DATE: 2024 08 12

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Crown

A. Bernstein and J. White, for the Crown

• and -

Renzo GOMEZ Defendant

L. Riva, for Mr. Gomez

HEARD: July 17, 18, 24, 25 and 27, 2024.

Correction Notice September 26, 2024: The word death in paragraph [1] c) was replaced with the word death.

REASONS FOR JUDGMENT

Ricchetti J.

The Charges and Background

[1] Mr. Renzo Gomez was charged with:

a) Dangerous driving causing the death of Kaylan Reddy Krishnareddygari,

b) Dangerous driving causing bodily harm to Madeleine Fletcher,

c) Impaired driving causing the death of Kaylan Reddy Krishnareddygari, and

d) Impaired driving causing bodily harm to Madeleine Fletcher.

[2] The trial was scheduled to start on June 10, 2024 but was adjourned to June 17, 2024 after a re-election to be tried by a judge alone.

[3] On June 17, 2024, Mr. Gomez pled guilty to the two dangerous driving charges. Mr. Gomez pled not guilty to both impaired driving charges.

[4] Counsel further agreed that the admissible evidence, called at the pre-trial application (including the evidence of Constable Lobelio (“Cst. Lobelio”)), would also be evidence at the trial.

[5] Counsel were extremely diligent, efficient and cooperative in focusing and limiting the trial evidence to the only real issue in dispute on the impaired charges.

The Facts

[6] On July 2, 2022, at 10:36 p.m., Mr. Gomez was driving a 2020 Chevrolet Corvette (“Corvette”) westbound on Derry Road, in Mississauga.

[7] It was a clear night. The roads were dry. The visibility was good.

[8] The posted speed limit on Derry Road in this area is 60 km/h.

[9] Mr. Gomez had just come out of a side street, Rosehurst Drive, and made a “coasting” right hand turn towards Ninth Line. Ninth Line is only a few hundred meters, possibly 300-500 meters (estimated from a map in evidence), away from Rosehurst Drive. There is a traffic light at the intersection of Derry Road and Ninth Line.

[10] Mr. Gomez’s right hand turn onto Derry Road caused a driver, Ms. Mallison, who was driving straight along Derry Road, to have to brake to avoid a collision with Mr. Gomez. Then, after turning in front of Ms. Mallison, Mr. Gomez moved to the fast lane, accelerated and was “gone”.

[11] Mr. Gomez rapidly accelerated his Corvette along Derry Road. The sound of the acceleration of the Corvette was very loud and was heard by other persons in the area.

[12] During the 8 seconds prior to the accident:

a) The Corvette’s throttle was open 99% for a significant portion of that time period;

b) The lowest speed recorded during that time was 99 km/h;

c) Shortly before the collision and approaching the intersection, Mr. Gomez’s Corvette accelerated to 162 km/h;

d) At approximately 1 second before impact, the Corvette’s throttle was reduced to 31%;

e) In the last second, Mr. Gomez turned the steering wheel 9 degrees, what appears to be an unsuccessful effort to avoid the collision with the Volkswagen Passat (“Passat”) turning left;

f) Mr. Gomez’s Corvette collided with a Passat attempting to turn left onto Ninth Line. The front of the Corvette hit the passenger side of the Passat.

g) At the time of the collision with the Passat in the intersection, Mr. Gomez was, despite the reduction in engine throttle, travelling at 147 km/h;

h) A video of the the intersection was made an exhibit. Mr. Gomez’s Corvette did not enter the intersection at Derry Road and Ninth Line until after the traffic light had already turned red.

[13] Madeleine Fletcher was driving the Passat, travelling eastbound on Derry Road West, and was attempting to turn left at the intersection to go northbound on Ninth Line.

[14] Ms. Fletcher’s passenger was, Kalyan Reddy Krishnareddygari, a 20 year old male, seated in the front passenger seat.

[15] Ms. Fletcher had not been drinking alcohol that evening.

[16] Mr. Gomez’s Corvette hit Ms. Fletcher’s Passat on the passenger side, the side where Mr. Krishnareddygari was seated.

[17] The collision was extremely violent. There was extensive debris. There was very serious damage to both vehicles.

[18] The Corvette, after colliding with the Passat, despite being heavily damaged, by its momentum, continued down the road along Derry Road for a considerable distance.

[19] The Passat, after the collision, was pushed off the Derry Road intersection into a grassy area towards a fenced area.

[20] Emergency responders were called and dispatched to the intersection.

[21] The intersection was closed. By 10:47 p.m., when Peel Police arrived, emergency responders and Halton Police were already on the scene.

[22] One paramedic, Andara Kollovos, asked Mr. Gomez if he had had any alcohol or drugs “before driving” or possibly “tonight”. Mr. Gomez responded he had consumed a few beverages – which I took to mean beers.

[23] It was an agreed fact: “If the accused was travelling at or near the posted speed limit, the collision could have been avoided.”

[24] Ms. Fletcher was trapped in her vehicle for a period of time and sustained serious injuries, including blood/air around her right lung, rib fractures, fracture of the sacrum and part of her pelvis.

[25] Mr. Krishnareddygari, Ms. Fletcher’s passenger, suffered extreme whiplash, causing a hyperextension of the neck where the brain connects to the spinal cord, thereby severing the brain stem from the spinal cord. It was fatal.

[26] Mr. Gomez had a laceration on his hand, a bump on the right side of his head and a sore hand arising from the accident. He was standing outside the Corvette when other persons arrived at the scene of the accident.

[27] Mr. Gomez said, at the scene of the accident, that he was trying to catch a yellow light. However, it is an agreed fact, as confirmed by the video, that he entered the intersection after the light had already turned red.

[28] A part of a “radar detector” was located between the intersection where the accident occurred and where the Corvette came to a stop on the grass – a long distance down the road from the intersection. Given the totality of the evidence, I have no difficulty concluding that the radar detector came from the Corvette. However, there is no evidence whether the radar detector was connected or operational/operating that evening.

Impaired Driving by Alcohol

The Law

[29] There are two primary sections of the Criminal Code which deal with consumption of alcohol (drugs are not an issue in this case) while operating a motor vehicle.

a) The first provides that if a person operates a motor vehicle while the person’s ability is impaired by alcohol “to any degree”, they have committed an offence. In other words, impairment to any degree of one’s ability to operate a motor vehicle establishes the offence. R. v. Stellato (1993) 78 CCC (3d) 380 (CA).

b) The second is that any person, within 2 hours of ceasing to operate a motor vehicle, has a blood alcohol equal to or exceeds 80 mg of alcohol in 100 ml of blood, that person has committed an offence.

[30] The Ontario Highway Traffic Act (“HTA”) provides that, where an officer is entitled to make a demand under s. 320.27 or 320.28 of the Criminal Code, and the approved screening device shows a “warn” or “alert” or that the driver has 50 milligrams or more of alcohol, the police officer can seize the driver’s license. See s. 48 of the HTA.

[31] In R. v. Laprise, 1966, 113 (3d) 87 (Que. C.A.), the Court held that the impairment of the ability to operate a motor vehicle may be proven by any or all of the following:

a) The evidence of a person of the characteristics of an accused’s driving; and

b) Inference from physical signs, including odour, gait, eyes…; and

c) Scientific analysis of bodily fluids where the expert provides evidence of a correlation of the results of the analysis and possible impairment of faculties.

[32] Also see R. v. Nedelcu at para. 50.

[33] In Nedelcu, para. 58, the Court also found that there was a disagreement among experts as to whether a blood alcohol concentration (“BAC”) of 50 mg/100 ml results in “automatic impairment”. There was no Defence expert called in Nedelcu. The Court concluded that, even though Mr. Nedelcu had between 77 and 107 mg/100 ml, the Court could not draw the inference of impairment. See para. 58 Nedelcu.

[34] The Crown relies heavily on Wilson v. British Columbia, 2015 SCC 47 and 2014 BCCA. I am not persuaded this assists the Crown. The Court was determining whether a BAC of 50mg/100ml formed a non-arbitrary and reasonable basis for the British Columbia roadside screening program. Because the Court accepted that a BAC of 50mg/100ml had a reasonable scientific basis for the purpose of the challenge to the roadside screening program, that determination does not mean that all persons with a BAC of 50 mg/100 ml are impaired for the purpose of a Criminal Code offence.

[35] The Crown relies on R. v. Palic, 2015 ONCJ 708, where the Crown’s expert tendered the same opinion as it did in this case – in fact the exact same wording by the Crown’s expert in 2015 and now by this Crown’s expert in 2024 (see para. 15 of Palic and page 2 of Exhibit 8). Mr. Palic was convicted of impaired driving but the evidence was that he was, after the accident, was mumbling, blacking in and out, had a “strong smell of alcohol”, was conscious but was not able to answer questions and Mr. Palic had a “read back” BAC of between 194 and 237 mg/100ml. The evidence of impairment was very different than this case.

The Evidence in this Case

[36] Constable Goode (“Cst. Goode”) of the Halton Regional Police, one of the first officers on the scene, interacted with Mr. Gomez, observed no signs of impairment by Mr. Gomez.

[37] The paramedic at the scene who interacted with Mr. Gomez, observed no signs of impairment.

[38] Cst. Lobelio, the Peel Police Officer at the scene, remained with Mr. Gomez at the scene and subsequently at the hospital for approximately 4-5 hours. Although, Cst. Lobelio, did smell alcohol on Mr. Gomez’s breath at the scene, she observed no signs of impairment.

[39] Mr. Gomez went to the hospital after the accident to be checked out by medical personnel. Some blood was drawn from Mr. Gomez at 2:50 a.m.. Mr. Gomez’s blood had, at that time, an ethanol level of 10.8 mmol/L. Calculations must be done to convert this to mg/100ml of blood – which the two experts who testified in this case agreed to the proper manner of this conversion and agreed to what is commonly referred to as the “read back” blood alcohol level (BAC) result.

[40] I agree with the Crown that hospitals make life and death decisions based on their testing and, therefore, there would likely have to be a high degree of accuracy in their test results. While there may be some uncertainty in the hospital results for the purpose of a criminal prosecution, this case can be and is decided on the basis of the reasons that follows.

[41] The Crown relies on three indicia that Mr. Gomez’s ability to operate a motor vehicle was impaired that night:

a) Mr. Gomez was in a violent, high speed collision;

b) Cst. Lobelio smelled alcohol on Mr. Gomez’s breath; and

c) Mr. Gomez’s blood analysis.

[42] The first ground relied on by the Crown can be disposed of quickly. A violent high speed collision is not, by itself, significant evidence that the driver’s ability to operate a motor vehicle was impaired by alcohol. It could simply be very bad judgment to operate a motor vehicle at high speed in circumstances where a collision occurs. A violent collision at high speed (or any other manner of driving), when taken into account with other evidence of impairment by alcohol, may assist the trier of fact to find, beyond a reasonable doubt, that the driver was impaired by alcohol.

[43] The same can be said for the second ground relied on by the Crown. The law does not prohibit a driver from having consumed alcohol and driving. See R. v. Fraresso [2015] OJ 3360 at para. 44. The law prohibits a driver, whose driving is impaired by alcohol to any degree, to operate a motor vehicle. It is the effect of the alcohol on the person’s ability to drive that is the gravamen of the offence. See R. v. Lehal [2016] O.J No4823 at para. 28.

[44] Any recent alcohol consumption would necessarily (or likely) cause a person’s breath to smell of alcohol. But the smell of alcohol, by itself, does not establish the amount of alcohol in a driver’s blood nor establish that the driver’s ability to operate a motor vehicle was impaired due to the consumption of alcohol. See R. v. Singh [1197] OJ No.1164 at para. 7 and 10.

[45] I now come to the alcohol in Mr. Gomez’ blood in this case.

[46] Both the Crown and the Defence called expert evidence on the issue. The Crown called Galiena Tse, a forensic Scientist, Toxicology at the Center of Forensic Sciences. The Defence called Dr. Joel Mayer, the former head of Toxicology at the Center for Forensic Sciences.

[47] Surprisingly, the experts agree on all but one critical issue.

[48] Both experts agree that, based on the hospital blood analysis, Mr. Gomez’s blood alcohol level at the time of the accident (read back BAC) would have be between approximately 53 – 105 mgs of alcohol in 100 mls of blood.

[49] Both experts agree that physical attributes, such as weight and sex of an individual, have an impact the impairing effects of the amount of alcohol in their blood. The Defendant’s expert puts it as: “inter-individual variability with respect to the impairing effects of alcohol”.

[50] The Crown’s expert also testified that, even if one doesn’t see impairment of the person, that doesn’t necessarily mean the person is not impaired. I agree. But that doesn’t mean that the Court can make assumptions regarding impairment by alcohol if there are no indicia of impairment based on any or all the factors set out in Laprise.

[51] Parliament has enacted the “over 80” offence, which does not require proof of impairment, just proof of a BAC level “over 80.”

[52] So, where do the experts differ?

[53] The Crown’s expert states that, while impairment has been reported as low as 15 mg/100 ml: “Nevertheless, based on a critical review of the relevant scientific literature (laboratory, closed-course driving, crash risk assessment) it is my opinion that impairment with respect to driving becomes significant at a BAC [blood alcohol level] of 50 mg/100 ml and increase from then onward."

[54] In other words, the Crown’s expert’s opinion is that any drivers’ ability to operate a motor vehicle, regardless of their physical or individual attributes, who have a BAC of 50 mg/100ml or more, are significantly impaired.

[55] The Defendant’s expert disagrees with such a broad all encompassing pronouncement at any BAC level for a specific individual.

[56] The Defendant’s expert refers to two reports where authors considered and reviewed prior studies on the correlation of alcohol and impairment (sometimes called a “literature review”):

a) 177 studies were reviewed between 1950-1985 which showed that 21% of persons reported impairment by 40mg/100 ml, 34% by 50mg/100 ml, 66% by 80mg/100ml and nearly all by 100 mg/100 ml.

b) 109 studies were reviewed between 1981 and 1998 which showed that 27% reported impairment by 39 mg/100ml, 47% by 49 mg/100 ml and 92% by 79 mg/100 ml.

[57] The Defendant’s expert also pointed to a further study where “certainty of impairment” occurred when the BAC reached 100 mg/100ml. The implication is that a BAC below 100 mg/100 ml there is lesser or no “certainty”.

[58] The Defendant’s expert opines that, the above studies, establish that impairment varies from individual to individual even within and at different levels of BAC.

[59] While the Crown’s expert refers to “critical review of the relevant scientific literature” as the basis for her opinion, she does not specifically identify or quote from the scientific literature. She simply provides her opinion as set out above.

[60] The Defendant’s expert includes the following quote from a 2013 study:

There is a convergent evidence, therefore a high degree of scientific confidence, in support of the conclusion that a BAC of .050% (50 mg /100ml) impairs faculties required in the operation of a motor vehicle.

[61] This appears to be the basis for the Crown’s expert’s opinion.

[62] I do not know what or the extent of the “convergent evidence” referred to in the study, nor what constitutes a “high degree of scientific confidence”. Therefore, it is impossible to consider what, if any, a BAC of more than 50 mg/100 ml, is of a conclusory evidentiary value of impairment to a criminal prosecution as is suggested by the Crown.

[63] There is a further problem with the Crown’s expert’s opinion. The Defendant’s expert goes on to state that the publications reviewed by him “do not support the proposition that all individuals will be impaired at BAC of 50 mg/100 ml and repeats that there is an inter-individual variability with respect to the impairing effects of alcohol.” (Emphasis added.)

[64] Based on the evidence before me, I cannot and do not accept that the Crown has established beyond a reasonable doubt that all persons’ ability to operate a motor vehicle are automatically impaired for the purpose of a Criminal Code prosecution for impaired driving when they have a BAC of 50mg/100 ml or more and therefore, Mr. Gomez was impaired that evening. This is consistent with the same conclusion arrived at in R. v. Jackson [2014] O.J. 686 at para. 34.

[65] I agree with J. O’Marra in R. v. Higgins, 2017 ONSC 1822, scientific certainty, even if accepted, is not the standard to apply in criminal cases.

[66] I accept the Defendant’s expert that there is a variability from an individual to another individual, based on the amount of alcohol in a driver’s blood, as to whether a driver’s ability to operate a motor vehicle is impaired. Accordingly, while it may be fairly definitive that all persons with a BAC of 100 mg/100 ml or more at the time of driving would be impaired to drive a motor vehicle, when one gets below this amount, well below, such as 53 mg/100 ml, this creates a reasonable doubt as to whether the specific driver’s ability to operate a motor vehicle was impaired, as it does in this case.

[67] One further note, if in fact it was accepted that, for criminal law proof of impairment to operate a motor vehicle beyond a reasonable doubt, occurs at a BAC of 50 mg or more, all that the Crown would have to show is a BAC of 50 mg/100 ml or more to establish impairment. It would effectively eliminate the “over 80” offence as many individuals are charged with impaired and “over 80”. If a BAC of 50 mg/100 ml is to become the point where the court accepts as proof beyond a reasonable doubt, that a specific drivers’ ability to drive a motor vehicle is impaired, it is best left for Parliament to decide whether and how to do so.

[68] There is one other inconsistency. If a driver is stopped and the roadside approved screening device shows a “Pass” (meaning a BAC of as high as 49 mg/100 ml), the police simply return the driver’s license and let the driver continue on his way with his vehicle. On the other hand, if the approved screening device shows a “Warn” (meaning a BAC as low as 50 mg/100 ml), the person’s license could be suspended and his vehicle towed. I accept that the legislatures can set defined levels where a person’s driving privilege is revoked. If there is to be a defined BAC for the purpose of criminal prosecution, it is a matter for the legislatures to deal with.

Conclusion

[69] The question now is whether the combined evidence of the violent collision at high speed, the smell of alcohol and the expert evidence, has proven, beyond a reasonable doubt, that Mr. Gomez’s ability to drive that night was impaired by alcohol.

[70] I am not persuaded that the Crown has met its onus. I have a reasonable doubt for the following reasons.

[71] Mr. Gomez’s collision, while speeding, is not a strong indication that Mr. Gomez’s ability to drive was impaired. Mr. Gomez has a radar detector, which suggests he drives fast and wants to avoid speeding tickets. But that does not advance the evidence that his ability to drive was impaired that night.

[72] Mr. Gomez smelled of alcohol on his breath is also not a strong indicator that Mr. Gomez’s ability to drive was impaired by alcohol. It too does not advance the evidence that his ability to drive was impaired that night.

[73] Having accepted the Defendant’s expert evidence that the amount of alcohol consumption affects individuals ability to operate a motor vehicle in different ways, the Crown’s evidence falls short of the mark in establishing impairment of ability to drive by alcohol beyond a reasonable doubt as the studies reported by the Defendant’s expert shows that a significant portion of the population do not show signs of impairment with a BAC level of 53 mg/100 ml.

[74] With the above determination, the other highly significant factor in finding reasonable doubt is that, none of the three individuals who interacted with Mr. Gomez that night (especially with Cst. Lobelio who was with Mr. Gomez for many hours) saw ANY signs of impairment.

[75] As a result, I cannot and do not conclude, beyond a reasonable doubt, that Mr. Gomez’s ability to drive was impaired that night by alcohol.

[76] Mr. Gomez is acquitted of both impaired charges.

Ricchetti J.

Released: August 12, 2024