R. v. Puvtoski, 2014 ONCJ 658

COURT FILE No.: Toronto Region Citation: R. v. Puvtoski , 2014 ONCJ 658 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) S. MacDonald, ) for the Crown ) — AND — ) ) ) milko puvtoski ) R. Tomovski, ) for the accused ) ) ) ) HEARD: April 24, June 5, 26, July 29, September 4, 13, 2013, February 19, 20, 24, April 15, May 26, June 10, October 6, 2014 FELDMAN J.: [ 1 ] Milko Puvtoski entered not guilty pleas to Operation Impaired and Operation Over 80.

It is alleged he struck and seriously injured a civilian, Lisa Grey, whose motorcycle was struck in a collision with his motor vehicle in an intersection at Highway 401 and Kennedy Rd. in Scarborough while his blood alcohol concentration [BAC] was over the legal limit. The defendant has raised a number of Charter issues that were heard as part of a blended proceeding. [ 2 ] The Crown called five police officers, including one in reply, as well as a forensic toxicologist, in support of its case. Ms. Grey, who has little memory of the collision, did not testify.

The Defence relied on the evidence of an Accident Reconstructionist, together with the testimony of the defendant, the latter of which was limited in its application to the Charter motions. [ 3 ] I must weigh the evidence and credibility of the civilian and expert witnesses in making my findings of fact. I am mindful of the onus of proof on the Crown, as well as the onus on the Defence in establishing Charter violations on a balance of probabilities. The Evidence Prosecution Evidence [ 4 ] Jason Hartle is a paramedic with Toronto Emergency Medical Services.

On May 5, 2012, at approximately 3:15 a.m., he had just brought his vehicle to a stop at a red light on an off-ramp from Highway 401 east exiting at Kennedy Rd when he observed a motorcycle already in the intersection being struck by a mini-van travelling northbound that was driven by the accused.

He observed the collision to have occurred in the far northbound curb lane at the entrance to a shopping plaza at William Kitchen Blvd on the east side of Kennedy Rd. [ 5 ] Of significance, he was unsure if Ms.Grey entered the intersection on an amber or red light, but his best recollection is that at the time of the accident the light had been red for milliseconds. He felt the northbound light signal may have just turned green for the defendant. He estimated the mini-van to be driving at about 45 km per hour. At the time of the collision there were no other vehicles on the road. [ 6 ] Mr.

Hartle testified that when the light facing him turned amber there were no vehicles in front of him. He told the court that when he started breaking for the amber light he observed the mini-van to be about 20 feet behind the northbound white line. He said that within one second of stopping he observed the vehicles collide in the middle of the intersection with the motorcycle slowing down from a speed of about 70 kmh. He agrees a civilian bystander told him there was a second motorcyclist.

It is a matter of common sense that his estimates of time and distance in those fast-moving circumstances are approximate. [ 7 ] Mr. Hartle activated his warning systems and proceeded into the intersection to help the victim of the accident. He saw the mini-van stop about 100 feet up the road. He yelled out to the defendant, asking after his condition and directing him to stay put. He then began to treat Ms. Grey and prepared her for transport to Sunnybrook trauma centre. She was taken by ambulance to hospital about 15 minutes later. [ 8 ] Mr. Hartle told the court he observed that after the collision Mr.

Puvtoski got out of his car right away and walked around leading him to believe the defendant was uninjured or had minor injuries at best. He then saw him standing around but not talking with anyone. He pointed him out to more than one officer and then saw the defendant being escorted to the back of a police cruiser. He does not recall speaking to the accused beyond telling him to remain on scene. Mr. Puvtoski admits being the driver of the mini-van. [ 9 ] Mr. Hartle performs important work often in difficult circumstances. I was impressed with his ability to observe.

I view him as an independent witness. [ 10 ] Mr. Hartle’s escort, April Hugh, did not see the collision nor did she take note of the defendant. She did not hear the sound

of the motorcycle. Her focus was on the care and treatment of the motorcyclist. [ 11 ] P.C. Mark Kowalyk is a member of the Ontario Provincial Police [OPP]. On May 5, he had been on the job for 5 months. He was dispatched to assist in the investigation, arriving at 3:40 a.m. An ambulance was then leaving with the injured motorcyclist. The accused, standing alone near other bystanders, was pointed out to him. [ 12 ] P.C. Kowalyk testified that he was instructed by Sgt McCormick of the OPP to interview a potential witness, who at the time was standing in the centre of the intersection.

He is unable to recall the gender of the witness or what he or she may have said, nor could he explain why he failed to make a record of the interaction in his notebook. He is believes that person had something pertinent to say. He said he also neglected to instruct the witness not to talk to other witnesses so as not to contaminate his or her evidence but did tell that person to stay on scene in the event Toronto Police Service [TPS] wished to interview him or her further. He recalls handing the finished product over to Sgt. Harold Chow of that service. He knows Sgt.

Chow, having dealt with him subsequently on two occasions at that same intersection. [ 13 ] Sgt. Chow has been a police officer for 25 years. Of significance, he testified that while he had a list of all OPP officers present at the scene he did not receive statements from any officer of that force during the course of this investigation. [ 14 ] P.C. Kowalyk’s laxity in performing one straightforward task calls into question the reliability of his evidence. Material facts in issue ought not to be left to the whim of distant memory. [ 15 ] P.C. Lemonia Paroussoudi, of TPS was the arresting officer.

She arrived on scene at 4:11 a.m., having been advised she would be the lead investigator of a life-threatening motor vehicle accident. She spoke to Mr. Hartle for about 10 minutes. She learned that the victim had been transported to hospital. Mr. Hartle pointed out the driver of the mini-van to her. She went over to the defendant about 10 minutes after her arrival and confirmed he was the driver. She asked after his condition intending to gather information from him about the details of the accident as required by s. 199 of the Highway Traffic Act in order to prepare a report. [ 16 ] P.C.

Paroussoudi said she told the accused she wished to speak with him and asked that he come with her to the police cruiser. She noted a strong accent and asked about his language skills. She said he responded that he “understands ok, not speak so good”. This response is confirmed by a review of the in-car camera. The officer testified that in focussing on her investigation responsibilities she did not consider the defendant to be then detained. [ 17 ] She found Mr. Puvtoski to be polite and cooperative. Upon request he provided his identifying documents.

She said she intended to fill out a collision report that would include a sketch of the accident scene as well as prepare witness statements, including that of the accused. She told the court she had not yet advised him that he was not required to answer any of her questions when she noted an indicium of impairment. [ 18 ] In this regard, the officer testified that as they were walking towards her vehicle she twice smelled a slight odour of alcohol that after arriving at the cruiser she noted came from his breath.

She asked if he had consumed alcohol but he denied it, shortly thereafter telling her in response to a question that he had an alcoholic drink 6 hours earlier but none in the previous 15 minutes. She said she observed a slight sway. He was neither slurring his words nor mumbling. She did not feel there were grounds for an Impaired Driving charge. [ 19 ] The officer told the court that in light of her observations, about 3-4 minutes after she began speaking to him, she had a reasonable suspicion the defendant had alcohol in his blood system.

At 4:27 a.m., she demanded he provide a sample of his breath into a roadside screening device. She said he appeared to understand her and agreed he was then not free to leave. [ 20 ] The investigation had become criminal in nature, as a result of which P.C. Paroussoudi was relieved of her duty as lead investigator. She had a screening device with her that she believed to be in proper working order. She both explained and demonstrated how to provide a suitable breath sample. On his first attempt, Mr. Puvtoski stopped blowing very quickly and on the second he provided insufficient air volume.

He gave a suitable sample on his third attempt, registering a Fail. The officer arrested him for Operation Over 80 at 4:28 a.m. [ 21 ] P. C. Paroussoudi testified she read the accused his rights to counsel from the back of her notebook at 4:30 a.m. and then a caution, she said, in both formal and simple language. She told the court that the defendant said he understood both. At 4:32 a.m., following the Intoxilyzer demand, again provided as well in simple language, the accused said he “will go” when asked if he understood.

When the officer inquired if she could speak with him in English, he said, “I will try”. [ 22 ] She described Mr. Puvtosky at this point as having red eyes and seeming a little unsteady, although she acknowledged he had just been in an accident. They left for 41 Division at 4:36 a.m., arriving at 4:43 a.m., where there were facilities for breath testing. [ 23 ] P.C. Robert Kerr, a qualified Intoxilyzer technician, was instructed at 4:33 a.m. to attend 41 Division where he was given to understand he was to conduct breath tests in a personal injury driving case.

He arrived at 4:35 a.m. and within 5 minutes after warming up the device began to perform the required diagnostic tests to prepare the instrument to receive breath samples. At 4:46 a.m. he determined that following a calibration check the device was not working properly. Two more such tests confirmed that for him at 4:49 a.m. As he could not satisfy himself that he could correct the instrument within a reasonable time to accommodate the ‘as soon as practicable’ standard for testing, he felt it prudent to send the arresting officer with her detainee to 32 Division, the nearest available location.

A forensic toxicologist later confirmed that this decision was correct. [ 24 ] While P.C. Paroussoudi waited in the sallyport with her prisoner, the technician came out to let her know that there would be a delay while he attempted bring the instrument into proper working order. A few minutes later, the officer was told she should drive to 32 Division to have the breath tests conducted. [ 25 ] Prior to leaving, P.C. Paroussoudi and her detainee had been in the sallyport for 12 minutes during which for the most part the defendant had been sleeping in the back seat of the cruiser.

She told the court she did not consider it feasible to facilitate access to

counsel because of privacy and safety considerations she expected could be accommodated in short order inside the station. [ 26 ] P.C. Paroussoudi left the sallyport at 4:55 a.m., arriving at 32 Division at 5:12 a.m. Mr. Puvtoksi was paraded before Sgt. Mendoza and then at 5:29 a.m. handcuffed on one hand to a bench in the report room outside the breathalyser room. [ 27 ] The sallyport and booking videos provide some perspective on the language issue. On the booking video, the arresting officer asked the defendant twice how old he was but received no answer.

When the booking Sgt. asked him why he was arrested, Mr. Puvtoski responded that he was driving over 80 “kilometres”. He was asked to spell his last name and did so for both of his names and provided his date of birth, address and phone number. In response to other questions, he said he had no injuries, took no medications, had no mental health issues and no jewellery or a watch. He was told he could speak with duty counsel. [ 28 ] On the issue of comprehension, P.C. Paroussoudi did not dispute that the defendant would repeat himself, speak in broken English and at times struggle to find words.

She said he declined an opportunity to speak to a Greek duty counsel as he spoke Macedonian, however, there is nothing in her notes to this effect. Also absent from her notes is any indication she offered to provide a Macedonian interpreter as she averred only in cross-examination. These omissions bear on her testimonial reliability. [ 29 ] When the accused was in the report room, P.C. Paroussoudi said she sought to arrange for her detainee to speak with duty counsel but there was only one phone that was being used. She is mistaken in this regard. P.C.

Mark Poliak, who subsequently joined the investigation, informed the court there were 2 phones. [ 30 ] P.C. Paroussoudi said she was able to speak to duty counsel at 5:35 a.m. and received a call back 16 minutes later but indicated there was another prisoner in the phone booth at that time. Duty counsel would not wait so that she was unable to make another call until 5:57 a.m. That call was returned at 6:18 a.m. The defendant finished speaking with duty counsel at 6:23 a.m. [ 31 ] Mr. Puvtoski provided his first breath sample at 6:29 a.m. and second at 6:51 a.m.

The test results were 116 and 115 mgs, respectively. P.C. Paroussoudi was present for both. She said the accused did not express any language difficulties during the testing process. [ 32 ] The defendant was told that his readings were over the legal limit. The breathalyser technician explained the potential consequences. Mr.

Puvtoski, in a statement conceded to be voluntary, and indicating both understanding and a degree of fluency, said that he was travelling northbound in the right lane on Kennedy Ave planning to exit onto Hwy 401 when a motorcyclist came from his left side and made a wide turn in front of his vehicle. To be clear, this utterance is limited to a weighing of language comprehension. [ 33 ] Mr. Puvtoski was provided a certificate of a qualified technician and a 90-day license suspension. P.C. Paroussoudi was unsure if the defendant understood his conditions of release.

She said he told her that he would permit the taking of his photograph and fingerprints if he could speak with counsel again. She facilitated his doing so. She said he did not ask for a Macedonian-speaking lawyer. [ 34 ] As the Intoxilyzer results were obtained outside the statutory 3-hour limit, the Crown called Teri Martin, a toxicologist from the Centre of Forensic Sciences [CFS] to extrapolate the readings back to the time of driving. Ms.

Martin’s expertise in relation to that issue, the operation of breath testing instruments, and the effects of consumption of alcohol on the ability of an individual to operate a motor vehicle, were admitted by the defence. [ 35 ] Ms. Martin testified that based on the information provided to her about the defendant his projected blood alcohol concentration [BAC] at 3 a.m. would have been in the range of 125-180 mgs. and at 3:30 a.m., 120-170 mgs. [ 36 ] Regarding the defendant’s ability to operate a motor vehicle, Ms.

Martin told the court that the defendant would have been impaired at 80 mgs, and particularly in light of his BAC. She said that given the literature, as well as her own research, she is able to assert this fact with a reasonable degree of scientific certainty. [ 37 ] Ms. Martin explained that driving is a divided-attention task that is extremely sensitive to the impairing effects of alcohol, which is a central nervous system depressant that causes sedation. This would inevitably impact negatively on one’s reaction-time choices when behind the wheel. [ 38 ] Of note, Ms.

Martin told the court while an Intoxilyzer technician is able to check calibration, he or she is unable to recalibrate the device to ensure it is in proper working order. As noted earlier, this evidence tends to support P.C. Kerr’s decision to have the accused attend a different police division for breath testing. [ 39 ] P.C. Poliak arrived at 32 Division at 8:10 a.m. He testified that P.C. Paroussoudi advised him that she had provided the defendant his rights to counsel and cautioned him. He said she did not indicate that she had also offered her detainee a Macedonian- speaking lawyer. [ 40 ] P.C.

Poliak dealt with the paper work necessary for the defendant’s release. He told the court he observed the accused to have red and glossy eyes and a strong smell of alcohol on his breath. He said Mr. Puvtoski became upset with him when he explained the conditions of his release, including the need to take his fingerprints and photograph. He recalls the defendant saying, “I’m not a criminal, I did nothing wrong, put me in jail, I don’t care”. He demanded to speak to a lawyer again, although not one who spoke Macedonian.

As noted earlier, he was given that opportunity. [ 41 ] Following the accused’s second consultation with duty counsel, P.C. Poliak recalled that he said, “fine, I’ll do prints, whatever you want” in speech the officer described as accented but slurred in that Mr. Puvtoski tended to prolong the ‘s’ at the end of his words. He made note of the defendant also saying, “I can’t believe this. I didn’t cause this. I’m not drunk. I drank 6 hours before this happened”. [ 42 ] Mr. Puvtoski agreed to the conditions of release before Sgt. Mendoza. The release video shows the accused to be

responsive to the booking officer. It is troubling that Sgt. Mendoza chose to speak in such a seemingly disinterested rapid-fire manner to someone who it was clear spoke English as a second language. It appears to reflect indifference to his responsibility to ensure detainees are meaningfully informed of their rights and responsibilities. [ 43 ] Nonetheless, Mr. Puvtoski answered all questions, spoke of his employment and said he understood the charges but disagreed with them.

He also asked how he could get home and was told he could call a cab, responding, “why should I pay for a cab, I didn’t ask to come here?” On the video, he was expressive and surprisingly articulate. He signed the release papers. It suggests the defendant’s understanding of English was, as he indicated at the roadside, “good”. [ 44 ] P.C. Poliak was with the accused from 8:10–10:42 a.m. The officer told the court he had no concern about the defendant’s ability to understand him and that Mr. Puvtoski never indicated difficulty in that regard to him or the releasing Sergeant.

On the language issue, the above-noted exchange would appear to support that inference. [ 45 ] P.C. Poliak was recalled on the issue of whether the defendant had a view of the phone booth and breath room while sitting on the bench in the report room. He had been at 32 Division seven times over a number of years. He prepared a diagram that set out a general layout of the area encompassing the above-noted rooms plus connecting hallway. [ 46 ] The officer testified that from the bench one is able see into the hallway only.

He conceded some slight inaccuracies in his diagram but maintained that the defendant would not, as he asserted, have sight of others entering the other two rooms that were around the corner from the report room. Defence Evidence on the Charter Applications (

a) The s. 10(

b) language Issue [ 47 ] Mr. Puvtoski testified in support of his Charter complaints. He is married and has one daughter. He came to Canada in 1989 from Macedonia where he told the court he learned no English. He says that within his family only his native language was spoken. In addition, he indicated that Macedonian is the sole language he uses in his employment, as well as in his social and religious life. He does not read or write English. He says he understands some English words and believes his use of that language is poor. [ 48 ] The defendant has been a self-employed truck driver since 1998.

To obtain his license he took a 60-hour course, of which 10 hours were theory taught entirely in English and for which he had no interpreter. He wrote his exam in English with the assistance of an interpreter. The practical portion of the exam, including the comprehension of road signs while driving, was also conducted in English. He passed. To meet Ministry requirements, he does safety checks and keeps a log-book in English.

He says he is able to communicate with police officers who stop him on occasion to conduct spot safety checks. [ 49 ] It is open to be inferred on all the evidence that he has minimized his facility in and understanding of the English language, particularly given his use of it in the police videos and in his training for, licensing and functioning as a self-employed trucker. [ 50 ] In determining whether there were “special circumstances” requiring that the police use an interpreter to ensure adequate comprehension on the part of the defendant with regard to his Charter rights and obligations in the investigative process, it is necessary to weigh the evidence, including that of the accused, limited in this proceeding to a focus on the issues of language, as well as Charter- compliant provision by the authorities of his other rights under sections 7, 8 and 9. [ 51 ] Video evidence of the defendant at the scene, in the sallyport, during the booking procedure, in the breathalyser room and when released assists in an assessment of the defendant’s language comprehension and testimonial reliability in this voir dire.

At the scene, in response to questions, Mr. Puvtoski gave his age, first language, occupation, indicated how long he had been in Canada and when asked if he understood he had a right to speak with a free lawyer answered that his speaking is bad but he can understand “good”. He told the booking Sergeant at 32 Division that he understood what he was arrested for. He provided his address and phone number and indicated he had no injuries, was not on any medication, was mentally sound and had no jewellery on him. In the witness box, Mr.

Puvtoski spelled his name using the letters of the alphabet. [ 52 ] Nonetheless, it is possible the defendant was unaware of some of the technical language used by the police in their investigation of him during the breathalyser process. He denied being offered a Macedonian interpreter, or being aware of that right, indicating he would have accepted that opportunity, a common sense inference in the circumstances.

In fact, he testified that he asked for a Macedonian interpreter many times, of significance, an assertion not borne out at least on the video evidence. [ 53 ] He also indicated that his brother-in-law, who spoke English, was on scene and he so informed P.C. Paroussoudi, but says he was not given a chance to speak to him. The weight to attach to this latter assertion is diminished by failure to put this suggestion to the officer. [ 54 ] Mr. Puvtoski told the court that after the accident an officer directed him to stay put. He felt he had to remain or he would be arrested.

He said he felt obliged to tell the police what happened and whether he had anything to drink, as well as accompany the officer to her cruiser, being given no choice in those matters. He denies being cautioned about anything he might say. [ 55 ] Mr. Puvtoski said he was never informed that he had a right to silence despite having spoken to duty counsel. He did not complain to the police that he was unable to understand the advice of duty counsel, although interestingly he asked to speak to one again during the releasing process. He claimed that P.C. Poliak interrogated him about the accident and his private life.

There is nothing in the officer’s notes to this effect. [ 56 ] The defendant testified that prior to his breath tests he observed two other detainees in the report room along with two officers, none of whom were using the phones. He also says he had a view of the private phone booth and that it was not in use. He claims when first taken to use the phone he believed he would be speaking to someone from his family. He says he only understood a few words of his conversation with duty counsel but failed to inform the breathalyzer technician. He later told the court that he read, but

did not understand either the contents of his promise to appear or his discussion with police about it, although he said nothing at the time. He denied having understood he was suspended from driving for 90 days. [ 57 ] Mr. Puvtoski testified that he signed his release papers only because he was told the alternative was to be taken to jail on a Saturday when there was no judge to let him out. Perhaps convenient to his narrative, he seemed able to understand this aspect of what he was told. (

b) The Accident Scene [ 58 ] Following the collision, Mr. Puvtoski denies he was asked to remain by either of the paramedics, but rather was directed to do so by the first officer on scene, one whom he is unable to identify. He had a bystander call his brother-in-law, although he had his own cell phone. [ 59 ] Mr. Puvtoski disagrees that P.C. Paroussoudi initially asked him for his papers and says she wanted to know if he was the driver of the van, later requesting his identifying documents at her cruiser.

He claims she questioned him about his alcohol consumption as they made their way to her vehicle and again once there. He agrees he told her that he understood English but did not speak it well. He denies she asked him about a lawyer or that she ever offered him one that spoke Macedonian. [ 60 ] With regard to the officer’s demand for a roadside breath sample, the defendant says he did not understand a word, but by her subsequent use of simpler language and gestures he came to comprehend the request and complied. He denies the officer showed him a mouthpiece although he agrees she demonstrated its use.

He insists his first 3 samples did not register a result and that he was arrested before he could begin his fourth attempt. He believed the device never registered a Fail, a word he says he understands, and he rejects the suggestion the officer told him that it did. [ 61 ] Mr. Puvtosky denies he was provided information about free legal assistance. He insists the officer did not make a breathalyser demand.

What is significant in this evidence is that the defendant asserts that had either of these substantive matters been articulated, even in simplified language, he would inevitably have asked for clarification, as he would have understood some words. [ 62 ] He says that in the result he did not ask to speak to counsel on arrival at the police station because he was unaware of that right until informed of it when booked. He claims he was unaware of his right to a Macedonian-speaking lawyer, although he was asked by the booker if was able to speak in English.

His passivity here contrasts with his questions heard on the in-car video, in the sallyport and later in his animated responses to the releasing officers. [ 63 ] Mr. Puvtoski says he asked the arresting officer numerous times to be able to speak with his brother-in-law, something never done when he was on camera.

His reasoning for not asking for an interpreter nor indicating his lack of understanding when being recorded was that he had purportedly been rebuffed in this regard at the scene of the accident, assertions that in my view of the evidence were both implausible and convenient to his narrative. [ 64 ] The defendant went on to testify that he asked for a Macedonian interpreter while in the report room. It is unclear why he failed to do so minutes earlier before the booker when the issue of counsel was raised with him. He denies he was made aware he would be speaking with duty counsel.

He says that while he was in the report room neither of the other two detainees were taken to the phone booth. [ 65 ] Mr. Puvtoski agrees he did not advise the breathalyser technician that he could not understand most of what duty counsel said to him. In fact, video evidence shows the technician to be speaking quickly with the defendant nodding and responding that he understands what is being said. He is asked to indicate any lack of understanding and says he will. Of note, he does not request the assistance of an interpreter.

It would appear from his evidence that he mostly expressed his difficulties with language when not being recorded permitting an inference of self-serving evidence. [ 66 ] Mr. Puvtoski agrees that during the releasing process he answered PC. Poliak’s questions in English. He asked to consult counsel again regarding fingerprints, but did not request an interpreter. The video evidence supports the inference that he substantially understood what was being said and was clear in expressing his disagreement with the charges.

The Operation Impaired Charge Evidence of the Accident Reconstructionist [ 67 ] Sam Kodsi is a professional consulting engineer whose qualifications to give opinion evidence on accident reconstruction, including vehicle dynamics and distance analysis, were accepted by this court. [ 68 ] Crown counsel challenged the witness’s expertise in driver perception and response in relation to which Mr. Kodsi has studied the relevant literature, attended conferences and published two papers that were peer reviewed and which he asserts is an integral part of accident reconstruction.

His evidence in this regard has been accepted numerous times in this court and in the Superior Court. [ 69 ] Mr. Kodsi testified that driver perception and response, a human factor involving elements of psychology, ties into an analysis of crash avoidability, and has been a component of accident reconstruction literature since the 1940s.

He describes the starting point of analysis in this regard, using recent software accepted by his industry across North America, as “the beginning of perception where the object is easily identified as an immediate hazard requiring response”, the most common one being to put foot to brake. He participates in continuous research on this issue that has been part of more than one-third of the over 2000 reconstructions he has undertaken. Following submissions, I found Mr. Kodsi qualified to give opinion evidence on a typical driver’s perception and response time in the context of accident reconstruction.

He says this takes into account 85% of all drivers. [ 70 ] His analysis of the evidence and focus in this case was to determine if a typical driver in the physical circumstances of this accident had sufficient time to respond. Put another way, was the crash avoidable. If not, he says, the effect of alcohol on the driver is

irrelevant. As indicated earlier, the calculation of time to impact begins only when the objective first becomes visible as a hazard. [71] Mr. Kodsi says that the most conservative starting point to calculate the available reaction time of a typical driver in thiscase is the easily detectable median separating the north and southbound lanes of Kennedy Rd. This would leave the motorcycle visibleas an immediate hazard to the van at a distance of 11 metres. It is possible the accused was aware of the motorcycle even earlier,although this would be hard to quantify. [72] Mr.

Kodsi relied on the witnesses’ statements, as well as police reports and diagrams. On the evidence, it was apparent thatthe intersection was well lit. The front of the mini-van struck the right side of the motorcycle. Given the uncertainty of the speed of themotorcycle, Mr.

Kodsi used a range of 25-80 kmh., so that it was his opinion that the time it would take for a typical driver to moveeasterly from the median, or even from the traffic signal facing him or her was 2 seconds or less. [73] According to the black box recovered from the defendant’s vehicle, his northbound speed five seconds before impact was55-56 kmh. He applied his brakes only one-second prior to impact. It would appear he was approaching a red light at a questionablespeed. [74] Mr.

Kodsi concluded on the assumption the motorcycle entered the intersection on a red light that for a typical driver thecrash was unavoidable in the circumstances. In this, he relied on Mr. Hartle’s first statement to the police. [75] However, in a subsequent statement, Mr. Hartle indicated that on further consideration he was unsure if Ms. Grey enteredthe intersection on an amber light or just after it turned red. In this regard, he testified that as he was stopping at the intersection he firstsaw the motorcycle part way into the intersection and slowing down. [76] Were this the case, Mr.

Kodsi was of the view that the defendant ought to have slowed down and was travelling too fast inrelation to the proximity of the stop bar facing him. It would as well, in the circumstances, permit an inference of diminished awarenesson his part. Positions of the Parties Issues Raised by the Defence [77] In brief, Mr. Tomovsky makes the following submissions:

(1) Statements made by the defendant at the scene to the arresting officer concerning his identity and his condition were statutorilycompelled and therefore inadmissible;

(2) Observations of impaired indicia made directly as a result of these compelled utterances are also inadmissible undermining the basisfor the officer’s reasonable suspicion the accused had alcohol in his system;

(3) A faint odour of alcohol on the defendant’s breath was an insufficient objective basis upon which to support a reasonable suspicion;

(4) The accused was detained almost immediately after the collision in relation to which the authorities failed to immediately providehim his rights to counsel as well as access to counsel at the first reasonably available opportunity;

(5) On the evidence regarding the defendant’s language difficulties there was a positive indication of ‘special circumstances’ thatrequired the police to take further steps to ascertain his ability to meaningfully comprehend and act upon his rights to counsel, which theauthorities failed to do;

(6) Material evidence was lost as a result of unacceptable negligence on the part of an investigating officer egregiously undermining theaccused’s ability to make full answer and defence and causing irreparable harm to the administration of justice, in the circumstancesrequiring a stay of proceedings under s. 7 of the Charter or in the alternative exclusion of the breath results as a remedy under s. 24(1);

(7) All of these infringements on their own and, in particular, collectively should, following a Grant analysis under s. 24(2), lead to theexclusion of the breath test results: R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 (S.C.C);

(8) The evidence does not meet the Stellato standard for proving the accused’s ability to drive was impaired by alcohol: R. v. Stellato, (SCC), [1994] S.C.J. No. 51, affg (ON CA), [1993] O.J. No. 18 (C.A.). Position of the Prosecution [78] In response, Ms. MacDonald submits as follows:

(1) Mr. Puvtoski was not initially detained at the scene;

(2) Even if detained, observations of the detainee’s indicia of impairment are not conscriptive evidence and are admissible;

(3) The defendant has not discharged his onus of establishing that he was making a report under s. 199(1) of the Highway Traffic Act sothat his initial utterances are admissible;

(4) The odour of alcohol alone on a suspect’s breath is sufficient to support reasonable suspicion and a lawful demand for a roadsidesample of his or her breath;

(5) The evidence supports the reasonable inference that the defendant understood and was able to fully exercise his right to retain andinstruct counsel without delay;

(6) Given the complicated circumstances there was a reasonable explanation for the delay in providing the accused a reasonableopportunity to exercise his s. 10(

b) rights;

(7) There is no firm evidence that a material witness statement was lost by unacceptable negligence;

(8) Assuming Charter infringements, a balancing of the Grant factors favours inclusion of the evidence;

(9) The prosecution has met the Stellato test for Impaired Driving.

The Authorities and their Application to this Case Statutorily Compelled Statements [79] A driver involved in a collision is obligated under ss. 199 and 200 of the Highway Traffic Act [HTA] to report theparticulars of the accident, including “other information that may be necessary to complete a written report”. [80] In challenging the admissibility of the contents of the report in a criminal proceeding, the accused bears the onus ofestablishing on a balance of probabilities that he or she had an “honest and reasonably held belief that he or she was required by law toreport the accident to the person to whom the report was given”: R. v.

Soules 2011 ONCA 429, at paras. 13, 43, following R. v. White,(1999) (SCC), 135 C.C.C. (3d) 257 (SCC), per Iacobucci J. [81] Assuming the onus is met, it was held by LaForme J., in Soules, at paras. 7 and 43 that the statements are inadmissible in acriminal trial, including for the purpose of establishing grounds to make an approved screening device or instrument demand. In Soules,the officer had begun to question those involved, including the accused, about what had happened to cause the collision.

That is not thiscase. [82] As well, there is some indication in the authorities that when an officer smells alcohol on the breath of a driver during thetaking of a statutorily compelled statement, that observation is also to be excluded. In R. v. Powers 2006 BCCA 454, the court relied onthe lower court finding that the officer had begun to mentally complete an accident report. It excluded both the statement and detectionof the smell of alcohol. [83] This was reinforced more recently in R. v.

Wenham 2014 ONSC 994, at paras. 18-22, where the court excludedobservations, including an odour of odour of alcohol, pursuant to Charter s. 24(1) and at common law because they were obtained solelyas a result of statutorily compelled statements. In Wenham, following the accident, the accused called 911 and then providedinformation to the police about the manner in which the accident occurred, information used in the filing of a report. Again, that is notthis case. [84] In R. v. Germaine 2012 ONSC 3928, the accused felt she had a duty to remain at the accident scene and provideinformation.

The investigating officer intended to prepare an s. 199 report, as well as assess whether alcohol was involved. He had thedriver sit in the cruiser as a matter of convenience. Before the officer began to elicit information he smelled alcohol on the accused’sbreath. This changed the nature of the investigation. [85] Gauthier J. held that this observation did not result from “any compelled direct participation…in any activity designed toprovide evidence, nor…in the making of a traffic accident report under s. 199 of the HTA”.

He found that, unlike in Soules, at themoment the officer detected the odour of alcohol he was not attempting to elicit information. [86] In the case at bar, the investigating officer confirmed only that the accused was the driver, inquired if he was injured,requested his identifying documents and asked him to accompany her to the cruiser in order to prepare a report. I do not accept thesubmission that the officer had no need to ask these questions because she had indirect information to that effect, a suggestion that ifrelied on would have ensured

an act of professional negligence in the circumstances in failing to confirm facts for herself. [87] Even if the defendant believed he was required by statute to remain and answer questions about the collision, and I willhave more to say later on in these reasons about his evidence, a significant portion of which I found to be self-serving and unreliable,these preliminary questions were as a matter of common sense necessary to found authority to act under s. 199, but not a ‘report’ ascontemplated in that section: R. v. Parol 2011 ONCJ 292, per Duncan J.

As well, I am of the view that the officer’s detection of theodour of alcohol on the way to the cruiser, prior to the eliciting of material information, reflects general observations an officer mightmake of the driver while carrying out other authorized duties and which are admissible: see R. v. Milne, (ON CA),[1996] O.J. No. 1728 (Ont. C.A.), at para. 39, followed in Germaine, at para. 35. Reasonable Suspicion [88] Mr. Tomovski submits that the odour of alcohol detected by the officer was insufficient here to support a reasonablesuspicion the defendant had alcohol in his system.

The authorities hold to the contrary. Whether or not there is an explanation, the smellof alcohol on the breath of a suspect is indicative of the presence of alcohol in his or her body: R. v. Lindsay, (ONCA), [1999] O.J. No. 870 (Ont. C.A.); R. v. Mason, [2013] O.J. No. 2822 (Ont. C.J.). [89] This established a lawful basis for the roadside screening demand that the defendant failed and which provided reasonableand probable grounds for his arrest. Detention and Timely Right to Counsel [90] Mr.

Tomovski submits that the defendant was detained shortly after the accident by an unknown officer who directed himto remain on scene. There is no objective evidence in support of this fact in issue other than that of Mr. Hartle who indicated he was theone who told Mr Puvtoski to remain. He also said he did not see any officer approach the accused until P.C. Paroussoudi did. I accept

Mr. Hartle’s evidence. For reasons provided later on, I would not rely on the defendant’s evidence. [91] It is to be noted that Mr. Puvtoski had the presence of mind to have a bystander call his brother-in-law. As well, over thecourse of the 30 minutes he remained alone there is evidence permitting an inference he retrieved his cell phone from the mini-van. [92] Once detained for a roadside-screening test, there is a reasonable limit on right to counsel during the testing process. Thereafter, access to counsel is to be provided as soon as practicable and at the first reasonable opportunity.

That is ordinarily done atthe police station where a detainee will be provided a private booth in which to speak with his or her own or duty counsel. [93] There were some unfortunate delays in this case. The grievous injury to Ms. Grey and the organizing of the accident scenetook time and effort. Taken to 41 Division, following his roadside Fail, Mr. Puvtoski was kept in the sallyport for 12 minutes because ofprisoner backup during the course of which he mostly slept in the back seat of the cruiser. In the ordinary course, he would have hadaccess to counsel after the booking procedure.

In the circumstances, I do not consider it unreasonable that the arresting officerconsidered privacy and safety concerns in waiting to enter the station before facilitating contact with counsel. [94] The Intoxilyzer instrument was determined not to be in proper working order. The defendant was driven to 32 Division fortesting. This took 17 minutes. [95] Mr. Puvtoski was booked and then taken to the report room at 5:29 a.m. The officer called duty counsel 6 minutes later. Another detainee was in the phone booth when duty counsel called back. He would not wait causing further delay.

He called back andspoke to the accused at 6:18 a.m. [96] The question is whether the police took steps to provide the defendant access to counsel as soon as practicable and at thefirst reasonable opportunity: R.v. Taylor 2014 SCC 50. These were complicated events to marshall from the collision scene to theunfortunate delays at the sallyport and in light of the malfunctioning breathalyser device. Even at 32 Division, business was active andthere was competition for the phone booth. I infer on the evidence that the police acted in good faith in difficult circumstances.Nonetheless this delay was too long.

In hindsight, the police might have acted with slightly more dispatch to meet their obligations inthis regard given the collective delays. While it is a close case, I am of the view that the defendant’s s. 10(

b) rights were infringed. Language Comprehension and the Right to Counsel [97] Where there are some objective concerns that a detainee’s comprehension of English may be limited, there is a positiveduty on the police to reasonably ascertain that the person understands his or her rights in a meaningful and comprehensive way: R. v.Vanstaceghem (1987), (ON CA), 36 C.C.C. (3d) 142 (Ont. C.A.); R. v. Barros-DaSilva, [2011] O.J. No. 3794 (Ont.S.C.); R. v Grichko, [2006] O.J. No. 2630 (Ont.

C.J.). [98] It is commonly understood that right to counsel is a fundamental Charter right intended to make clear a detainedindividual’s right to silence in a police investigation and to permit that person a reasonable opportunity to gain an understanding of his orher rights, obligations and choices in a potentially self-incriminating process. [99] In Grichko, the officer had concerns about the accused’s difficulty with English but was alive to his duty to be sure heunderstood his rights.

In this regard, there were a number of verbal and physical responses that indicated the defendant understood whatwas happening and in addition was responsive to questions. Pringle J. was satisfied that Mr. Grichko understood his rights. [100] In this case, there were concerns about Mr. Puvtoski’s facility in English and comprehension of his rights to counsel. Hecame to this country a quarter century ago not speaking the language.

As noted earlier, he communicated with the arresting officer inbroken English, sometimes repeating words and at times struggling to find them, although he indicated he understood better than hespoke, an admission borne out by the evidence. [101] In Vanstaceghem, the question was whether, despite language difficulties, the accused had been advised of his s. 10(b)rights in a meaningful and comprehensible manner. Mr. Puvtoski claims not to have meaningfully understood his rights to counsel.

Independent and other objective evidence, in the context of the defendant’s questionable testimonial reliability would appear to belie thatassertion and permits the inference that in his evidence he was attempting to minimize his understanding of English. [102] In the cruiser, sallyport and booking videos Mr. Puvtoski was responsive to questions in a manner he himself described as“speak bad, understand “good”. He made no requests for an interpreter.

He spoke to duty counsel in private, afterwards expressing nocomplaint about language difficulties, later on that morning requesting another session with counsel in order to have his questionsconcerning fingerprints and conditions of release answered, it was clear, in English. He was given that opportunity, thereafter complyingwith the terms of release permitting the inference he understood counsel’s advice. [103] In other DVD evidence, Mr. Puvtoski responded appropriately to the breathalyser technician’s questions and directionsindicating his understanding.

He was reasonably articulate and assertive in his exchange with P.C. Poliak just prior to being released, aswell as with the releasing Sgt. who peppered him with questions he was able to answer. He did not then express a lack of understandingbut rather was argumentative. I am as well mindful that a number of years ago the defendant was trained and tested to be licensed as atruck driver at least in substantial

part in English and as a self-employed trucker is able to meet some regulatory functions in thatlanguage. [104] Mr. Puvtoski’s testimony concerning his difficulties in English does not leave me in reasonable doubt on whether hemeaningfully understood his rights to counsel. I place little weight on his evidence.

He says he was never given his rights to counsel atthe scene, nor told of free duty counsel, an assertion that suggests either wilful omission by the arresting officer or, if provided,incomprehension of this right that is belied by the content of the DVD evidence. [105] The booking Sgt. asked the defendant if he spoke English. In his response he did not express a need for assistance. Hetestified that he asked for a Macedonian interpreter many times. This is not borne out on the video evidence in situations where he had

opportunity, even incentive, to do so but not once complained he lacked understanding. I view as self-serving his suggestion that hemade this request at least in the report room if not elsewhere at moments when there was no video recording. As part of the suggestedlitany of malfeasance by the officers he says he was not told he would be speaking with duty counsel. On all the evidence, I don’t acceptthat claim. [106] I am reinforced in this view of the defendant’s unreliability by other assertions. Mr.

Puvtoski says an unknown officerdirected him to remain on scene, important to his narrative of being detained early on. There is no evidence to this effect. Rather, I amsatisfied on the evidence, despite the accused’s denial, that it was Mr. Hartle, an independent witness, who told him he should stay. Thedefendant testified that he was refused a fourth attempt to blow into the roadside screening device and never registered a Fail, suggestingcontrived police testimony, on the evidence, an implausible contention. He denies being cautioned, an unlikely omission.

He says thatfrom the bench in the report room he could see that the phone booth was empty at a time P.C. Paroussoudi indicated it was in use. Iaccept the evidence of P.C. Poliak that given the layout at 32 Division that would not be possible. I would not rely on the defendant’sevidence. [107] My view of the accused’s incredibility on these material facts in issue is not diminished by reliability concerns I may haveabout aspects of the arresting officer’s evidence.

I was unimpressed with her testimony provided only in cross-examination that sheoffered an interpreter to her detainee and then failed to make note of that offer. As well, she was likely wrong that there was only onephone in the investigative office at 32 Division when it was important that the accused be given timely access to counsel.

It led me toview her evidence carefully in the weighing process. [108] In that regard, I am mindful of the responsibilities carried by officers in serious or complex investigations where limitedresources or faulty equipment may at times impact, as in this case, on the efficient and timely provision of Charter rights. Mistakes andomissions are not uncommon but must be weighed in the fact-finding process. On the issue of language comprehension, I findinferential support in the evidence that P.C.

Paroussoudi took steps to address her detainee’s language difficulties and satisfy herself thathe understood his rights to counsel. As noted earlier there is objective evidence to support that conclusion in relation to which I am notleft in doubt. [109] On all the evidence, Mr. Puvtoski has not met his onus in establishing an infringement of his s. 10(

b) rights on the basis ofunmet ‘special circumstances’. Lost Evidence [110] P.C. Kowalyk was at the time an inexperienced officer. He has neither independent memory nor recorded detail of hispurported questioning of a civilian at the accident scene beyond an impression it occurred and that the answers, whatever they were, mayhave had some relevance. His notebook indicates “assisted with statements”, leaving open the possibility he merely assisted another OPPofficer during the investigation. His record keeping here is below acceptable professional standards.

His impressions invite speculationand carry little weight. [111] This officer says he recalls providing the statement on a pre-printed OPP form, as directed, to Sgt. Chow, whom, as notedearlier, he knows. Sgt. Chow said that did not happen. [112] Although in the circumstances I consider P.C. Kowalyk’s testimony to be objectively unreliable there remains on thisevidence a possibility that a statement of some undefined relevance was prepared by him and has been negligently misplaced. On theother hand, given the evidence of the more experienced Sgt.

Chow, and the existence of only 2 OPP statements, none of which are inP.C. Kowalyk’s handwriting, it is also possible that he is mistaken about having interviewed the civilian and that a statement prepared byhim does not exist. The insubstantial nature of P.C. Kowalyk’s evidence lends support to the second possibility. [113] The authorities are clear that the Crown and police have a duty to disclose and preserve all relevant evidence: R. v. La (SCC), 1997 CarswellAlta. 490 (SCC), at para .17.

Evidence is relevant if it has some use to the defence, can be reasonablyused in meeting the case for the Crown or advancing a defence, or in making a decision which may affect the conduct of the defence: R.v. Egger 1993 CarswellAlta. 410 (SCC), at para. 20.

In the case at bar, the nature of the statement and its relevance, if any, if it exists, isunknowable. [114] Assuming the statement exists, where its loss is the result of ‘unacceptable negligence’ for which the Crown can offer nosatisfactory explanation, then the prosecution has failed to meet its disclosure obligations and the accused’s s. 7 Charter rights have beenbreached without the requirement of showing additional prejudice.

The court must in the circumstances consider the impact of thisinfringement on the accused’s right to make full answer and defence and whether the integrity of the judicial system has been harmed: see La, at para. 20; R. v. Bero (ON CA), 2000 CarswellOnt 4096 (Ont. C.A.), at para 30; R. v.

Carosella (SCC), 1997 CarswellOnt 85 (S.C.C.), at para 40. [115] There is no evidence this purported statement has been deliberately lost or destroyed, nor given the uncertain nature of theevidence can this failure to disclose be viewed as one of those rarest of cases warranting a stay of proceedings: La, at paras. 22-24; R. v.O’Connor, (SCC), [1995] 4 S.C.R. 411, at paras. 78-81; Carosella, at paras. 52-53. [116] In the event of a disclosure breach, Sopinka J. in Carosella, at para. 47, instructed trial courts to weigh whether there was‘abundant evidence’ to conclude a ‘reasonable possibility’ existed that the lost information was logically probative of a material issue attrial and infringed the accused’s constitutional right to full answer and defence.

Assuming, in the case at bar, that the statement wasprepared and inexplicably lost, there is no informed evidentiary basis upon which to make this assessment. [117] Mr. Puvtoski has had the benefit of a full and capably conducted defence that has included expert evidence and the raisingof all substantive and Charter issues available on the evidence, but complains his right to make full answer and defence has beenprejudiced by the negligent loss of a potentially relevant civilian statement. [118] On this evidence, however, the defence has not satisfied me on a balance of probabilities that P.C. Kowalyk prepared a

civilian statement that has been lost by unacceptable negligence. It is reasonably possible the officer never prepared the statement. Thes. 7 application is dismissed. Section 24(2) Remedy [119] The accused applies to have the Intoxilyzer readings excluded on the basis of a number of Charter breaches. I have foundonly an infringement of the accused’s s. 10(

b) rights. The onus is on the defence on a balance of probabilities to satisfy the court that toadmit the evidence would bring the administration of justice into disrepute: Grant, supra. [120] It is a consideration of all the circumstances that will determine whether the admission of the evidence could bring aboutthis result.

This requires the court to assess and balance the effect of admitting the evidence on society’s confidence in the justice systemunder the following lines of inquiry, including the seriousness of the Charter-infringing conduct, the impact of the breaches on thedetainee’s Charter-protected interests and society’s interest in the adjudication of the case on its merits. [121] The context for this analysis is one in which the more serious the state’s misconduct, the stronger the need to preserve thelong-term repute of the administration of justice by disassociating the court from that misconduct and excluding the evidence: R. v.Blake, 2010 ONCA 1 .

It is important to note that violation of a defendant’s Charter rights means there has already beendamage done to the repute of the system. Section 24(2) is prospective in that it seeks to determine whether admitting the evidence couldbring the administration of justice into further disrepute: Grant, at paras. 67-71. (

a) Seriousness of the Charter-Infringing State Conduct [122] Alleged state misconduct moves along a continuum from wilful and deliberate to inadvertent, minor acts committed in goodfaith. Egregious acts demonstrating reckless disregard of Charter rights will, as indicated in Grant, at para. 74, “inevitably have anegative effect on public confidence in the rule of law and risk bringing the administration of justice into disrepute”.

The concern here isnot to punish the police or deter Charter breaches, but rather to preserve confidence in the rule of law and its processes. [123] In this case, I accept that the arresting officer intended to provide the defendant access to counsel at 41 Division followingthe booking process, but unforeseen circumstances explained in the evidence led to a number of delays that diminished the accused’sright to retain and instruct counsel without delay.

While I find that the officer acted in good faith, she could have made more of an effortto facilitate access, particularly at 32 Division, given the passage of time. However, the infringement here is at the low end of thespectrum and favours inclusion of the evidence. (

b) Impact on the Accused’s Charter-Protected Interests [124] The focus here is on the seriousness of the impact of the breach, and a weighing of the extent to which it undermined theinterests engaged by the Charter right. It is case-specific because it is examined from the accused’s perspective.

The impact may rangefrom fleeting and technical to profoundly intrusive: see Grant, at paras. 76-77. [125] In this analysis, as articulated by Doherty J. in Blake, “the graver the state’s misconduct, the stronger the need to preservethe long-term repute of the administration of justice by disassociating the court’s processes from that misconduct”. [126] Mr. Puvtoski was an immigrant who was not entirely fluent in English. He was alone in an unfamiliar environment inwhich his liberty interests were diminished and he was too long without access to counsel to advise him about his rights and obligations.

Unforeseen circumstances and a busy police division led to this delay. At the same time, the defendant was not questioned. He soughtand was later provided an additional opportunity to consult counsel.

I do not consider that the delay and its impact on the accused’sinterests in these circumstances require exclusion of the evidence in order to preserve the long-term repute of the justice system. © Society’s Interest in a Trial on the Merits [127] This inquiry stresses the truth-seeking function of trials and generally favours admission of the impugned evidence,particularly where the evidence is considered reliable and is important to the prosecution’s case.

In Grant, the court held that exclusionof reliable evidence, particularly where the method of its collection of bodily samples is considered in the authorities to be relatively non-intrusive may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution:see R. v. Stillman, (S.C.C.). [128] In these circumstances, society’s interest is high and favours inclusion of the evidence.

On a balancing of the factors theevidence will be admitted. [129] In the circumstances, on all the evidence, the Crown has proven the essential elements of the Operation Over 80 charge. There will be a finding of guilt. The Operation Impaired Charge [130] The offence of Impaired Driving is made out if the evidence establishes any degree of impairment of one’s ability to driveranging from slight to great: R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), affmd (SCC), [1994] 2 S.C.R. 478. In most cases, a slight departure from normal conduct will not meet this test: R. v.

Andrews (1996), 1996ABCA 23 , 104 C.C.C. (3d) 392 (Alta. C.A.).` [131] I am mindful that P.C. Paroussoudi did not initially observe indicia that led her to believe the defendant’s ability to drivewas impaired by alcohol. She found him a little unsteady on his feet and his eyes red. He failed the roadside screening test. She knewlittle of the circumstances concerning the collision and its significance to this issue. Later on in the morning, P.C. Poliak noted red andglossy eyes, slight slurring and a strong smell of alcohol on the accused’s breath.

[132] There is, however, other evidence to be weighed in this respect. Extrapolated back to the time of driving, Mr. Puvtoski’sBAC at 3:30 a.m. was, according to the analysis of the forensic toxicologist, which I accept, in the range of 120-170 mgs. Ms. Martinwent on to testify that the defendant would have been impaired even at 80 mgs.

She explained that driving is a divided-attention taskthat is extremely sensitive to the sedating effects of alcohol on one’s central nervous system that in turn has an inevitable negative impacton a driver’s reaction-time choices when behind the wheel. [133] The authorities permit the court to weigh this expert evidence on the question of the degree of impairment of a person’sability to drive: R. v. Letford, (ONCA), at para. 22, per Goudge J.A. I view this evidence in the context of thecircumstances of the collision and the testimony of the accident reconstructionist. [134] Mr. Kodsi testified that had Ms.

Grey entered the intersection on an amber light it would mean that Mr. Puvtoski had beentravelling too fast in relation to the proximity of the red light and stop bar facing him. If it were otherwise and Ms. Grey entered as thelight turned red, then the collision would, in Mr. Kodsi’s opinion, be unavoidable irrespective of the effects of alcohol. [135] I accept Mr. Hartle’s evidence upon reconsideration that as he was stopping at the intersection just before the light facinghim turned red he first saw the motorcycle part way into the intersection and slowing down.

I consider it probable that he made thisobservation accurately. But these were fast moving events and I am mindful of his first statement that he believed the motorcycle enteredon a just-turned red light. In the circumstances I cannot be satisfied to the near certainty required in the authorities to find as a fact thatMs. Grey entered on an amber light: R. v. Starr, 2000 SCC 40 [136] Nonetheless, Mr.

Kodsi’s analysis had the defendant travelling northbound facing a red light at a speed of 55-56 kmh, 5seconds before impact and failing to brake until one second prior to impact, permitting the inference, given the breath readings, ofdiminished awareness on his part. [137] This evidence in combination satisfies me beyond a reasonable doubt that the defendant’s ability to drive was at leastslightly impaired by alcohol. He will be found guilty on this count. It will, however, be judicially stayed given my finding on theOperation Over 80 charge. Released: December 4, 2014 Signed: “Justice L. Feldman”