R. v. MacDougall, 2011 NSPC 7

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. MacDougall, 2011 NSPC 7 Date: 20110126 Docket: 1998231/1998232/1998322 1998227/1998228 Registry: Sydney Between: Her Majesty the Queen v. Eric Devoe MacDougall Judge: The Honorable Judge A.P. Ross Heard: October 27 and 28, December 23, 2010 Written Decision: February 16, 2011 Oral Decision: January 26, 2011 Charges: s. 253(a), s. 253(b), s. 255(3), s. 255(3.1), s. 220 Counsel: Diane McGrath, for the Crown Bill Burchell for the Defense Reasons for Decision [ 1 ] Eric Devoe MacDougall is charged with the following offences.

On or about the 6 th day of December 2008 at or near St.

Anns, Victoria County, Nova Scotia, did while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle and thereby did cause the death of Emily Grace Cardwell contrary to Section 255(3) of the Criminal Code ; And furthermore, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood did while operating a motor vehicle cause an accident resulting in death to Emily Grace Cardwell contrary to section 255(3.1) of the Criminal Code ; And furthermore, did by criminal negligence to wit: by operating a motor vehicle did cause the death of Emily Grace Cardwell contrary to

section 220 (

b) of the Criminal Code ;

And furthermore did having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood did operate a motor vehicle contrary to

section 253 (

b) of the Criminal Code ; And furthermore, did while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle, contrary to

section 253 (

a) of the Criminal Code . A trial was held on these charges in Provincial Court at Baddeck and Sydney, Nova Scotia on October 17, 28 and December 23, 2010. Introduction [ 2 ] An extensive voir dire was conducted pre-trial into the admissibility of certain items of evidence. These were ultimately ruled admissible (for reasons reported at [2010] N.S.J. No. 492 ) and later tendered by the Crown as part of its case. [ 3 ] At the outset of the trial the parties agreed that the evidence heard at the voir dire could apply to the trial.

This is not an agreement that findings of fact at the voir dire would automatically be imported to the trial; however, certain findings on the voir dire remain unaffected by the subsequent trial evidence. By way of introduction to the events in question I will reproduce a portion of the voir dire decision here, being paragraphs 2 and 3 to 15: [2] At 2:40 on the morning of December 6, 2008 Constables Aaron Brown and Jake Foran of the Baddeck detachment of the RCMP were each returning home at the end of a shift when they received a call from an emergency 911 dispatcher.

They were notified of a single-car accident north of the Lobster Galley restaurant, which is on the Cabot Trail in Victoria County, Nova Scotia. Brown picked up Foran in a marked police car. Both were in uniform. Brown had been a member for three years, Foran for three weeks. [4] They arrived at the scene at 2:55. Brown remembers that it was a cool night, that the road had a few slippery patches, that there was no snow or rain, and that there was little to no traffic. He described the highway as “fresh grade new road” as of the previous summer. He agreed that there were some winding sections.

Foran said that the road surface was wet and so although it was an emergency response they did not drive very fast due to conditions. It thus appears that both officers had an opportunity to observe and assess the general road and traffic conditions as they were at the time of the accident. They negotiated the same stretch of highway as had the accused minutes earlier. [5] The police found a green Chev Malibu in the ditch, heavily damaged, apparently from a rollover. No other vehicle was involved. The airbags had deployed; there was blood on them.

They noticed a number of bottles of Keith’s beer inside the vehicle, unopened. Medics were working on a young lady, Emily Cardwell, who was not responsive. The police officers approached a group of bystanders, and noticed one in particular because of an injury to his left elbow. Brown said that the bone was sticking out. The young man was Eric MacDougall. Brown asked “what happened?”. Mr. MacDougall replied that he was going too fast on a turn, hit the shoulder and flipped.

Foran remembers the reply to be that he was going too fast on a turn and hit “loose gravel”. [6] Constable Brown detected a “strong odor of liquor” and glossy eyes. In cross examination he said the smell was “overpowering”. He cited this and the fact that he could see no “outward reason” for the accident as his grounds to arrest the accused for impaired driving. [7] At the time of the arrest, which was 3:00 a.m., Constable Foran was standing about two feet away from his fellow officer, who was face to face with the accused. Foran said he noticed an odor of liquor on the accused’s breath.

He made no mention of the eyes. [8] The accused was given his usual Charter rights. He said he understood. He said he did not want a lawyer, he “just wanted her to be o.k.”. [9] The call which was placed to the 911 operator was recorded and introduced into evidence. Having thus had an opportunity to listen to it I know that at least two if not three people spoke to the dispatcher about the accident, the location, etc. One of them was the accused. He identifies himself and speaks about the condition of Ms.

Cardwell, describing her as being in her twenties, thrown from the vehicle, not responding, breathing heavily, etc. There is a note of fear and concern in his voice. His speech was cogent and his words clearly formed. [10] Ms. Cardwell was taken to hospital in an ambulance. So too was the accused. Brown said he did not make a demand for a breath sample from the accused because it was apparent that he had a compound fracture, and based upon his experience as a police officer, including some first aid training, he believed Mr. MacDougall would have to be checked by a doctor.

He said he did not make a blood demand because the emergency responders were going to take control of the accused, he was unsure how serious the accused’s injuries were, and unsure whether he could comply with a blood demand. He instructed Foran to accompany the accused in the ambulance. Foran did, along with the ambulance attendant Sexton. There was no conversation with the accused en route to the Cape Breton Regional Hospital. No further observations were noted. [11] Foran and the accused arrived at the hospital a few minutes before 4:00 a.m. Foran spoke to Brown by radio.

Brown advised that “the best thing would be to get a blood sample”. Brown himself arrived a few minutes later and it appears was present when Foran read a blood demand to the accused. Brown testified that Foran read the demand “verbatim”. [12] For his

part Constable Foran said he spoke to the accused at the hospital who asked if Ms. Cardwell had died. Foran made inquiries of the nursing staff who said it would be ok to read a blood demand. He did so at 4:06 a.m. “about fifteen minutes” after arriving. It was the usual form of demand. Mr. MacDougall said he understood and agreed to provide samples. Foran testified that he

gave a blood demand because of the accused’s injuries, believing there would be x-rays and other treatment which would consume a lengthy period of time. He said he did not read a blood demand sooner than this because “his (the accused’

s) health had to get higher priority”. [13] Inquiries having been made whether it would be safe to take blood samples, Dr. Heese, the attending physician, who was working the ER that night, did so. Brown had checked that a proper kit was available and sealed the samples in the appropriate containers. Two samples were obtained, at 4:45 and 4:47. I will refer to these hereafter as the “police samples”. Neither officer made any further requests of Dr. Heese. [14] While having little memory of the events of that night, Dr.

Theresa Heese testified to the fact that she was the attending physician who drew blood from the accused. She said a blood sample was taken for medical purposes. It is clear she was referring to a sample over and above those taken at the behest of the police. This additional sample was subsequently seized by police pursuant to warrant. I will refer to it hereafter as the “hospital sample”. [15] Dr. Heese indicated that even in the case of a fractured elbow there was a concern about internal injuries that may not have been evident from Mr. MacDougall’s appearance.

She said seriously injured people may not have a mark on them. She knew he had been in a car accident. She stated that blood loss and internal damage were possible. She said the trauma guidelines call for taking a blood sample in such circumstances, particularly where there was serious injury to another person in the same motor vehicle. The sample is analyzed for the presence of intoxicants, which can mask pain. This is one part of “a panel of lab work” which, on her evidence, assists in proper treatment. Her evidence was uncontradicted on these points.

She has done emergency medicine since 1994. [ 4 ] A further account of events, from the perspective of the occupants of the vehicle and certain other witnesses, emerged at trial. [ 5 ] The accused attended a house party in Baddeck on the evening of December 5 th , 2008. Mr. MacDougall’s first cousin, Brennan Myatt and Mr. Myatts best friend, Chad MacInnis were also there. [ 6 ] An ex-girlfriend of Mr. Myatt, referred to as Kristan, apparently asked Mr. MacDougall to drive her home. Mr. MacDougall obliged. Mr. MacInnis and Mr. Myatt went along for the ride.

They went from Baddeck to the Cabot Trail and then north to the vicinity of Wreck Cove where they dropped Kristen off. Returning south they came upon Emily Cardwell whose car had broken down near the intersection of the Cabot Trail and the Trans Canada highway. Mr. MacDougall stopped to help. He looked under the hood but his efforts to start the vehicle were unsuccessful. Ms. Cardwell said she was headed to Goose Cove, and Mr. MacDougall offered to drive her there. This entailed driving northerly on the Cabot Trail around St. Ann’s Bay. As they set out Mr. MacInnis was in the front passenger seat.

Behind him in the rear was Mr. Myatt. Ms. Cardwell was seated behind the driver. Between the spot where he encountered Ms. Cardwell and their destination MacDougall lost control of the vehicle. Ms. Cardwell was ejected and killed. [ 7 ] Chad MacInnis had come to Baddeck from the mainland for the party. He said he arrived around 8:00 p.m., having had a few beers beforehand, but none afterwards. He did not notice whether Mr. MacDougall drank any alcoholic beverages at the party. When Mr. MacDougall offered to drive Kristen home, Mr. Myatt and Mr. MacInnis went along for the ride. According to Mr.

MacInnis nobody drank during the drive. He seemed unclear about exactly where they went or how long it took to get there. He acknowledged blacking out after they picked up Ms. Cardwell and waking only after the crash. He remembers Mr. MacDougall “driving over the speed limit because of the way he was taking the turns.” The road, he said, “was winding, turn after turn.” [ 8 ] Of Mr. MacDougall, Chad MacInnis said “he appeared sober to me.” He claimed he would not have driven with anyone who was drinking. These comments deserve little weight. It is clear that Mr. MacInnis was quite intoxicated. According to Mr.

Myatt, who is possessed of a better memory of the events than Mr. MacInnis, Chad had a beer just before setting out and also drank beer during the drive. He did not leave the car, as the other two did, to help Ms. Cardwell at the roadside. Upon waking after the crash he seemed unaware of what had happened. [ 9 ] Brennan Myatt said that he wasn’t drinking at the party though others were. He remembers seeing Mr. MacDougall have one beer around 8:00 p.m. but said he did not drink in the car. He said the drive to Kristen’s took from 45 to 60 minutes, which seems a reasonable estimation.

They took a case of beer from the deck of the cabin where Kirsten was dropped off. Chad drank one of these en route back to Baddeck. He recognized Ms. Cardwell from work when they stopped to assist. [ 10 ] After Ms. Cardwell got in the vehicle, he said they drove for about eight minutes “when the car rolled.” He said the accused was taking the turns “a little fast”. He had Ms. Cardwell’s dog on his lap. He called 911 no more than a minute after the crash but handed the phone over to the accused who stayed on the line and with Ms. Cardwell, for about 30 to 40 minutes, until help arrived. [ 11 ] Mr.

Myatt is a first cousin of the accused and said they were “close”. He had seen Mr. MacDougall intoxicated on previous occasions but of this night he said “I believe he was not intoxicated” and that “he seemed sober to me.” He explained the crash by saying that the accused was going a little fast on a turn, tried to correct, cut the wheel, the rear tire hit the shoulder, the vehicle “slid out and rolled.” Up to that point he did not notice anything unusual about his driving. One of the bottles from the case broke in the crash and covered Mr. Myatt’s jacket in beer.

He eventually gave this jacket to the accused when he noticed his broken arm; undoubtedly it would have smelled strongly of beer when police approached him a short time later. [ 12 ] Paramedics who attended the scene made various observations. Travis MacNeil approached Mr. MacDougall to inquire about his injuries. Mr. MacDougall was in pain from a compound fracture to his left arm, a bruised hip and a puncture wound under his

armpit. According to Mr. MacNeil the accused did not seem concerned about the gravity of the situation, but given that he was likely inshock this is not surprising. Mr. MacNeil noticed smell of alcoholic beverage from the breath of the accused, who said that he’d hadeight beers over the course of the evening. Mr. Caldwell, who seems not to have had as much contact with the accused, but who wasnevertheless within three feet of him, said that he did not notice any odor of alcohol nor any signs of impairment. Mr. Sexton had thebriefest contact with the accused; he did not notice any signs of impairment.

Neither did Ms. Ivany notice any smell of alcohol from him. [13] Lorraine Bona was a first responder who lived near the crash scene. She described the road as winding and bumpy, but said thatit had been re-done up to the scene of the rollover. This corresponds to testimony of the police, and of Mr. Thomas who said it had beenrecently repaved. Taken together with photos of the scene, it is clear that the road over which Mr. MacDougall had driven after pickingup Ms. Cardwell had been recently reconstructed. [14] Mr. Thomas happened upon the scene shortly after the crash, and before the ambulances arrived.

He saw the car off the road,nose pointing out, Mr. MacInnis still seated in it. Fifty feet further down the road was Ms. Cardwell, with Mr. MacDougall and Mr.Myatt attending her. He said the turn which Mr. MacDougall had failed to navigate was “kind of tricky”, that it came up suddenly. There were no “positive signs” of impairment that he could detect. He said that Mr.

MacDougall “seemed to be the one dealing with thesituation . . . trying to take responsibility . . . engaged in what was happening.” The time of driving [15] The time of the incident is not an essential element of the offence, but it has a bearing on the extrapolation of blood alcoholconcentration (BAC) from the time of sampling at the hospital to the time of driving on the highway. [16] While the exact time of the crash cannot be determined on the available evidence, experts on both sides have used 2:24 a.m. asthe time the vehicle left the road.

This time appears to be a good estimation and thus a good foundation for their opinions. Besides this,there is trial evidence to the effect that the 911 call was placed within a minute or two of the accident. Given the police response timethis points to a conclusion that the crash could not have been later than 2:40 a.m. The opinion evidence addresses that time as well. [17] The longer the interval between driving and sample, the higher will be the extrapolated blood alcohol level at the time ofdriving. This is so because alcohol is continuously being metabolized and thus “eliminated” from the body.

As will be seen, however,the expert witnesses also extrapolated blood alcohol concentration to 2:40 a.m. on the basis that this is the latest possible time of driving. On a consideration of all the evidence at voir dire and trial I find that the driving was indeed no later than 2:40 a.m. I note any earliertime, be it 2:24 a.m. or some other, would have even more serious implications for the accused. The hospital’s blood analysis [18] Defense has questioned whether reliance can be placed on the blood analysis performed at the hospital.

What I have referred toabove as the police samples were analyzed at the RCMP laboratory. The hospital sample, taken for treatment purposes, was analyzed onequipment at the hospital itself and the results procured by search warrant at a later date. These do not benefit from the

definitions of“approved containers” and so forth which are contained in s.258 of the Criminal Code. And because the hospital samples were notprocessed by an “analyst” designated by law the results of analysis are not made evidence by force of s.258(e). The reliability of thehospital analysis must be founded in evidence presented at trial. As noted in R. v. Delorey 2004 NSCA 95 , [2004] N.S.J.No.297 (NSCA) at para.17 “there is no statutory presumption of reliability”.

Defence argues that because the Crown did not call theperson who actually performed the analysis of the hospital sample there is insufficient proof of the result. If this is so, it hasimplications for the weight to be given to the expert opinion. [19] In the Delorey case the Crown called the medical technologist who had operated the instrument in the hospital. He testified tothe name of the device, the fact that he was trained to operate it, and that he had used in regularly. He also explained the controlprocedures which accompany the tests.

In the case before me I do not have such evidence, but I conclude nevertheless, on the all theevidence, that the analysis at the hospital has produced an accurate result upon which the expert witnesses could properly place reliancein forming their opinions about blood alcohol levels at the time of driving. I arrive at this conclusion for the following reasons. [20] Erin MacLeod was a lab assistant working at the Cape Breton Regional Hospital the night Mr. MacDougall came in fortreatment. She was given a requisition to collect blood samples.

Information had already been entered on the hospital’s computerizedrecord system. She took the requisitions to Mr. MacDougall’s bedside and checked to see that the requisitions matched the personalidentification on the bracelet which he had been given upon admittance. She cleaned the site with water, inserted the needle, and took anumber of samples in what she called “tubes”. The requisition stickers were placed on the tubes, and she wrote the time of collection onthe tubes, and her name, and initialed them. She then walked the samples to the hospital laboratory for analysis. [21] Ms.

MacLeod seemed to have a very clear recollection of these events. She recalls having to try a second time to get a vein. Sherecalls leaving the needle in his arm as Dr. Heese entered to get the police samples - until the doctor “got hands in”. She thenremembers the doctor attaching the tubes (Constable Brown referred to them as “vials”) and collecting the two police samples. Sheestimated the total time she spent procuring blood to be 15 to 20 minutes, and the time on the hospital report of 4:45 to be anapproximation of the half-way point in her procedure.

The time of collection is what matters, not the time of analysis. Once blood isextracted from the body, the alcohol it contains is no longer being metabolized.

[ 22 ] Keith Ferguson was the manager of the biochemistry

section of the hospital on the date in question. He did not personally perform any of the collection or analysis on the night in question, but did give evidence about the hospital systems by which such samples are collected and analyzed. He described how patient data is entered into the hospital system, how labels are generated which include barcodes, how the labels are marked by persons performing collection and analysis, and how these constitute unique identifiers for the specimen. His description of how the processes normally unfold accords completely with the evidence of Ms. MacLeod.

While he did not describe or name the instrument which performed the analysis of Mr. MacDougall’s blood, nor the name of the person in the lab who performed the analysis, nor describe the particular training such person had, he did describe in general terms the manner in which such samples are prepared for analysis. He described the instrument as a “black box type”, an “automated analyzer” which accepts the container and sends the result to a computer screen.

While acknowledging that no process is perfect, he said that the equipment logs were reviewed daily by staff at the lab and that all staff performing such functions have the ability to do so. [ 23 ] The Cape Breton Regional Hospital is a large, modern, functioning, accredited facility providing care to thousands of people every year. Results of blood work, including results of blood alcohol levels, are relied upon by trained personnel to make critical decisions regarding the health care of its patients. There are internal quality control processes in such institutions, some of which were alluded to by Mr.

Ferguson. Laboratory technologists are not recruited from the nearest street corner. In my view there are circumstantial guarantees of trustworthiness and reliability sufficient for me to give credence to these results. [ 24 ] Defense has cited the case of R. v. Doerksen [2009] A.J. No. 850 . The judge there said that the evidentiary principle arising out of Ares v. Venner did not avail the Crown. He appears to have applied the criminal burden of proof to an individual piece of evidence. A

summary conviction appeals court in Nova Scotia considered hospital records similar to those under discussion here in the case R. v. Landry [2006] N.S.J. No .66. There the person who operated the analyzer in the hospital testified at trial. However, the court’s ruling appears also to be that the documents in question were admissible in and of themselves. This is set out at paragraphs 22 et seq . [ 25 ] My decision in this regard is further bolstered by the fact that the results obtained by the hospital and the results obtained at the RCMP lab are consistent with one another.

The hospital analysis is supported by independent analysis done elsewhere. This correspondence is not exact, because of the different methods used. Beyond the fact that the hospital results are expressed by molecular weight rather than percent by volume, the hospital analysis is done only on the blood serum, not the “whole blood” which the RCMP takes as its measure. Conversion of one to the other gives a range of values. Conversion of the hospital sample in this particular case gives a resulting range of 89 to 106 milligrams percent.

The RCMP analysis was 89 milligrams percent. [ 26 ] I am also satisfied that continuity and identification of the hospital sample was maintained throughout, from collection to analysis to the recording of the result. The document obtained by police pursuant to the warrant was supplied under cover of a letter vouching for its authenticity, and the evidence of Ms. MacLeod and Mr. Ferguson confirms this. The time of collection [ 27 ] Defense questioned how the collection time of 4:45 could be the same for all the samples, police and hospital alike.

It the strictest sense the samples could not all be procured at the same time, but given Ms. MacLeod’s explanation of how she arrived at her time of collection and the fact that Dr. Heese took the police samples immediately afterwards, using the same needle, I consider this time to be sufficiently reliable as a baseline for the extrapolations done by the expert witnesses. That being said, the expert witnesses again did an extrapolation using a still earlier collection time, i.e. 4:35 a.m.

As with the possible time of driving the use of this time as an outside limit results in a shorter interval between the driving and the blood sampling and a result more favourable to the accused. Reasoning in similar fashion to the time of driving, I find that the time the blood samples were taken was no earlier than 4:35 a.m. [ 28 ] In short, the expert witnesses prepared opinions based on certain assumptions. Assumptions must be borne out by the evidence at trial before the court can give weight to the opinion. The experts calculated a range of values for the accused’s BAC.

In making the above findings respecting times I am giving effect to the ends of the range most favourable to the accused. Further discussion of the expert opinions and my findings regarding BAC follow later in these reasons. Other evidence, reports and certificates [ 29 ] A collision analyst report done by Cpl. MacDonald describes the road as “paved with nearly new asphalt without any obvious defects - newly constructed gravel shoulders - ditches on each side.” The pavement is 7.70 meters wide at the crash scene. There is no lighting. The road is level. The center line is solid double yellow.

Having attended the scene at 4:40 a.m. he concluded that weather was not a factor and the roadway was dry. There were no visible tire marks on the pavement, but two tire marks could be seen in the gravel shoulder showing a vehicle sliding sideways, then entering the ditch. While he could not make any conclusions about the speed of the vehicle, he noted that it crossed over the center line at a turn, entered the ditch and rolled several times. This led him to say that “excessive speed was a factor in this crash.” After hitting a culvert the vehicle came back up onto the road, coming to rest on its wheels.

The vehicle rolled for 41 meters, sustaining heavy damage. Airbags were activated. Ms. Cardwell, who was not wearing a seatbelt, was ejected. Her body was found 17.5 meters from the final resting place of the vehicle. [ 30 ] Photographs of the crash scene show the approach to the turn, the turn itself, and the area where the vehicle came to rest. There is no warning sign before the turn, but it does not appear to be such a sharp turn as to require one.

Rather, it appears rather typical of a turn one would encounter on the Cabot Trail or on other rural routes in Cape Breton. [ 31 ] An mechanical inspection of the vehicle, a 1999 Chev Malibu, conducted after the incident, shows that the vehicle was in proper

working order, with good brakes, functioning seat belts, and four studded tires “in excellent shape.” [ 32 ] The medical examiner’s report concluded that Ms. Cardwell, who died six days later in hospital, suffered blunt force injury to the head and died of trauma. It indicates that she was unrestrained, ejected when the car rolled, and suffered a fatal injury to the brain. She tested negative for drugs and alcohol. [ 33 ] There is a legal requirement that the samples be taken only where the Dr. is satisfied this would not endanger the health of the person.

Defense argues this was not proven, but the foregoing Certificate supplies evidence of this and there is no other trial evidence to contradict it. Defense has also questioned the reliance which should be placed on the Certificate of Qualified Medical Practitioner. This document speaks to the police samples. It was signed by Dr. Heese at the request of the RCMP a number of days after the samples were actually taken. The certificate is a commonly used method, again sanctioned by s.258 , by which the Crown may establish the date and time blood samples are taken, how they were marked, etc.

By consenting to the admission of this document in evidence defense acknowledged that it constituted prime facie evidence of the facts stated in it. I have considered other evidence in the case which might bear on accuracy and reliability and it is my conclusion that there is no evidence which would cast any significant doubt on the stated facts, including the collection time. [ 34 ] Constable Bernard obtained some identification evidence from the accused on January 29 th , 2009. He was photographed and fingerprinted. Measurements were also taken. Mr. MacDougall weighed 142.6 pounds. He was 171 cm. in height.

The expert evidence - extrapolation [ 35 ] Both Crown and Defense called an expert witness. They have different levels of experience and training. The Crown expert finished her education in 2008 and is currently employed as a forensic specialist in the toxicology

section of the RCMP. The defense witness has had an extensive career, possesses a Ph.D., and has published widely (although the most recent of these is in 1989). He is retired, as of 2001, from the position of assistant professor in the Department of Pharmacology at Dalhousie University. [ 36 ] Each expert gave an opinion about the amount of alcohol in Mr. MacDougall’s blood. Each used the same baseline data. Each discussed what levels of blood alcohol lead to impairment and offered an opinion as to whether the accused was impaired at the time of the crash.

I will include a consideration of the latter aspect of their evidence when I turn to the issues of impairment and causation. The experts each extrapolated the blood alcohol levels from the time of sampling back to the time of driving, and arrived at very similar results. They diverge in their opinions as to whether Mr. MacDougall was impaired by the level of alcohol so determined. [ 37 ] The opinions of experts are not theirs alone, in the sense that they personally have conducted every test, performed every measurement and interpreted every result which leads to their conclusion.

Experts are themselves informed by the work of other reputable scientists in their field. Science proceeds by the accretion of knowledge. So long as an expert is qualified to read and interpret the work of others he or she may bring to a trial not just a narrowly circumscribed personal opinion, but a more broadly based opinion arising not only from their own work but also from an informed awareness of the work of others. [ 38 ] Each expert filed a written report and gave testimony. Each was challenged in cross-examination.

I will not delve into their evidence at great length; rather, I will focus on their conclusions. [ 39 ] Josette Hackett, the Crown’s expert, after explaining the theory and assumptions underlying her extrapolations, calculated firstly that by using the results of analysis of the police samples the accused’s blood alcohol concentration at the time of the incident would have been between 113 and 137 mg.%. The Criminal Code sets the legal limit at 80 mg.% ( 80 milligrams of alcohol in 100 millilitres of blood).

Secondly she calculated the BAC as falling between 113 and 154 mg.%, using the results from the hospital sample. I note that her assumptions, particularly that the accused did not drink alcoholic beverage in the 30 minutes preceding the incident nor afterwards, are well-founded in the evidence. [ 40 ] The foregoing range of values was based on an interval of 2 hours and 21 minutes after the incident (2:24 as time of crash, 4:45 as time of sampling).

She went on to calculate the BAC assuming that the crash had occurred at 2:40 and the sampling at 4:35, these being the times which, making a shorter interval, would give the most favourable result to the accused. (I have found, for reasons given earlier, that the latter times are indeed the latest and earliest, respectively, which emerge from the evidence at trial) The result for the police sample was a BAC in the range of 108 to 127 mg.%. The same calculation done on the hospital sample gave her a range of 108 to 144 mg.%.

On the evidence at trial it is not reasonably possible that the interval between driving and sampling could be less than 1 hour 55 minutes. Her conclusion, therefore, that 108 mg% is the lowest the accused’s blood alcohol concentration could have been at the time of the crash, is well founded. [ 41 ] Dr. Gerald MacKenzie, the defense expert, also filed a written report, but he adjusted his calculations slightly in court when he learned that the hospital analysis had been done on blood serum, not whole blood.

He also modified his opinion somewhat after a court ruling that a departure below the generally accepted elimination rate (because of the trauma suffered) was not justified on the basis of the studies he cited. He seemed to arrive at a conclusion that Mr. MacDougall’s BAC was, at a minimum, 109 mg%. He also noted that the BAC would have been falling at the relevant time, a factor which he believes is important in evaluating whether an individual is impaired at a given BAC. I conclude that 108 mg% is the lowest the accused’s blood alcohol concentration could have been at the time of the crash.

There is no reasonable basis on which to conclude that it was lower. One cannot safely conclude that it was higher. This finding will inform my

decision on of the issue of impairment. The 253(

a) charge - impairment [42] Mr. MacDougall has been charged with multiple offences. These are defined in the Criminal Code in the following terms: 253(1)(a) – everyone commits an offence who operates a motor vehicle . . . while the person’s ability to operate the vehicle . . . isimpaired by alcohol . . . 253(1) (b) – everyone commits an offence who operates a motor vehicle . . . having consumed alcohol in such a quantity that theconcentration in the person’s blood exceeds 80 mg. in 100 ml. 255(3) – everyone who commits an offence under s.253(1)(

a) and causes the death of another person as a result is guilty of an indictableoffence 255(3.1) - everyone who, while committing an offence under s.253(1)(b) – (driving with blood alcohol over 80 mg.%) – causes anaccident resulting in the death of another person is guilty of an indictable offence. 220 – everyone who by criminal negligence causes death to another person is guilty of an indictable offence [43] I am going to discuss the impaired driving charge first. The court’s task is to determine whether the evidence proves eachconstituent element of the offence beyond a reasonable doubt.

There is no issue about the identity of the accused or the fact that he wasdriving. The only issue here demanding consideration on the s.253(1) (

a) charge is the central issue of impairment. [44] The test for impairment is a legal one, but in its application the court may properly take account of expert opinion. Both experts,Crown and defense, work in the field of toxicology and have relevant, though differing views on whether a given level of blood alcoholnecessarily leads to impairment of one’s ability to operate a motor vehicle.

Ultimately the conclusion on impairment is for the court. [45] The offence of impaired driving is made out if the evidence establishes, on the criminal burden of proof, any degree ofimpairment of the accused’s ability to operate a motor vehicle, ranging from slight to great. This is the ratio of R. v. Stellato, a decisionof the Ontario Court of Appeal at (ON CA), [1993 O.J. 18, endorsed by the Supreme Court of Canada at (SCC), [1994] S.C.J. No. 51. A subsequent decision in the Alberta Court of Appeal, R. v.

Andrews, points out that impairment mustrelate to ability to operate a motor vehicle – a trial court should not consider impairment or intoxication in the abstract, or solely byreference to the ability to perform other tasks. Opinion evidence on impairment [46] The question arises: at what level of blood alcohol can it be said unequivocally that a person is impaired in his or her ability tooperate a motor vehicle? Dr. MacKenzie was firmly of the view that it is only at levels of 120 or higher that everyone, withoutexception, is so impaired. He named other toxicologists who shared this position.

Acknowledging that there are varying degrees ofimpairment he distinguished between slight deficits in psychomotor skills which might impair one’s ability to perform a certain task ortest and the more significant deficits which must obtain before the ability to drive is impaired. He said that one finds impairment ofdriving ability only when psychomotor skills are “profoundly disrupted.” As clinical support for this view he cited studies in whichyoung people between the ages of 18 and 25 were tested on a closed driving course at varying degrees of impairment.

He said thesestudies showed that a significant number of test subjects could drive the course properly at blood alcohol levels of 120. He said that aBAC of 109 is a “substantially high level – most people would show gross signs of impairment” But given the other evidence availableto him – the accounts of the passengers and first responders, the demeanor of Mr. MacDougall on the 911 call, etc. – it was hisconclusion that Mr. MacDougall’s driving ability was not impaired. As to the likelihood that the accused was speeding, he said speedingwas “a daily event.” [47] Some aspects of Dr.

MacKenzie’s testimony are difficult to reconcile. For instance, he acknowledged that the accused “shouldhave” been showing signs of intoxication at a BAC of 109, yet points to the absence of such signs to suggest that the BAC may havebeen under 109, and points to the absence of such signs to conclude that he was not legally impaired. Possibly he is saying that Mr.MacDougall is in a small minority of the population who can safely operate a motor vehicle with this much alcohol in his system.

How aperson performs on a closed driving course, however, cannot automatically be transposed to actual driving on a public highway,particularly where there are potential distractions to the driver. A driver on a course will focus exclusively on the specific challenges thecourse presents, on the tasks associated with navigating it safely. Mr. MacDougall had other things to think about and deal with on thenight in question. One must consider whether, at the time of the crash, he was sufficiently focused on the operation of the motorvehicle. [48] In a general sense, Dr.

MacKenzie seemed concerned with those aspects of the evidence most favourable to his opinion, andseemed to take too narrow a view of what is entailed in operating a motor vehicle on a public highway. He said that other things besidesimpairment could account for the crash, including the speeding, the presence of the other young people, the curves in the road, thedarkness, momentary inattention, etc. Such things, however, just beg more questions. I will return to them later. [49] One aspect of Dr. MacKenzie’s opinion involved the differing degrees of impairment found in the rising and falling phases of the

BAC. A given pattern of drinking will result in a gradual increase of blood alcohol, a peak level, and then a gradual decline oncedrinking has ceased. He points to numerous studies which show that for a given BAC the impairment of one’s performance is greater inthe rising phase (absorption phase), when alcohol levels are on the way up, than for the falling phase (elimination phase) when levels arefalling. He concludes, and I agree, that the accused’s BAC was falling at the time of the crash. Possibly Mr. MacDougall would havedisplayed more impairment if his levels were rising rather than falling.

Be that as it may, Mr. MacDougall’s BAC was 109. This is quitea high level, the significance of which outweighs, in my view, the fact that it occurred in the elimination phase. [50] In the opinion of Josette Hackett everyone’s ability to operate a motor vehicle is impaired at a BAC of 100 mg%. She claimedthat this was the generally accepted opinion of her peers and the medical community. She went into somewhat more detail than did Dr.MacKenzie on the particular ways that alcohol affects driving-related tasks (which is not to say that Dr. MacKenzie is unaware of these).

She explained that alcohol affects not only motor coordination but visual acuity. Glare recovery and depth perception are reduced. Itbecomes harder to see dim objects. A driver can get “tunnel vision”. She also explained that alcohol consumption can affect judgmentand the processing of information. It thus may take more time to interpret sensory data, and the person may utilize fewer sources ofinformation than when sober. Driving requires attention to a number of things and a driver must do a number of tasks simultaneously,but an impaired driver will often focus on one aspect while neglecting others. [51] Ms.

Hackett’s position came under attack from the defense who suggested that it was influenced by the fact that she is an RCMPemployee and would therefore draw the line for impairment at a lower level. She acknowledged that she herself had not conducted anydriving sobriety tests, but she had studied standardized tests done by others. [52] Both experts mentioned that person’s experience with drinking, and their experience with driving, might influence the degree ofimpairment of driving ability, or the extent to which impairment is exhibited.

Having little to no evidence about either Mr.MacDougall’s drinking habits or his experience or skill as a driver, these have little bearing on the case at hand. Discussion on impairment [53] The following propositions may all be true: (1) that a sober person might, as a result of excessive speed or inattention, fail tonegotiate the particular turn where this fatal crash occurred, leading to the same tragic result (2) that some impaired drivers pose less riskto public safety than certain sober drivers who drive recklessly, or just poorly, and (3) that Mr.

MacDougall, even at a BAC of 109 mg%had the capability of driving more safely than some other licensed, sober drivers in Nova Scotia. However none of these logicallypreclude the proposition that Mr. MacDougall’s ability to drive was impaired by alcohol within the meaning of section 253(1)(

a) of theCriminal Code. [54] A comparison of driving ability may fairly be made in terms of the individual, i.e. was his ability to drive impaired incomparison to his ability when sober? As well, his ability may be assessed by comparison with the abilities of others with similar bloodalcohol levels, as the experts have done. [55] I have considered the evidence from the various sources, noted above, which suggests that Mr. MacDougall did not display signsof impairment.

Some of the observations were made by people in the car who would naturally have sympathy for the accused and whomay therefore hope to minimize the extent of his culpability. One of these, Mr. MacInnis, was himself so intoxicated that I am unable toput much weight on his evidence for this reason alone. Certain others who arrived at the crash scene did not have particularly closecontact with Mr. MacDougall or had other purposes in mind besides assessing the extent of his sobriety. Mr.

MacDougall’s demeanorafter the crash shows a person aware of the situation, dealing with 911 operators and others in an effective manner, able to speak clearlyand act appropriately. One remembers, however, that at this point he found himself in very different circumstances than pertainedshortly before, and called for somewhat different skills and abilities than did driving. The mental shock, the physical trauma, and theawareness of Ms. Cardwell’s precarious state all would have had some effect on his behavior. [56] Following the reasoning in R. v. Rhyason 2006 ABCA 367 , [2006] A.J. No. 1498 (Alta.

C.A.) where there is noevidence to suggest an extraneous cause for a traffic accident the trial judge may take account of the circumstances of the accident indeciding the issue of impairment. This is a common sense approach. At paragraphs 29 to 40 the court discussed the tests forimpairment (and also for causation – an issue which arises later in these reasons) [57] In this case there was nothing wrong with the vehicle. There was no equipment failure. Nothing such as an animal or anothervehicle forced the accused to take evasive action. Nothing impeded his view of the road.

No passenger did anything which caused himto lose control. [58] Although the Cabot Trail at St. Ann’s Bay is a winding stretch of highway, Mr. MacDougall had just driven a portion of theCabot Trail in order to take another person home, and thus would have been familiar with the general nature of the road. The particularturn where he lost control is not especially sharp, as appears from the photographs. There are certainly much sharper turns on the CabotTrail and on secondary roads around Washabuck, where Mr. MacDougall hails from, and elsewhere in Cape Breton. Further, the roadhad recently been improved.

The pavement there was in good shape, with a level grade, freshly painted lines and ample shoulders. Therewas some mention of the pavement being wet, but no indication that it was raining, or that water had pooled anywhere. He wasoperating his own vehicle and thus taken to know how it drove. [59] Mr. Myatt said that the accused was taking the turns a little fast. One witness said it was “turn after turn”. Given the obviousspeed with which Mr. MacDougall went into the crash scene, these previous turns did not make the impression one would hope to see ina prudent driver.

Occupants of the car describe a pattern of speeding, not just speeding at that particular time and place. This too pointsto carelessness, to risk-taking.

[60] Mr. MacDougall said to a paramedic that he’d had eight beer in the course of the evening. One cannot know whether this isprecisely true, but it is an admission that he consumed a significant quantity of alcoholic beverage, and then got behind the wheel of acar. He had one highly intoxicated passenger in the front seat, who had no real reason for being there except as company. At theirdestination they stole a case of beer. Mr. MacDougall was prepared to take this into his vehicle, and apparently tolerated Mr. MacInnisdrinking from it as they returned.

His kindness in picking up a stranger to drive her home was not matched by a consideration for hersafety once she got in the vehicle. [61] More significant still is the fact, established scientifically, that his blood alcohol concentration was at least 108 mg%. This alonepoints to impairment of his driving ability. Here I incline to the position of Ms. Hackett that a person is impaired at 100, no matter what,no matter whom.

However the decision on impairment does not rely on this alone, given the other corroborating evidence noted above. [62] There are two laws which, in my view, are relevant to a determination of impairment in this case, and in every case where drivingis concerned. Firstly, provincial law requires that every driver of a motor vehicle on a public highway operate in a careful and prudentmanner. Highway users are explicitly required to observe a certain standard of conduct. [63] Secondly, Parliament has set 80 mg% BAC as the legal limit beyond which one commits a crime to operate a motor vehicle on ahighway.

It has done this for an obvious purpose. Impairment may occur at a lower BAC, if for instance a person is exceedingly tired ortaking a medication with which alcohol interacts. And it follows from Ms. Hackett’s opinion that everyone is impaired to drive at 100that there are some who may not be impaired at 80 or 90. Impairment is a continuum, no doubt. But the legislative fact that Parliamenthas chosen 80 mg% as the legal limit, and the adjudicative fact that Mr. MacDougall was nearly 30 mg% over this limit, is a correlationwhich cannot be ignored.

A decision on impairment is based both in law and in fact. [64] I conclude from Mr. MacDougall’s driving conduct, from the circumstances of the crash and from his blood alcohol level that hewas driving while his ability to operate a motor vehicle was impaired by alcohol within the meaning of s.253(1)(a). The evidence at trialsuffices to prove this beyond a reasonable doubt, and he is found guilty on this charge. The 255(3) charge - causation [65] Having concluded that the accused was driving while impaired, I will now turn to the charge under s. 255(3).

In particular I willconsider whether his driving while impaired caused the death of Ms. Cardwell. [66] The immediate cause of Ms. Cardwell’s death was trauma, including injury to her brain. That was caused by being ejected froma rolling vehicle. That in turn was caused by the vehicle going sideways on the gravel shoulder opposite its direction of travel. This wascaused by the driver losing control of the vehicle on a turn, excessive speed being a factor in this. In the chain of events we are now atthe point where one must ask whether Mr. MacDougall’s impairment caused the loss of control.

If it did, it caused the death of Ms.Cardwell. Other things may have played a role; for instance, had she been seated elsewhere in the vehicle she may not have beenejected. A number of factors may have acted in tandem to cause her death. But it is the actions of the driver which loom largest of allthe things that happened that fateful night. It is those, needless to say, which are the subject matter of the charge under s.255(3). [67] The law here is well settled.

There must be evidence sufficient to demonstrate beyond a reasonable doubt that the accused’simpaired driving ability was at least a contributing cause of death – which is to say, in this case, that it was a contributing cause of hislosing of control of the vehicle at the turn. [68] The mere juxtaposition of impairment and death in the sequence of events does not suffice to prove that the impairment causedthe death (see, for example, R. v. Brogan 2008 NSPC 42 , [2008] N.S.J. No. 313; R. v. Fisher [1992] B.C.J. 721 (BCCA) [69] Various cases were submitted for consideration.

Exact comparisons are impossible to find. Causation is very fact-dependant. InR. v. White 1994 NSCA 77 , 130 N.S.R. (2d) 143 (NSCA) the court found that the trial judge had erred in not finding a causalconnection on facts roughly similar to those in the present case. In R. v. LaPrise (QC CA), 113 C.C.C. (3d) 87 (Que.C.A.) a cause other than impairment clearly emerged from the trial evidence. In R. v. A.L.E. 2009 SKCA 65 , 256 C.C.C. (3d)476 (Sask.

C.A.) there was no BAC measurement, the evidence for impairment being solely that of demeanor and driving conduct. [70] As with impairment, the circumstances of the crash can be considered on the issue of causation. This may seem like circularreasoning – using the circumstances to show impairment, then using the impairment to explain the circumstances (and hence the death). But it is inevitable that the two issues would be intertwined, given the facts of this case, and that certain evidence would be germane toboth. In this regard I refer again to Rhyason, above. Had Mr.

MacDougall been the only occupant, I would be considering only thes.253 charges. Regrettably his actions had consequences for others besides himself. [71] I will again cite an extract from the voir dire decision. Although I was there addressing the presence of grounds for a demand, itbears on this issue under consideration here. This requires a consideration of what “unexplained” means. Here defense argues that Mr. MacDougall gave an explanation of the crashby saying that he was going too fast on the turn, hit the shoulder / loose gravel, and lost control.

But does this explain why he was goingso fast, among other things? A driver has control of a motor vehicle. It is obvious that even the most cautious and careful driver may have an accident - brakes mayfail, another vehicle may suddenly cross it’s path, the person may suffer a heart attack, etc. This, I think, is the sort of “explanation”which might negate the importance of an “accident” in the formulation of reasonable and probable grounds, because these are things

which truly are accidental. They are beyond the control of the driver. Had Mr. MacDougall been forced off the road by an oncoming vehicle, swerved to avoid a deer on the road or had a steering failure I would be more inclined to discount the crash as a reasonable ground for the blood demand. But his explanation just begs more questions, such why he was going the speed he was, whether there was inattention to the turn in the road, an so forth. His explanation does not discount the likelihood that his own inattention or carelessness played a role.

Coupled with other observations made by the police, it was reasonable for them to consider whether alcohol consumption had impaired his ability to focus on his driving, or disinhibited him from driving at a prudent speed. Mr. MacDougall is a seemingly healthy young man, with no obvious frailties or infirmities. From what police observed at the scene, and having heard from Mr. MacDougall, they came to a reasonable belief that there were no external causative factors for the vehicle crash. It is in this sense that it was “unexplained”. I think this is what was meant by use of the term in most previous cases.

It is in this sense that such circumstances may appropriately be considered as part of the grounds for a breath or blood demand. [ 72 ] As noted above in the discussion about impairment, the evidence discloses no external causative factors for the crash. There is nothing to suggest that one of the others in the vehicle interfered with Mr. MacDougall in any way. There was nothing on the highway which he had to avoid or which caused him to lose control.

Without repeating what has already been said about the circumstances of the crash and the behavior of the accused as driver in the short time before, I will simply say that I am convinced beyond a reasonable doubt that Mr. MacDougall’s impairment accounts in a significant way for how he was driving at that time. It was a contributing cause of the crash and hence of the death of Emily Cardwell. [ 73 ] Accordingly, I find the accused guilty on the s.255(3) charge. Disposition of the remaining charges [ 74 ] With respect to the s.253(1) (

b) charge, there is ample evidence that the accused’s BAC was over 80; the evidence supports a finding of guilty. However, given the conviction on the 253(1)(

a) it seems duplicitous to enter a second conviction for essentially the same offence, and I am thus entering a stay of proceedings here. [ 75 ] S.255(3.1) is a relatively new enactment with little case law attached to it. It appears to require less by way of direct causation between the “over 80” aspect and the resultant harm. Be that as it may, it would again offend the rule against multiple convictions for the same delict to entertain a finding of guilty here.

Without saying whether, in my view, the evidence supports such a charge I am again entering a stay of proceedings here as well. [ 76 ] The accused was also charged with criminal negligence causing death, but any wrongdoing is completely subsumed in the elements of the s.255(3) offence and it is therefore not necessary to proceed further with a consideration the s.220 charge. A stay is likewise entered. Dated at Sydney, Nova Scotia, this 26 th day of January, 2011 Judge A. Peter Ross