirmed by Mr. Chwalka. They declined.

Mr. Dobbs then drove to Mr. Chwalka’s house. On the way, they stopped at a gas station to buy cigarettes for Mr. Chwalka’s boyfriend. At the apartment, Mr. Chwalka got a partially empty 1.5 litre bottle of wine, which he kept in the back seat of the car. He told the others that he knew of a place where they could get more alcohol after hours. They drove to Wally’s. Mr. Chwalka drank from the bottle of wine as they drove. Mr. Chwalka gave directions to Mr. Dobbs. Again, this evidence of Mr. Dobbs is confirmed by that of Mr. Chwalka.

After they left Wally’s, they stopped twice at gas stations for Mr. Chwalka to get non-alcoholic drinks. According to Mr. Dobbs, as they were driving back to his apartment, Mr. Chwalka’s directions became more unclear, delayed, or “not at all”. Mr. Chwalka was in the back seat drinking. He was, as we know, also texting a friend.

Mr. Dobbs testified that Mr. Chwalka became more flirtatious with him, laughing and more energetic. Mr. Chwalka’s romantic interest in Mr. Dobbs is confirmed by the text messages Mr. Chwalka sent to a friend that night. Mr. Chwalka agreed in his testimony that he believed Mr. Dobbs was interested in having sex with him that night. Mr. Dobbs denied having any romantic interest in Mr. Chwalka.

At one point they stopped at a commercial plaza. According to Mr. Dobbs, on the way there, they spoke about Mr. Dobbs’ job as a paramedic. Mr. Chwalka asked him questions about it. Mr. Chwalka confirmed this. Mr. Dobbs told Mr. Chwalka that his on-call equipment was in the trunk of his car. At the plaza, Mr. Chwalka wanted Mr. Dobbs to show him the equipment. Mr. Chwalka saw the latex gloves that were part of a utility bag and they both put them on. Mr. Chwalka recalled putting on the latex gloves, but he denied that he asked to.

Mr. Dobbs testified that Mr. Chwalka and Mr. Harpur then appeared to do cocaine off a key in the front seat of his car. This upset him: he worried about being seen in public with people doing cocaine because of his job. He told them to stop. Mr. Chwalka got out of the car and was trying to open a locked door at the plaza. Mr. Harpur was climbing a suspended bridge on the side of the building. Mr. Dobbs yelled at them, but they thought he – it was funny.

In his testimony, Mr. Chwalka confirmed many of the events at the commercial plaza, though his memory was vague. Mr. Chwalka confirmed that he and Mr. Harpur had done “key bumps” off cocaine, but thought that it was earlier, before they met Mr. Dobbs. He recalled, when it was put to him, that he was trying to open the door and that Mr. Harpur was climbing the suspended bridge. Then he admitted that they might have done cocaine in the car.

Mr. Dobbs testified that when they left the plaza, he was upset and yelling. He was frustrated with Mr. Chwalka. Mr. Harpur started giving directions where to go. At one point, Mr. Chwalka squeezed Mr. Dobbs’ shoulder and told him to calm down. Mr. Dobbs testified that having Mr. Chwalka touch him like that made him feel uncomfortable. He parked the car and told Mr. Chwalka he had to leave.

According to Mr. Dobbs, Mr. Chwalka said he wanted to stay, but Mr. Dobbs said he had to go. Mr. Harpur said he knew where they were and offered to drive. All three got out of the vehicle. Mr. Dobbs and Mr. Harpur crossed at the front of the vehicle and continued driving. They had called an Uber to pick up Mr. Chwalka.

Mr. Dobbs testified that Mr. Harper drove straight, and then turned. Mr. Dobbs recalled that Mr. Harper was looking for a street, when suddenly there was-impact, it became really bright, then dark, and the car started to fill with water.

I believe Mr. Dobbs’ evidence. He testified in a straightforward manner. His evidence was internally consistent. His evidence was unshaken in cross-examination. His evidence is also supported by other evidence.

For example, Mr. Dobbs’ evidence about his consumption of alcohol is confirmed by Mr. Chwalka. There is no real conflict in the evidence that during the three hours before the accident Mr. Dobbs drank two beers and had one or two sips from the bottle of vodka. Mr. Chwalka testified that Mr. Dobbs showed no signs of intoxication when they met. He initially had no concerns about Mr. Dobbs’ driving. Neither Mr. Dobbs, nor Mr. Chwalka nor Mr. Harpur appear intoxicated on any of the video surveillance from the gas stations or Wally’s. Indeed, on those videos, Mr. Dobbs appears totally sober.

I find that Mr. Dobbs’ memory of the events prior to the accident is reliable. When he was interviewed by Detective Constable Duncan shortly after the accident, he recalled many of the details of the night that were later confirmed. He told Detective Constable Duncan those details before Mr. Harpur’s body was found, before the police spoke to Mr. Chwalka and before anyone knew of his legal jeopardy. When he spoke to Detective Constable Duncan, Mr. Dobbs admitted that he was driving for most of the evening and identified Mr. Chwalka and Mr. Harpur as the other two occupants of the car. I find that Mr. Dobbs was honest in all of his interactions with police, and that he was telling Detective Constable the truth to the best of his recollection.

Some of the important details Mr. Dobbs shared with Detective Constable Duncan that were later confirmed included: how he met Mr. Chwalka and Mr. Harpur, what he drank with them, where he drove with them, including to Wally’s where he had one drink and Mr. Chwalka bought a bottle of hard liquor. He recalled what Mr. Chwalka and Mr. Harpur looked like, and that Mr. Chwalka had an argument with his boyfriend. He recalled that he obtained ID from Mr. Chwalka and Mr. Harpur: a driver’s licence from Mr. Chwalka and a business card from Mr. Harpur with the name of the bar where Mr. Harpur worked: “Turtle Jacks”. Mr. Dobbs recalled all of that. He told Detective Constable Duncan that the IDs were in the driver’s side of the car door, which is where the police found them. He described Mr. Harpur and Mr. Chwalka, including one of them having a tattoo in the shape of a rose.

Based on the evidence of what Mr. Dobbs drank that night and his ability to recall all these details, I conclude that Mr. Dobbs was not intoxicated that night.

Since Mr. Dobbs was not intoxicated, I find that his recollection of events is far more reliable than that Mr. Chwalka, who consumed a lot of alcohol that night. Mr. Chwalka drank about 17 drinks and had one or two “key bumps” of cocaine. He testified that it was normal for him to drink that much at that time in his life. He was drinking daily then. He testified that he had one or two drinks with Mr. Harpur at Mustangs Bar and Grill, where he worked. Then, at the Clarkson Bar & Grill, he had most of a bottle of wine, a couple shots, a vodka Red Bull, and one to three vodka sodas. He was drinking doubles.· Mr. Chwalka fairly acknowledged that when they left Clarkson Bar & Grill, he and Mr. Harpur were intoxicated.

Then he had two glasses of wine at home, while Mr. Dobbs and Mr. Harpur waited in the car for him for 10 to 15 minutes. He then drank from the bottle of wine (a 1.5 litre size, less than half full) that he brought down to the car. At Wally’s, each of them had a beer, and then Mr. Harpur purchased a bottle of vodka to go.

On the drive from his place to Wally’s, Mr. Chwalka assumed, but was not a hundred percent sure, that all three of them consumed some of the wine in the less than half full bottle. But he did not actually have a memory of who was drinking from it. The only thing he was sure of, was that it was not finished.

According to Mr. Chwalka, after they left Wally’s they all drank from the vodka bottle in the car. He said that Mr. Dobbs and Mr. Harpur took a couple swigs or sips from the bottle of vodka. He poured himself some into a Red bull can or can a of sparkling water or both that he bought at the gas station. At the same time, Mr. Chwalka testified that the last time he saw the bottle of vodka, it was pretty much full. He told police the day of the accident that it was a .8, meaning that approximately 150 millilitres of vodka was gone from the bottle. Mr. Chwalka worked as a bartender. He was trained to measure alcohol. This .8 or 150 millilitres was drank between three people.

Based on this evidence, I find that Mr. Dobbs likely only had one small sip of the vodka, as he claimed, and none of the wine.

Mr. Chwalka claimed that Mr. Dobbs’ behavior began to be more bizarre and erratic, almost instantly after he drank the vodka. He claimed that Mr. Dobbs started to talk about murder, a mission, hostages, kidnapping and the number 23. He claimed that Mr. Dobbs drove over a curb. After the stop at the commercial plaza, he claimed that Mr. Dobbs was yelling, slapping the steering wheel or dashboard, and that Mr. Chwalka asked to get out of the car because he was scared.

I do not accept Mr. Chwalka’s evidence. Considering the amount of alcohol Mr. Chwalka admitted drinking, and the drugs he had ingested, I find that his perception and recollection of events was impaired and unreliable. His evidence about the details of that night is increasingly vague. This is more than likely because as the night wore on, his perception of events became increasingly impaired.

I do not accept Mr. Chwalka’s version of events at the commercial plaza, or how he came to be let out of the car. His version of how he ended up on the residential street makes no sense. It also changed over time. At one point he claimed that Mr. Dobbs made out with him before leaving him on the street. At another point, he denied this or couldn’t recall. He could not really explain why Mr. Dobbs got out of the car to let him out. He could not explain why Mr. Dobbs had to open the door for him, as he claimed, if he wanted to get out of the car. He had no trouble getting out of the car before. He could not explain how an Uber showed up. He claimed that he was scared, but his last message to Mr. Harpur at 2:55 a.m., after he had just been let out of the car, said, “I’m confused”. I find that this text message is consistent with Mr. Dobbs’ version of events: it makes sense on that version that Mr. Chwalka would be confused about why he was let out of the car and left on the street, while Mr. Harpur and Mr. Dobbs continued on. This text message makes no sense on Mr. Chwalka’s version of events.

I also find that Mr. Chwalka’s evidence is not supported by some of the objective evidence before me. For example, Mr. Chwalka claimed that Mr. Dobbs started acting strange, became animated and talking about murder and the number 23 at Wally’s. This is not reflected in the 22-minute video from Wally’s that I saw. Nor did Mr. Chwalka, as I’ve said, mention this to the police the day after the event. He only mentioned the number 23 being part of their discussions for the first time at the preliminary inquiry.

I find that Mr. Chwalka’s text messages to his friend Erin were not reliable descriptions of what was actually happening. Those text messages are rife with exaggerations. In those messages, Mr. Chwalka clearly states that he is extremely drunk. He’s bumping into things at home. His perception of events in that state is not reliable.

The multiple inconsistencies and gaps in Mr. Chwalka’s recollection of events are not ones I can dismiss as insignificant due to the passage of time. These are significant contradictions and gaps. I find that Mr. Chwalka is unable to accurately recall the events, probably because he had so much alcohol and cocaine. In the end, I cannot rely on his evidence that he saw Mr. Dobbs and Mr. Harpur drive off with Mr. Dobbs in the driver’s seat. It is entirely possible that because of his impairment he either did not see or did not remember them switching places.

I also find that Mr. Chwalka has an animus towards Mr. Dobbs. He was not an objective witness. He testified that he was convinced that Mr. Dobbs “murdered” his friend. He admitted that he was very angry that “taxpayer’s dollars” were used to allow “that murderer” to be suspended with pay, sit at home, plead his case, demand a jury trial and “prolong everything”. Mr. Chwalka was polite when he testified, and respectful to the Court, but he clearly has an animus towards Mr. Dobbs. I, however, must apply the presumption of innocence.

Mr. Dobbs’ version of the events leading up to the accident makes total sense.

I also find support for Mr. Dobbs’ evidence that he was not intoxicated at the time of the accident in the evidence of some of the police officers. P.C. Kenny and P.C. Smith both testified that when they first interacted with Mr. Dobbs in the backyard of the Oakville home, they did not smell any alcohol. They were both up close to him, assisting him with walking to the cruiser while he cried and screamed. They only detected the smell of alcohol after they found the submerged car.

b. Observations of “Impairment” after the Accident:

Various police officers interacted with Mr. Dobbs after the accident. Many of them testified that they observed what they believed were signs of impairment. I find that they were likely mistaken in this regard. The symptoms and signs they attributed to intoxication by alcohol had other equally plausible explanations.

As I have set out, neither Constable Kenny nor Smith detected an odour of alcohol until Mr. Dobbs was in an enclosed space. According to Constable Smith, he detected the smell of alcohol coming from Mr. Dobbs’ breath when Mr. Dobbs was seated in the back of the police cruiser. According to Constable Kenny, he did not detect any signs of impairment or the smell of alcohol until Mr. Dobbs was in the back of the ambulance. Sergeant Dick also said he detected the smell of alcohol when Mr. Dobbs was in the back of the ambulance. The paramedic, Larry Gushev, also testified he smelled alcohol.

But I find it very odd that Constable Kenny and Smith did not smell alcohol when they were right beside Mr. Dobbs walking him, supporting him. Constable Chinappi escorted Mr. Dobbs from the police cruiser to the ambulance and he also made no note of smelling any alcohol.

There is no explanation why some officers smelled alcohol sometimes, while others did not; why some smelled it from far away, but not up close. A number of officers acknowledged that from the odour of alcohol, one can only infer that alcohol was consumed (as we know it was) but not how many drinks a person had or that the person was intoxicated or impaired. There was some evidence also that the smell of alcohol could be present if a bottle of vodka spilled in the car during the accident.

Therefore, I cannot infer from the smell of alcohol alone that Mr. Dobbs was impaired or intoxicated. The evidence from various officers was that the smell of alcohol alone is indicative of alcohol consumption, but not necessarily intoxication or impairment.

All of the other indicia observed by the police officers has other explanations. For example, officers observed that Mr. Dobbs had red, watery or bloodshot eyes: he had been crying. He had trouble walking and was unsteady on his feet, they said. He had an injury to his ankle which was obvious on the video recording when he walked into the breathalyzer room. He was limping. He had also just escaped a very serious motor vehicle crash. One officer said that Mr. Dobbs’ face was flushed: he is fair-skinned, a “red-head”, who had just been in very cold water and then exposed to very cold air. He was observed having trouble sitting up on the plastic-covered seating of the police cruiser and the EMS truck: he was soaking wet and exhausted. On his own evidence, he could not even stand up when he was banging on the rear door of the house. He slumped down by the door because he was so tired.

All of the officers who interacted with Mr. Dobbs testified that he appeared to be confused. He was described by Sergeant Dick as “up and down”, “very erratic”, “not making sense”. Both Sergeant Dick and Constable Chinappi testified that one minute Mr. Dobbs would mention that his brother was in the car, and then say that no one was in the car. He was crying. He kept repeating himself and giving different information about who was in the car. When Constable Smith asked him about who was in the car, Mr. Dobbs began to cry frantically, stating that his brother was in the car. He began banging his head on the plastic partition in the vehicle two or three times.

I have no hesitation in finding that Mr. Dobbs was very confused. He genuinely believed that his brother was in the car, in danger and needed saving. As I have found, he was not intoxicated. In my view, the most reasonable explanation for his confusion is that he was possibly suffering from hypothermia.

Dr. Chiasson, the forensic pathologist, testified that hypothermia can often present symptoms that can easily be mistaken for intoxication. It affects the brain. The signs of hypothermia can include shivering, confusion, slurred speech, memory loss, loss of fine and gross motor skills. Hypothermia occurs on a spectrum of mild to severe. Someone suffering from hypothermia may become unsure of where they are and according to Doctor Chaisson, start behaving as if he is intoxicated. Dr. Chaisson described someone being in cold water and then coming into cold air as a “classic case” of hypothermia.

Mr. Dobbs was offered no relief for more than an hour: Dr. Chaisson testified that the treatment for hypothermia is to get the person out of the wet clothes and warm him up. No one offered Mr. Dobbs even a blanket, though there were plenty of warming blankets on site. Constable Smith had one for sure in his cruiser and so did the EMS. Instead, Mr. Dobbs remained in his cold wet clothes until after he was booked at central lock up. There, he was given a paper suit to change into. Sergeant Underwood testified that more than an hour after the accident, when Mr. Dobbs arrived in the booking hall, he was still dripping wet and shivering. It was so – of such state, that Sergeant Underwood noted the shivering under “injuries”.

Constable MacMillan, the breathalyzer technician, testified that when Mr. Dobbs was brought into the room, he was limping. I, as I said, observed this to be the case on the videorecording also. According to Constable MacMillan, Mr. Dobbs’ face was flushed, his eyes were watery and bloodshot, and his pupils were dilated. Constable MacMillan said he could smell “obvious” effects of alcohol coming from Mr. Dobbs’ breath while speaking to him. He said the smell was quite strong. In his evidence in-Chief, Constable MacMillan described Mr. Dobbs as “intoxicated” during his time in custody and said that he believed that Mr. Dobbs’ ability to operate a motor vehicle was impaired by alcohol.

In cross-examination, however, Constable MacMillan acknowledged that he formed this belief based on the totality of the information he received from others along with his own observations. Without the other information, based only on his observations of Mr. Dobbs, Constable MacMillan testified that he could conclude that Mr. Dobbs was too impaired to drive a motor vehicle. Constable MacMillan could have only said he had consumed alcohol and would have described him as “intoxicated”.

Having considered all of the evidence, I find that the officers’ observations of Mr. Dobbs are equally consistent with hypothermia or other explanations, as they are with intoxication or impairment. Having regard to the undisputed evidence of what Mr. Dobbs drank, two beers and a sip, maximum two sips of vodka, over the course of almost three hours, Mr. Chwalka’s evidence that Mr. Dobbs showed no signs of intoxication at the start of their time together, the videos from the gas stations and at Wally’s, in which Mr. Dobbs appeared sober, I conclude that Mr. Dobbs was more than likely suffering from hypothermia. His demeanour, confusion immediately after the accident, loss of memory, slurred speech, inability to sit up straight, impairment of gross and fine motor skills and shivering are explained by hypothermia.

Sergeant Dick observed that Mr. Dobbs’ pupils were like [quote] “pin pricks”. He was sure of this. He acknowledged that this could be because of hypothermia but he maintained that it was because of drug use. There’s absolutely no evidence of any drug use by Mr. Dobbs that day or night. That his pupils were constricted as observed by Sergeant Dick is compelling evidence that he was more than likely suffering from hypothermia.

c. Mr. Dobbs Utterances:

I’m going to turn to Mr. Dobbs’ utterances.

To establish that Mr. Dobbs was driving at the time of the accident, the Crown also relies on utterances Mr. Dobbs made to Constable Smith, Sergeant Underwood, and Detective Constable Duncan.

Utterances to P.C. Smith:

According to P.C. Smith, when he first encountered Mr. Dobbs in the backyard, Mr. Dobbs kept saying “My brother is in the water. You have to save him”. Constable Smith, unaware of the car in the water, did not understand what Mr. Dobbs was talking about. Later, when he was in the cruiser, Mr. Dobbs said, “I’ll do anything, just save my brother”.

According to Constable Smith, he then had a conversation with Mr. Dobbs during which Mr. Dobbs said that his brother was in the car when he was driving and that he was driving when the car went into the water.

I do not accept Constable Smith’s evidence that Mr. Dobbs made these exact statements.

First, P.C. Smith obviously assumed that Mr. Dobbs was the driver. His evidence was that the conversation started off with him asking Mr. Dobbs if anyone else was in the car when “he was driving”. Second, Constable Smith did not make verbatim or contemporaneous notes. He made his notes after the fact, at the police detachment, hours later, before the end of his shift. In the intervening hours, the subtleties of anything said could and would have been lost. I cannot be sure that this is exactly what Mr. Dobbs said.

I also find the statement “My brother was in the car when I was driving” to be very strange. Mr. Dobbs had been driving earlier in the evening. We know that. But it does not necessarily mean that he was driving when the car went into the water. We know, for a fact that his brother was not in the car. I am asked to ignore that unreliable portion of his statement, but accept the second half. I can’t do that. It’s a patently unreliable statement. Mr. Dobbs was clearly confused about what happened. He was probably suffering from memory loss. He told Constable Smith over and over, he was not sure who was in the car, that he could not remember, but that his brother was in the car.

Utterances to Sergeant Underwood:

Mr. Dobbs is also alleged to have made certain utterances to Sergeant Underwood.

Sergeant Underwood testified that when Mr. Dobbs was brought into the booking area at central lock up, which was at 4:21 a.m., his clothing was soaking wet. He was dripping. Mr. Dobbs was shivering, as I’ve explained, and complained that his right ankle was hurt. He had minor abrasions. Sergeant Underwood observed Mr. Dobbs walk unsteadily from the cruiser to the booking desk, approximately 30 to 40 feet.

Sergeant Underwood completed a prisoner’s custody form, which is a questionnaire with set questions and a space for a written response. It does not reflect everything said, and is not verbatim. Given that Mr. Dobbs was brought in for impaired driving, Sergeant Underwood said the “intoxication” box was ticked off. Sergeant Underwood testified that Mr. Dobbs was “somewhat confused about what was happening”: he had to ask some questions a number of times and Mr. Dobbs’ demeanour or response to the questions were not “as clear as a fully cognitive person”.

Sergeant Underwood noted that Mr. Dobbs said he was worried about his brother, Dev. He ticked off the box for admissions and wrote down that Mr. Dobbs told him that he had been drinking, that there “was” other “people” in the car: his brother, Dev, and an unknown male named Shawn. He also wrote down that Mr. Dobbs said, “I don’t know when I drink, it’s like psychotic or something”.

In response to questions about who was in the car, Mr. Dobbs said: “like three people. Dev and some other guy I met at the bar, Shawn. For some reason, I think my brother was there.” Asked where he picked up Dev, Mr. Dobbs said, “I don’t know.” He indicated he was drinking “tall boys” at home. Sergeant Underwood noted eight. And then he went to the Clarkson Bar and Grill. Sergeant Underwood could not recall if eight was a reference to time or quantity.

Mr. Dobbs said that he “met a guy named Shawn at the Clarkson Bar and Grill”. And he also said, “When this happened, someone was talking to me. Just wanted to reach out to them”.

When he was told that his brother Dev was safe at home, Mr. Dobbs said, “Then it was Shawn. He did nothing. I was behind the wheel.” He then described Mr. Harpur.

I am not satisfied that the statement “I was behind the wheel” was made or that it was an admission by Mr. Dobbs that he was driving at the time of the accident. When he was talking to Sergeant Underwood, Mr. Dobbs was still clearly confused or suffering from memory loss. He still thought this brother Dev was in the car, but had no memory of Mr. Chwalka.

Mr. Dobbs testified that he did not recall telling Sergeant Underwood that he was driving.

Rather, he recalled “trying to answer a series of questions as best as he could”.

More importantly, I cannot be sure of the context in which the statement “I was behind the wheel” was made. Sergeant Underwood explained that he did not record verbatim what Mr. Dobbs said. He did not record what he, himself asked. He only recorded what he thought was relevant. If the response had no meaning or value in his view, he did not record it. He acknowledged that Mr. Dobbs said other things that were not recorded. No audio or video recording of this important interaction was adduced into evidence. At that time, the police had no audio recording or microphone in the booking hall. Sergeant Underwood had no independent memory of what was said. There’s no evidence of what exact questions were posed to elicit those responses. For example, Sergeant Underwood may have asked. “Who was driving that night?” and Mr. Dobbs might have said, “I was behind the wheel”. That doesn’t mean he was driving at the time of the accident. I am not prepared to conclude that that statement was an admission by Mr. Dobbs that he was driving at the time of the accident.

Mr. Dobbs’ Statement to D.C. Duncan:

I am going to turn to the interview of Mr. Dobbs and the statements that he made to Constable Duncan.

Mr. Dobbs was interviewed by Detective Constable Duncan starting at 7:54 a.m. The interview was recorded and previously ruled to be voluntary.

When talking about the accident, Mr. Dobbs first said:

ANSWER: ...Like, like, I think – I thought someone else was in the car, like, I remember talking to somebody. I honestly don’t remember losing control of the vehicle.

QUESTION: You remember talking to someone while you were in the car?

ANSWER: Yeah, like, I’m sure. Like it wasn’t really a big deal. [As read]

The Crown relies on these statements to prove that Mr. Dobbs was driving at the time of the accident.

Later in the statement, Mr. Dobbs says, after describing how he found himself in the water, he says, “I like looked over and I kind of see the idea, like, this is how I can get out. And I was talking to the other guy. And I was like, just – whatever you do, just hold on to me.”

QUESTION: Yeah?

ANSWER: Yeah. I - I’m a hundred percent certain that I was talking to someone.

QUESTION: Okay. Where was that other person? Did you hear his voice?

ANSWER: Like I thought they were in the driver’s seat. But like every like....[emphasis added]

QUESTION: You thought they were in the driver’s seat?

ANSWER: Oh, sorry. Sorry, no. They were in the like shotgun, like passenger.

QUESTION: Front passenger?

ANSWER: Yeah. And like everyone keeps asking. So, like I’m getting really confused. ‘Cause I was thinking like I could have swore they were like – I could have swore I had someone else with me. But no. Now I’m like.... [As read]

And then he goes on to say, “Well, someone else was in the car. I was yelling and he and I....” “Were there multiple people in the car?”, he’s asked. “Either one or two.”

And then he goes on to say,

My brother, or whomever I was yelling to because apparently, they weren’t in the car. And like I said, I don’t know. But like, when I drink, I get a little like weird. Like, not schizophrenic, but shit doesn’t make sense to me. [As read]

So, these are the statements the Crown relies on to say Mr. Dobbs was driving.

In my view, these are not statements that amount to an admission that he was driving at the time of the accident. They clearly show that he was very confused and, as he testified ,he was increasingly confused because he thought somebody was in the car, but he was being told that there was nobody there.

The defence also argues that these – the statements to Detective Constable Duncan are not reliable because Mr. Dobbs had been punched in the face twice by a police officer on the scene. The video recordings in the breathalyzer room and interview with Detective Constable Duncan confirm that Mr. Dobbs complained of being hit or punched in the face to both officers.

Mr. Dobbs testified that when he was seated in Constable Smith’s police cruiser, another officer opened the door, and struck him twice on the cheek. The officer said something about him lying and wasting time. The officer was yelling. Then he slammed the door on Mr. Dobbs’ foot. Mr. Dobbs testified that this interaction added to his confusion that night. The defence asserts that Sergeant Dick was the one who hit Mr. Dobbs. Sergeant Dick denied it.

I believe Mr. Dobbs that he was hit in the face. Having watched his two video interactions with Constable MacMillan and Constable Duncan, I am satisfied that Mr. Dobbs did not make up being hit at the scene and he was not mistaken about it.

I also find it compelling that both Constable MacMillan and Detective Constable Duncan deflected remarkably quickly. When Mr. Dobbs told them that he had been hit and that the “other cop beat the shit out of me”. When he spoke to D.C. Duncan, Mr. Dobbs said, at page 26, he said, “I don’t know man. People like yelling at me and a fucking guy hit me, and I was like, I don’t know man. Like, I think. I still don’t know why I was hit. So, like I was”. He did not identify who hit him or say that it was a police officer. Detective Constable Duncan did not even ask him who hit him. Neither officer made any inquiries about it, as if they already knew the answer to the question. Both officers brushed it off. Constable MacMillan told Mr. Dobbs, “I wasn’t at the scene. I can’t speak to what took place”. Detective Constable Duncan said, “I’m not gonna get into that right now”.

I find that it is entirely possible that Sergeant Dick hit Mr. Dobbs. Sergeant Dick, an experienced police officer who spent most of his career working in a tough part of Glasgow, was in charge of the scene. The scene, as he had testified, was dangerous and chaotic. A lot was on the line. Officers were risking their lives searching for Mr. Dobbs’ brother because he told them his brother had been in the car. Then, police learned that his brother was safe at home. Mr. Dobbs was incoherent, unable to answer - give them a straight answer about who else, if anyone, was in the car. Sergeant Dick believed Mr. Dobbs to be intoxicated by drugs or alcohol and he believed that Mr. Dobbs was deliberately uncooperative. While fundamentally wrong, it is not outside the realm of possibility that in these circumstances, Sergeant Dick might have lost his temper, and in a moment of frustration hit Mr. Dobbs while he was seated handcuffed inside the cruiser.

I find some support for this proposition in the fact that Sergeant Dick did not initially record in his notes that he had a second interaction with Mr. Dobbs. He only recorded the earlier, first interaction at the EMS truck. He failed to record his second interaction with Mr. Dobbs in his notebook that night, although he was fully aware of the requirement to do so, to document all his interactions with a prisoner in his custody. He later admitted that he had had this second interaction with Mr. Dobbs at the - but he denied that he was one who hit him.

Although I think it was probably Sergeant Dick who hit Mr. Dobbs, I cannot be sure. In his statement to Detective Constable Duncan, Mr. Dobbs said it was the paramedic. There were two paramedics on the scene who interacted with Mr. Dobbs. Only one was called at trial. Neither the Crown nor the defence asked the paramedic who testified whether he had punched Mr. Dobbs in the face.

Although I am certain that someone hit Mr. Dobbs as he described, on this evidence, I can only speculate as to who it was. Ultimately, nothing turns on who it was.

Mr. Dobbs testified that when he spoke to Detective Constable Duncan he was trying to remember and understand what had happened. He was not driving, so he could not remember losing control of the vehicle. He said he was also confused because he believed his brother was in the car, but was told that no one else was around. His confusion makes sense.

I accept Mr. Dobbs’ evidence. Given how frantic and distressed he was at the scene, there’s no question in my mind that he genuinely thought his brother was in the car and in danger. His distress was real. He was not lying or trying to mislead anyone. He called for help. He was trying to cooperate. He experienced a traumatic event and thought he was going to die. I do not believe that he was impaired by alcohol. Although Mr. Dobbs, during some of his interview, ascribed his confusion to his drinking, this is not definitive. It is equally likely that his confusion and memory loss – I should say, it is at least equally likely that his confusion and memory loss could be the result of experiencing a very traumatic event and possible hypothermia.

I also find that during the interview with Detective Constable Duncan, Mr. Dobbs was exhausted. You can see this in the video. Although he had excellent recall of most of the details of that night, his memory of how the accident occurred was vague. He doesn’t know how it happened. His statements were not admissions that he was driving when the car went into the water. Rather, his statements were an attempt to make sense of something that made no sense to him at the time.

I conclude that the utterances Mr. Dobbs made to Detective Constable Duncan do not amount to circumstantial evidence of sufficient reliability to infer that he was driving at the time of the accident. I do not accept them as admissions. These utterances do not undermine the credibility or reliability of Mr. Dobbs’ evidence at the trial that he was not driving at the time of the accident.

Conclusion on Issue One:

To conclude on the question of whether Mr. Dobbs was driving at the time of the accident, I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Dobbs was driving at the time. First, I believe Mr. Dobbs. His evidence is internally consistent and conforms to extrinsic evidence. His evidence about the events of that night leading up to the accident was entirely credible and reliable. He drank little over the course of those three hours. He was not intoxicated. His recollection of the events up to the time of the accident was confirmed almost entirely by extrinsic evidence. He told the police what happened before anyone knew that Mr. Harpur had died, and before police had spoken to Mr. Chwalka. As a result, I accept his evidence. Even if I did not accept it fully, it raises a reasonable doubt in my mind about whether he was driving at the time of the accident, and whether he was impaired. I conclude that – I find that Mr. Dobbs’ was honest and reliable when he gave his statement to Detective Constable Duncan, as he was when he testified. When he was speaking to Detective Constable Duncan, he had no idea of his legal jeopardy at that time. Mr. Harpur’s body had not yet been discovered.

As I said, I find that Mr. Dobbs was not intoxicated that evening. His ability to observe and recall events prior to the accident was not impaired. He drank two beers and had a small sip or two of vodka over the course of three hours. The symptoms of intoxication attributed to him by the officers he interacted with had other plausible explanations, including hypothermia.

Since I believe Mr. Dobbs’ evidence about what happened up to the time of the accident, I have no reason to disbelieve his evidence that he was not driving. His overall account makes sense, and it’s entirely plausible that he and Mr. Harpur switched seats as he described. He had earlier asked Mr. Chwalka and Mr. Harpur to drive. Mr. Chwalka confirmed this. One might ask why would he ask a person as intoxicated as Mr. Chwalka and Mr. Harpur to drive. Despite the alcohol and cocaine they had consumed, neither showed any signs of intoxication on the videos from the gas station and from Wally’s. It’s entirely possible that Mr. Dobbs did not appreciate that Mr. Harpur was as intoxicated as he was.

I find that Mr. Chwalka’s evidence was unreliable due to his intoxication and animus against Mr. Dobbs.

There is no direct evidence as to who was driving at the time of the accident. In this case, I find that Mr. Dobbs’ guilt is not the only reasonable inference available on the evidence.

Having considered all of the evidence, I am left with a reasonable doubt that Mr. Dobbs was driving. It’s entirely possible that he was not.

Although my finding in respect of identity is dispositive of this case on Counts 1 and 2, I’m also going to address, in the alternative, whether Mr. Dobbs’ ability to operate a motor vehicle was impaired by alcohol and whether he was driving – if he – whether the driving was in a dangerous manner.

QUESTION TWO: WAS MR. DOBBS’ ABILITY TO OPERATE A MOTOR VEHICLE IMPAIRED BY ALCOHOL?

On the second question, whether Mr. Dobbs’ ability to operate a motor vehicle was impaired by alcohol, one of the essential elements the Crown must prove to make out the offence of impaired driving causing death is, of course, impairment. The Crown must prove beyond a reasonable doubt that at the relevant time, Mr. Dobbs’ ability to operate the car was impaired by alcohol or drugs.

It is not an offence to operate a motor vehicle after drinking alcohol. It is an offence to operate a motor vehicle if the consumption of alcohol impairs a person’s ability to operate it.

Operating a 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, such as steering, braking, and reacting to changing circumstances and conditions. Mental ability has to do with perception, judgment, and prompt and accurate assessment of existing or changing circumstances and conditions.

The ability of a person to operate a motor vehicle is impaired by alcohol or drugs if, due to the consumption of alcohol or drugs, the person drove with less ability than an ordinary, careful driver in similar circumstances.

Impairment is a matter of degree for which there is no specific test or precise measure. It may be slight. It may be great. Or it may be somewhere in between. It may involve the physical or mental ability to operate a motor vehicle or some or both.

Crown counsel does not have to prove a marked departure from normal driving behavior, or even improper driving. A person’s ability to drive may be impaired by alcohol or drug even though there is no evidence of bad driving. On the other hand, people may drive badly without being impaired.

To decide whether Mr. Dobbs’ ability to operate a motor vehicle was impaired by alcohol or drugs, I must consider all of the evidence, including evidence about how much he had to drink, how quickly he did, the actual manner in which he drove, any physical symptoms he displayed, his general conduct and appearance, and the presence or absence of a smell of alcohol on his breath.

For the reasons I have already set out, I am not satisfied that the observations of various police officers of Mr. Dobbs’ condition after the accident was symptomatic of intoxication. Mr. Dobbs’ symptoms were equally consistent with hypothermia and other explanations. I do not have the benefit of a toxicology report, which may have shed light on the issue of impairment. I have found that Mr. Dobbs drank two beers and had one or two small swigs of vodka during a period of about three or four hours. This consumption alone does not prove impairment.

The only evidence of bad driving in this case was that of Mr. Chwalka. He testified that at one point Mr. Dobbs drove over a curb. This was inconsistent with an earlier statement he gave in which he said that Mr. Dobbs drove in front of or cut off a truck. Indeed, Mr. Chwalka gave three different versions of the alleged bad driving and of his and Mr. Harpur’s reactions to it. I conclude that Mr. Chwalka does not really remember, or that he has exaggerated the bad driving in his mind since these events.

The driving Mr. Chwalka described could be the result of the directions Mr. Dobbs was given. Even on his own evidence, Mr. Chwalka was not giving good directions. He was increasingly intoxicated. I cannot not accept that the bad driving Mr. Chwalka described, if it happened, was as a result of impairment by alcohol and/or drugs.

I decline to draw an inference, an adverse inference from Mr. Dobb’s failure to provide a breath sample. I find that his refusal was as a result of genuine confusion as to what he was supposed to do. He told Constable MacMillan that he wanted to cooperate with the demand, but he was not sure what to do. He testified that he really did not understand what was expected of him.

Based on what Mr. Chwalka said Mr. Dobbs drank, I cannot conclude that his operation of the vehicle was impaired.

In the video recordings before me, as I’ve indicated, I did not observe any signs of impairment or intoxication. Mr. Chwalka testified that when he first met Mr. Dobbs, Mr. Dobbs was not intoxicated.

Having considered all of the evidence, even if I had rejected Mr. Dobb’s evidence, I am left in a reasonable doubt on the question of whether his ability to operate a motor vehicle was impaired by alcohol or drugs.

QUESTION THREE: DID MR. DOBBS OPERATE THE VEHICLE IN A DANGEROUS MANNER?

I will now deal with the question of whether Mr. Dobbs operated the vehicle in a dangerous manner.

I am not satisfied that the driving resulting in the accident amounted to dangerous driving. Dangerous driving is not made out by the consequence alone. Rather, to decide whether Mr. Dobbs operated the vehicle in a manner that was dangerous to the public, I have to consider all of the circumstances in which the driving occurred. Dangerous driving involves more than just carelessness or an error in judgment. Crown counsel must prove beyond a reasonable doubt that the driving was a marked departure from the standard of a reasonable, prudent driver in the same circumstances.

The Supreme Court of Canada, in a case called R. v. Roy, 2012 SCC 26 at para. 26, suggested that it is helpful to approach the issue by asking two questions:

First, in light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?

Second, whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.

Simple carelessness, to which even the most prudent drivers occasionally succumb, is not, generally speaking, criminal: Roy, at para. 37

The general premise is that a reasonable person in the position of an accused would have had - would been aware of the risk posed by the manner of driving and would not have undertaken the activity: Roy, at para. 40

That’s the crime.

In this case, I am not satisfied that the Crown has proven this essential element.

There is no evidence as to the mechanism of the crash. The Crown submits that a marked departure can be inferred irrespective of impairment from the following circumstances:

• Failure to notice the end of the roadway, as marked by the guardrail and the “checkerboard” sign alerting drivers to the end of the road;

• Travelling at a speed sufficient to crash through the guardrail, through the parkette, and over the rocks, ending up in the lake;

• Evidence that the roadways in that area were not troublesome to any of the arriving police or medical personnel;

• Earlier descriptions of Mr. Dobbs driving given by Mr. Chwalka, which I have rejected;

• And lack of any evidence (either roadway evidence as described by Officer Caves or evidence from Mr. Dobbs) to show any attempts to recognize and avoid the danger.

I do not agree that I can draw an inference that the driving was a marked departure based on these factors.

Maple Grove Avenue, where the accident occurred, runs north and south from Lake Ontario, north and south of Lakeshore Boulevard. The portion of Maple Grove Avenue south of Lakeshore Boulevard is very short, approximately 115 meters, to the parkette in front of the water. The metal guard rail runs across the parkette signaling the end of the street.

Constable Caves testified that on the totality of the evidence at the scene, all he could say was that the vehicle was travelling southbound on Maple Grove Avenue, crashed through the guardrail, struck a bench in the park, struck the top of a retaining wall, and then plunged into Lake Ontario. There was not enough physical evidence at the scene for him to do any speed calculations or even place the vehicle in a particular lane on the road or say where specifically in the park it had travelled. There were no tire marks, skid marks or any evidence from which the speed of the vehicle could be determined. The scene was contaminated. The most he could say is that it would have taken between 6 and 8.3 seconds to travel the length of Maple Grove Avenue south of Lakeshore Boulevard at speeds of between 50 to 70 kilometers an hour, assuming a constant speed.

If Constable Caves, a trained collision reconstructionist, could not even opine on the mechanism of the crash, it would be speculative at best for me to do – to guess what driving resulted in that accident.

Regrettably, and it is very regrettable, the mechanism of the crash remains unknown.

Based on this evidence, I cannot be sure that the motor vehicle was driven in a dangerous manner. It is equally possible that the crash was as a result of momentary inattention or a lapse in judgment. In other words, on this evidence, it is possible that the crash was a tragic accident, and not the result of criminal conduct.

ISSUE FOUR: DID MR. DOBBS REFUSE TO PROVIDE A SAMPLE OF HIS BREATH?

Lastly, I will deal with the issue of the refusal to provide a breath sample.

To prove that Mr. Dobbs refused to provide a breath sample, the Crown must prove three things:

First, that the police had reasonable grounds to believe Mr. Dobbs had committed the offence of operating a motor vehicle while impaired by alcohol or drug;

Second, that a proper and unequivocal demand was made for a breath sample; and

Third, that Mr. Dobbs refused unequivocally to provide a breath sample without a lawful excuse. The excuse must be subjectively held by Mr. Dobbs and be objectively reasonable.

There is no question that Mr. Dobbs did not provide a breath sample.

Constable MacMillan’s interactions with Mr. Dobbs are captured on a video recording in the breathalyzer room. Mr. Dobbs is first brought into that room shortly after 4:30 a.m. Constable MacMillan read him his rights to counsel. When it became apparent that Mr. Dobbs had not yet spoken with duty counsel, he was given an opportunity to do so. He then returned to the breathalyzer room at 4:49 a.m. For the next six minutes, the officer attempted to read Mr. Dobbs the primary and secondary caution and the breath demand. Mr. Dobbs told the officer he did not understand. More than once Mr. Dobbs asked to speak to his mother or to a lawyer. His request was denied. He repeatedly said to the officer that he wanted to cooperate, and repeatedly refused or declined to provide a breath sample.

Mr. Dobbs testified that he wanted to cooperate with the police, but that he was confused because he had been hit in the face by the police officer. He explained that he did not understand or know what to do. He seemed, to me, surprised at the end of the video that he would not be blowing into the device.

When Constable MacMillan tried to explain the consequences of refusing to provide a breath sample, Mr. Dobbs stated more than once that he would lose his licence regardless and could go to jail.

Having reviewed the video recording and the transcript of the interaction in the breathalyzer room, I am not satisfied that Constable MacMillan made an unequivocal demand for a breath sample.

An accused person does not get a choice to provide a breath - a sample of his breath or negotiate providing a sample: R. v. Lemay, 2020 ONCJ 56 at para. 57. Section 235 of the Criminal Code refers to making a demand, not an invitation or a request.

An offence is committed when a demand is refused, not when an invitation is declined: R. v. Boucher, [1986] N.B.J. 761 (Q.B.) at para. 14 as cited in Lemay, at para. 58. The demand must be unequivocal. There must be no doubt left in the mind of the accused that he must respond affirmatively to that demand, or he will be charged with fail or refuse to provide a sample. There must, therefore, be a demand, not an invitation: Lemay, supra, at para. 59

In this case, the demand was not unequivocal. It more akin to an invitation open to negotiation. I accept Mr. Dobbs’ evidence that in the circumstances, he did not understand what was expected of him.

Mr. Dobbs testified that when he spoke to Constable MacMillan, he was confused, trying to figure out what was going on. He was still thinking about his brother and trying to understand what was being asked of him. He was trying to understand why he was being told there was nobody else on the scene.

He testified that he was also confused about his relationship with the police. He had always worked side by side with them. But here, he asked for help and was immediately handcuffed, put in the back of a cruiser, yelled at, and hit in the face, from his perspective.

I am not satisfied beyond a reasonable doubt that Mr. Dobbs intended to refuse to provide a breath sample.

CONCLUSION:

The determination of guilt or innocence of Mr. Dobbs is not a simple question of whether he was driving, or Mr. Harpur was driving. That is not the reasoning process our law requires me to follow.

An acquittal in this case because I am not sure that Mr. Dobbs was driving is not the same as a positive finding of fact that Mr. Harpur was driving. Rather, I must ask myself whether - whether on all of the evidence that I accept, I am sure that Mr. Dobbs was driving.

Having done that, I am not sure that Mr. Dobbs was driving at the time of the accident. I am also not sure that his ability to operate a motor vehicle was impaired by alcohol or that he drove in a dangerous manner if he was driving. In other words, the Crown has not proven his guilt on these charges beyond a reasonable doubt.

I am also not sure that Mr. Dobbs refused the breath demand.

Mr. Dobbs, would you please stand?

I find you not guilty of impaired driving causing death, dangerous driving causing death, and refusing to provide a breath sample. Acquittals will be entered on all the counts of the Indictment. You are not guilty. You are free to go.

FORM 3

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Linda A. Lebeau, certify that this document is a true and accurate transcript of the recording of R. v. Aaron Aiden Dobbs in the Superior Court of Justice, held at 491 Steeles Avenue East, Milton, Ontario taken from Recording No. 1211_6_20230616_093525__10_CHOZIKE.dcr which has been certified by Eric Magri in Form 1.

Date Linda A. Lebeau (ACT #8097321162)

Rockland, Ontario (Canada)

Authorized Court Transcriptionist (ACT)

^Secretary

*This certification does not apply to the Reasons for Judgment, which were judicially edited.

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.

The Ministry of the Attorney General has the sole responsibility of ensuring clear, concise audio recordings of court proceedings. Liberty recordings of Zoom/web conferencing/teleconferencing proceedings are a one-channel audio file that produces faulty audio, missing audio, warbly voices, and are a result of the in-court monitor not advising the court of deficiencies. Therefore, a court monitor certifying in Form 1 where there are these occurrences present, is doing so falsely.

An Authorized Court Transcriptionist is in no way responsible, or bears any liability for faulty audio, missing audio or warbly/non-existent audio, and will only acknowledge the transcript has been produced verbatim. The discrepancies/issues are noted within.

Form 3 – Electronic Certificate of Transcript