R. v. Maxwell, 2019 ONCJ 930

ONTARIO COURT OF JUSTICE CITATION: R. v. Maxwell, 2019 ONCJ 930 DATE: 2019·12·13 NEWMARKET 18-06984 BETWEEN: HER MAJESTY THE QUEEN — AND — BRAD MAXWELL JUDGMENT Evidence Heard: June 19,20, December 9, 2019. Delivered: December 13, 2019. Ms. Ivana Denisov .................................................................................... counsel for the Crown Mr. Christopher Avery ........................................................................ counsel for the defendant KENKEL J.: Introduction [1] Staff Sgt.

Kempster received a complaint about a possible impaired driver leaving the scene of a collision at a gas station.She located the red pickup truck and saw it drift sharply to the right over the lane line. Mr. Maxwell was stopped and furtherobservations at the roadside led to his arrest for impaired driving. The Crown did not proceed on the second count and both counselagreed that no reference would be made to any evidence gathered at the station. [2] Mr. Maxwell explained the circumstances of the minor collision and why he left.

He also explained the various drivingdeficiencies observed by the officers and the civilian witness. The issue for decision in this case is whether the Crown has proved thecharge alleged beyond a reasonable doubt. In reviewing the evidence in the context of the Crown’s burden of proof, the framework in R vWD (SCC), [1991] SCJ No 26 applies. The Evidence [3] Mr. Douglas was pumping gas at a station near the 404 entrance on Woodbine. He saw a red pickup truck reverse from thestore area into another car that was parked beside him at the adjacent pump.

He overheard the truck driver say that he didn’t haveinsurance and that caught his attention. He also noticed that driver had stumbled when getting out of his truck. It appeared to him that thewoman whose car had been hit did not speak English well. He decided to call police and report the incident. When the red truck droveout of the gas station and onto the 404 highway, he followed. [4] On the southbound 404 highway the speed of the red truck fluctuated but it was generally travelling at a fast speed up to130km/hr. Mr. Douglas saw the pickup truck swerving in and out of lanes.

The swerving to both sides was constant. [5] Near Davis, Mr. Douglas saw police vehicles at the side of the road so he put on his 4 way flashing lights. The police thenpulled onto the highway and behind the red pickup truck. Mr. Douglas flashed his lights (high beams) and the officers sped up ahead ofhim. Mr. Douglas backed off and took the next exit, but he saw police pull over the red pickup truck. [6] Constable MacPherson saw the red pickup at Davis Drive with the civilian caller a few car lengths behind with active 4-waylights.

He saw the pickup change lanes, then make another quick lane change very close to the vehicle it had just passed. The speed ofthe pickup varied. The officer confirmed the plate matched the plate of the vehicle involved in the initial call. Constable MacPhersonsaw the pickup cross over into a merge lane, straddle that line and then wavered within the lane. Once Staff Sgt. Kempster pulled up, thetwo officers caused the pickup to stop.

[ 7 ] Staff Sgt. Kempster pulled behind the red pickup after Davis Drive. By that time Constable MacPherson’s marked cruiser was already following the pickup. She saw the pickup drift sharply to the right to the extent that both right side tires were over the white line towards the guard rail into the shoulder area. The vehicle then corrected back. She activated her lights to signal the pickup to stop just north of Aurora Road. Constable MacPherson was already at the pickup passenger side door when she stopped.

She dealt primarily with the passenger, but she made the following observations in relation to the driver Mr.

Maxwell: • his eyes were red, heavy lidded; • there was an odour of alcohol coming from his mouth; • there was a ¾ full bottle of vodka on the floor behind the driver’s seat but outside of a bag in that same area. [ 8 ] Constable MacPherson spoke first with the passenger, then made the following observations when he dealt directly with the accused: • he looked drowsy; • his speech was slightly slurred; • when he stepped out of the vehicle he was unsteady on his feet; • he put a hand on the truck to maintain balance when he walked; • there was a strong odour of alcohol on his breath. [ 9 ] The accused’s passenger, Mr.

Lucente, testified that he did not think the accused was impaired that night. In cross- examination he testified that Mr. Maxwell told him he had not been drinking before they got into his truck. Mr. Lucente agreed he himself was, “staggering, blackout drunk” that evening. [ 10 ] Mr. Maxwell testified that he had “two … maybe three beers” Coors Lite, over more than 8 hours at a barbeque with friends. He knows what he’s able to drink and still operate a motor vehicle. He didn’t feel the minimal alcohol he consumed impaired his ability to drive.

He drove to the store part of the gas station and parked there because Mr. Lucente needed cigarettes. Mr. Maxwell didn’t need gas. Mr. Maxwell didn’t notice any other cars in the pump area when he looked back, but when he reversed a minute later he hit a car parked at the pump behind him. He was shocked that there was a car there as he hadn’t seen it even though he looked in his rear mirror immediately before backing out. Mr. Maxwell attributed the collision to the position of the other car which he said was parked forward into the lane. Mr. Maxwell did not notice Mr.

Douglas pumping gas at the pump beside the car that was hit. Mr. Maxwell spoke to the owner of the other car and they exchanged phone numbers. He was “comfortable with how we handled it” so he left. [ 11 ] On the southbound 404 highway, Mr. Maxwell argued with Mr. Lucente about whether he should take him home in his condition or take him to Mr. Maxwell’s place off the Green Lane exit. After a few minutes he noticed a vehicle following with high beam lights on and 4 way flashers. He found that distracting and he wondered whether the person following was a friend of his or not.

The following car kept high beams on with flashing lights the whole way down the 404 highway. Mr. Maxwell agreed in cross- examination that his speed on the 404 fluctuated between 100 and 130km/hr but he was generally speeding. Mr. Maxwell did not notice the police cruiser or the second police vehicle that pulled in behind him after Davis Drive until they activated their lights for a stop just before Aurora Road. He explained that the cruiser pulled into his blind spot quickly. [ 12 ] In examination-in-chief, Mr. Maxwell was asked about one instance when he drove out of his lane onto the shoulder to the right.

He explained that he looked behind him, motioning to indicate not looking with his mirrors but physically turning around to look. He wanted to look at the car that was flashing high beams in addition to the 4 way flashing lights. Mr. Maxwell testified that he did not pass a vehicle and did not do so in the manner described by PC MacPherson. Mr. Maxwell said he was concerned for his safety given that the person behind him kept flashing lights. He was glad when the police pulled him over. In cross-examination Mr.

Maxwell denied that his vehicle was swerving but he said he kept looking over his shoulder at the car behind so he “would have crossed some lines.” When asked about swerving, he didn’t contest that assertion but attributed swerving to a reaction to the person flashing lights behind him, “Yes, assume so yes”.

He also said that caused him to drive onto the shoulder of the roadway at times because he kept looking back, “I think it’s because I kept looking over my shoulder at this guy.” He agreed that driving in that manner on the highway at that speed could be “somewhat dangerous.” In re-examination he said he thought the person behind him “was actually going to hurt me” and he simply wanted to get to a safe space. [ 13 ] Mr. Maxwell testified that once stopped the police were yelling at him to take his keys out of the ignition.

The officers yelled at him, took him out of the car and put him under arrest “just like that”. He was not unsteady when he got out of the vehicle, but the police were aggressive with him and grabbed him by the arm and “forced” him to the police car. He was not used to walking while handcuffed and being grabbed by the arm. He did not recall having to steady himself on the truck. He’d had only two or three light beers over more than 8 hours and he ate food at the barbeque so he didn’t think his breath smelled of alcohol by the time he was stopped. [ 14 ] Mr.

Maxwell said he did not know there was a bottle of vodka behind his driver’s seat. The bag in that area was one he takes to the cottage. He knew his bag was there, but he didn’t know a bottle was in the same location outside his bag. The Submissions of Counsel [ 15 ] The defence submitted that Mr. Douglas suffers from “superhero syndrome.” He would say anything to make himself look good and others look bad. The officer’s evidence regarding a sharp swerve to the right exaggerates what was a drift in that direction.

The defence submits that nothing in the accused’s driving at the gas station or on the 404 highway is an indicia of impairment. The charge should be dismissed.

[ 16 ] The Crown submitted that Mr. Douglas was an independent witness who had no motive to lie. He testified that he noticed a stumble at the gas station, he did not say the accused was staggering so there’s no indication of exaggeration. The witness was calm and responsive throughout despite close cross-examination. The observations of Mr. Douglas are consistent with the observations of the officers and the in-car videos. The whole of the evidence proves the charge alleged. Analysis [ 17 ] Mr. Douglas had no connection to either Mr. Maxwell or the owner of the car that was hit at the gas station.

It’s true that he became involved in the matter when others might not have, but his explanation was reasonable – he saw a driver who stumbled out of his truck, he heard that person say he didn’t have insurance, and he was concerned that the owner of the vehicle struck didn’t speak English well and that the other driver might be taking advantage. Others may have simply ignored the matter and went on their way, but Mr. Douglas’ choice to contact police does not suggest some improper purpose or “superhero syndrome.” [ 18 ] I agree with the defence that Mr.

Douglas could not have been travelling at the speed limit and kept within sight of Mr. Maxwell, whose pace was inconsistent but generally speeding. Mr. Douglas admitted in his evidence that while observing the accused’s truck and reporting to 911, he didn’t keep track of his speed on the 404. Mr. Douglas’ central observation that Mr. Maxwell was swerving and unable to maintain a true course within a lane is consistent with the later observations of two police officers and the video record from their in-car cameras.

His observation of the accused’s stumble at the gas station is consistent with the accused’s lack of balance PC MacPherson observed at the roadside. In the context of all of the evidence I find Mr. Douglas was a credible witness and I accept his testimony on the central points. [ 19 ] The evidence of both officers is consistent with the in-car video records in their vehicles. The videos show the accused drive off the roadway onto the shoulder as described and weaving within the lane from that point onward. Seconds later Mr.

Maxwell again weaved over to the right side of the lane then accelerated with further weaving as it drifted again towards the right shoulder line. Staff Sgt Kempster’s video shows the unsteadiness described after the accused exited his vehicle. The officers were sober witnesses acting in a professional capacity. They are trained to make careful observations and they had the benefit of contemporaneous notes and in-car videos to refresh their recollections at trial. Both officers provided direct, responsive, neutral testimony.

I find the evidence of both officers is internally consistent and consistent with the in-car video records. I accept their testimony as credible. [ 20 ] Mr. Maxwell testified in a forthright manner and was responsive to questions from both counsel. However, assessing his evidence in the context of all of the evidence, I find his testimony was not credible. His stated consumption of “two, maybe three” “light” beers along with statements to the effect that he “knows his limit” were plainly meant to convey an impression of minimal drinking.

That evidence is inconsistent with the strong odour of alcohol observed on his breath by the officers after he was stopped, by his problems with balance and movement, and by the many deficiencies in his driving. His description of the police officer’s conduct once he was stopped is contradicted by the video record. Finally, Mr. Maxwell’s evidence that he was aware of his cottage bag directly behind his seat but unaware of the bottle of vodka that was outside the bag in the same position was not credible. A bottle of vodka is a particular, valuable item, unlikely to be forgotten in the manner he described.

As a licensed driver, Mr. Maxwell would pay particular attention to an open bottle of liquor in the car given his liability under the Liquor License Act RSO 1990, c L19 s 32. [ 21 ] Mr. Maxwell hit a parked car at a gas pump. He didn’t see that car when he backed up and he didn’t see Mr. Douglas pumping gas at the adjacent pump. His lack of awareness casts significant doubt on his description of the position of the other vehicle which blames the other driver for his mistake. Mr.

Maxwell admitted he should have been more careful, but that error was but the first in a series of driving errors. [ 22 ] On the 404 highway Mr. Maxwell testified that Mr. Douglas’ vehicle followed him within minutes and maintained high beams and 4 way flashing lights for the whole distance. Mr. Douglas was on the phone with the 911 operator and he was advised that police were going to intercept Mr. Maxwell’s truck. He testified that when he saw the officers on the side of the roadway, he used his 4 way flashers and flashed his high beam lights to indicate to the officers he was the person speaking to 911.

The police officers then pulled in behind Mr. Maxwell and Mr. Douglas dropped back and took the next exit off the 404. It was never suggested to Mr. Douglas in cross-examination that he followed the red pickup truck with high beams and 4 way flashers engaged the entire time. There’s no reason for him to have done that and I find Mr. Maxwell’s evidence on that point isn’t credible. [ 23 ] Even if Mr. Maxwell had noticed 4 way flashers or high beams well before Davis Drive, he was able to see that in his rear view and side mirrors.

There was no reason for him to physically turn around to look back in the dark at the lights of the other car. There was certainly no reason for him to do so repeatedly. Driving in the manner he described, not looking forward to the point where he was unable to stay within his lane, would itself have been dangerous as he admitted, and a significant departure from the minimum standard expected of a driver. Even if he had, for some reason, looked over his shoulder several times that still would not explain the consistent swerving seen by Mr.

Douglas and the officers or the persistence in looking back once he realized he was driving out of his lane. Mr. Maxwell’s evidence on this central point was neither logical nor credible. His evidence that he did not remember the passing-too-close manoeuvre does not detract from the credible evidence of PC MacPherson that showed that further driving error. [ 24 ] Mr. Maxwell said his friend “fought with me” while driving, but he explained that referred to a verbal disagreement about whether or not to take his friend to his house off Green Lane to avoid taking him home to Gormley in a drunken condition.

The disagreement was resolved at the latest by the time they passed Green Lane and continued southbound. There’s no evidence it had any effect on the accused’s driving and could not have related to any of the driving deficiencies observed by the officers after Davis Drive. [ 25 ] Considering all of the deficiencies in the accused’s driving from the gas station onward, the evidence as a whole shows a consistent marked departure from safe driving that posed a risk to others. The evidence including the officer’s observations at the roadside and Mr.

Douglas’ observations together leave only one reasonable conclusion - that Mr. Maxwell’s ability to operate his vehicle was impaired by the effects of alcohol consumption. I can find no credible evidence or circumstance that could reasonably leave a doubt in that regard. Conclusion

[ 26 ] I am unable to accept Mr. Maxwell’s evidence on the central points. I do not find that his testimony leaves a reasonable doubt either alone or in combination with other evidence. Considering all of the evidence as a whole, I am unable to find any credible evidence that could reasonably leave a doubt. The Crown has proved the charge alleged. There will be a finding of guilt. Delivered: December 13, 2019. Justice Joseph F. Kenkel