R v Gladue, 2023 ABKB 130

Court of King’s Bench of Alberta Citation: R v Gladue, 2023 ABKB 130 Date: 20230307 Docket: 210245528Q2 Registry: Peace River Between: His Majesty the King Crown - and - Shaelyn Gladue Accused _______________________________________________________ Reasons for Decision of the Honourable Justice Douglas R. Mah _______________________________________________________ A. Background [ 1 ] This published version is a near verbatim rendition of the oral decision delivered in Court on March 2, 2023.

I have made minor wording corrections to enhance clarity and accuracy and have added headings and citations; otherwise, there no changes. The oral version remains the official decision of the Court. [ 2 ] Shaelyn Gladue is charged with 3 counts in this indictment, that she on or about November 6, 2020, at or near Little Buffalo,

Alberta did: operate a conveyance in a manner that was dangerous to the public and thereby caused the death of Brittany Lamouche, contrary to

section 320.13(3) of the Criminal Code ; operate a conveyance while her ability to operate was impaired or within two hours of driving had a prohibited blood alcohol concentration, and while operating did cause the death of Brittany Lamouche, contrary to

section 320.14(3) of the Criminal Code ; and operate a conveyance while prohibited from doing so by reason of an Order made under the Criminal Code , contrary to

section 320.18 of the Criminal Code . [ 3 ] In the early morning hours of November 6, 2020, the subject GMC SUV was travelling westbound on Highway 986 between Little Buffalo and Cadotte Lake when it crashed. [ 4 ] The occupants were the Accused, Ms. Gladue, the deceased, Brittany Lamouche (also known as Angie), Dakota Laboucan, and two others, Tara Lamouche and Samantha Lamouche. In terms of relationships, Samantha and Tara are cousins and Mr. Laboucan and Ms. Gladue are cousins. The deceased Brittany Lamouche was Mr. Laboucan’s partner or spouse. In evidence, he referred to her as “my woman.” B.

Identity of the Driver [ 5 ] I am first going to deal with the issue of the identity of the driver of the subject vehicle on the morning in question. This is an element of each of the three counts in the indictment and must be proven beyond a reasonable doubt. [ 6 ] Samantha Lamouche and Mr. Laboucan gave evidence at trial concerning the accident which forms the subject matter of this indictment. Samantha admits to drinking that night, had passed out from drinking while in the SUV but woke up at some point. She says she was not paying attention to detail. [ 7 ] She recalls Ms.

Gladue was the driver and Brittany was in the front passenger seat. Mr. Laboucan was seated directly behind Brittany, Samantha herself was behind the driver and Tara was in the middle in the backseat. [ 8 ] There was a “60 pounder” of vodka being consumed by the occupants of the vehicle. She said that “we were drinking” without specifying exactly whom. Samantha said they were running low on booze and were on their way to Cadotte Lake to get more. [ 9 ] Samantha said she did not notice anything unusual about Ms. Gladue’s driving.

She said she didn’t know the speed limit on that stretch of road and did not take note of the vehicle speed. She noted the roads were slushy. She is unsure if the vehicle hit ice but at any rate, it started swerving, the driver lost control of the vehicle, and it rolled. [ 10 ] Samantha identified the vodka bottle in photo 5, Exhibit 1 as the bottle being consumed in the vehicle. It seems to have been propped up against a tree following the accident. [ 11 ] Mr. Laboucan eventually confirmed in his evidence the position of the occupants in the vehicle as described by Samantha.

In a moment I will get to why I use the word eventually . [ 12 ] Mr. Laboucan testified that it was a clear day, the roads were icy, there was no traffic, the speed limit was 100 km/h, and the vehicle was travelling 120 km. He confirmed that the 60 pounder was being consumed and he also identified the bottle in the same photo. He said that Ms. Gladue was trying to change radio stations, lost control of the vehicle, the vehicle rolled and ended up in the trees. He described Ms. Gladue as “kinda high”.

He said he was suffering from a hangover at the time and although he took a couple of shots, he didn’t really feel like drinking. His in-Court evidence, as I said eventually , about who was driving changed dramatically in the course of his testimony. [ 13 ] With regard to credibility and reliability of these witnesses, admittedly Samantha’s memory of detail is hazy because of alcohol consumption. But she is absolutely clear and refused to back off on cross-examination that Ms. Gladue was the driver. [ 14 ] Mr. Laboucan was a reluctant witness. He failed to respond to a subpoena for the preliminary inquiry.

He failed to respond to the subpoena for this trial and it was necessary to issue a witness warrant. He was then arrested and brought to Court to testify. [ 15 ] I mention here that I have the advantage of going to the FTR or official recording and listening to the evidence as many times as I like, in order to satisfy myself as to what was actually said and to understand it better. I went to the FTR and relistened to parts the evidence of several witnesses, including that of Ms. Lamouche, Mr. Laboucan and Cpl. Davoren. [ 16 ] After being sworn, Mr.

Laboucan told the Court that it was “my woman” (meaning Brittany) who was the driver. In observing him, it seemed to me that he struggled to get that answer out. There was hesitancy in his manner and voice. This apparently was not the evidence that the Crown was expecting. The witness was excused while the Crown prepared to make its application under section 9(2) of the Canada Evidence Act to cross-examine its own witness on a previous statement given to police. When Court reconvened, Mr.

Laboucan was shown his statement, he read it and he experienced a reversal. [ 17 ] From my observation, when confronted with his previous words, he realized he could no longer maintain the position he had earlier adopted regarding who was driving. He said out loud: “Can you forgive me?” Mr. Smith in submissions questioned what that utterance meant, but I interpreted it as being directed to Ms. Gladue. He was looking at her when he said it. He was signaling that he was about to do something against her interests. To me, Mr. Laboucan was undergoing internal conflict.

After saying “Can you forgive me?” he then gave a version of the facts in which Ms. Gladue, not Brittany, was the driver. [ 18 ] He said, “I remember it clearly”, referring to the accident itself. He said in Court that Ms. Gladue was driving, and that

Brittany was in the front passenger seat. On cross-examination, he admitted he was reluctant to attend Court, but it was not because he had lied to the police. Rather, he explained his that attempt to avoid coming to Court and his initial evidence that Brittany was the driver was because “I don’t want a mama to leave her kids.” I interpreted this to mean that, if he told the truth, it would lead to Ms. Gladue’s conviction, jail and separation from her family. [ 19 ] Mr. Laboucan was emotional during parts of his testimony. He said he did not want to talk about the accident.

I understand that he lost his partner in this accident and he was there when it happened. [ 20 ] The Defence urged upon me that Mr. Laboucan is an untrustworthy witness because he told two completely different versions of what happened within 10 minutes. He explained his reasoning for initially lying to the Court and although I would never condone lying to the Court, I understand why he was motivated to do so at the outset. He was clearly in a dilemma. [ 21 ] I mention here that Mr. Laboucan’s previous statement to police was not technically in evidence before me at the trial itself.

I only point out that being confronted with that previous statement precipitated his change of heart in Court. I otherwise attach no value to it. [ 22 ] I further acknowledge that Mr. Laboucan’s evidence about his use of a seatbelt that morning is at odds with the expert evidence of Cpl. Davoren, which I will discuss at length in a few moments, who said he could find no evidence that the rear seatbelts had been used. Mr. Smith submitted that Mr.

Laboucan was trying to make himself appear more virtuous and I should treat all of his evidence with suspicion. [ 23 ] It is, however, axiomatic that the trier of fact may accept some, all or none of a witnesses’ evidence. Whether or not he wore a seatbelt is not a core issue but rather a detail of limited relevance. [ 24 ] Although each of these witnesses has challenges with his or her evidence, they were, when pressed on the issue in cross- examination, insistent that Ms. Gladue was the driver. This evidence does not come before the Court in the most perfect of circumstances.

But both of them were in the vehicle, and it was a memorable and significant event. Samantha may have been hazy about detail, but she was not hesitant on this core point. It is also because Mr. Laboucan did not want to give evidence on this point against Ms. Gladue that I now believe him. [ 25 ] The Supreme Court of Canada has said in cases such as R v Gagnon , 2006 SCC 17 at para 20 that assessing witness credibility is not a precise science but involves forming a complex intermingling of impressions that emerge from observing and listening to the witnesses and attempting to reconcile what they say.

I have thus formed an impression of truthfulness with respect to Mr. Laboucan’s evidence concerning the identity of the driver. [ 26 ] Kayla Germain, a paramedic who was summoned to the scene, testified that she attended to Ms. Gladue on the driver’s side of the vehicle. I acknowledge that she had the driver’s side facing the wrong way, away from the highway instead of towards it. But she is not mistaken about whom she dealt with. [ 27 ] Based on all the foregoing, I find beyond a reasonable doubt that Ms. Gladue was the driver of the SUV when this accident occurred.

Accordingly, and as was conceded by Defence counsel if I made this finding, I find she is guilty of Count 3 in the indictment, which is driving while prohibited. C. Dangerous Driving Causing Death [ 28 ] I move on to consider the remaining 2 counts in the indictment. For the purposes of these two remaining counts, the Defence concedes that the death of Brittany Lamouche did occur in this accident and that there is causation between the conduct that is charged and the death. [ 29 ] I’ll consider first the dangerous driving charge which in large measure depends on the evidence Cpl. Davoren. Cpl.

Davoren’s Expert Evidence [ 30 ] Cpl. Chris Davoren was qualified as an expert witness in the identification and

interpretation of physical evidence related to motor vehicle collisions, including determination of vehicle position and orientation, the dynamics of collision, and pre and post-impact movements, and in the

interpretation and analysis of event data recorder (EDR) information and its relation to a collision. He has worked as an RCMP member in the field of collision investigation, on a part-time basis between 2009 and 2015, and a full-time basis since 2016. He has investigated 900 collisions. His Technical Collision Reconstruction Report in this matter was entered as Exhibit 5. [ 31 ] He was called to this accident site on the morning of November 6, 2020. After describing the steps taken and observations made, Cpl.

Davoren provided this evidence, with reference to his report: Hwy 986 is a well-travelled asphalt roadway, running east-west, with a posted speed limit of 100 kph in the area of the collision. The roadway is straight in the area of the collision and the road that morning was mostly bare, with the areas of ice and snow. The report contained many photographs taken by Cpl. Davoren depicting the accident site and documenting the extent of the damage to the vehicle and to the trees. The subject vehicle, a 2008 GMC Acadia SUV, came to rest on its roof in the trees on the north side of the highway.

It had sustained significant damage to most of the body panels and attaching components. Tire marks leaving the westbound land, crossing the north ditch and leading into the treeline and the final position of the vehicle indicated it rotated clockwise then rolled over. The side airbags had deployed. The Sensing Diagnostic Module (SDM), which is the EDR for the subject vehicle, contained data for a single event, being the rollover in question. Pre-crash data retrieved from the SDM is summarized in a table on page 11 of the report. Cpl.

Davoren stated that the vehicle leaving the road into the sloped ditch (i.e. the SDM detecting the change in the angle of the vehicle) activated the

“Rollover Event Enable” so as to capture the data. The data points are recorded at intervals of 0.5 seconds, with the oldest being - 2.5 seconds and youngest -0.5 seconds in relation to the Rollover Event Enable. The data recording would not have occurred instantaneously. He described data collection being subject to some latency in the system.

He told the Court that the 2.5 seconds of data recorded in the SDM occurred after the vehicle left the road but before it hit the trees, but he could not say with any degree of specificity beyond that when, on the GMC’s path from the road to the trees, the 2.5 seconds elapsed. The data also shows that 3.66 seconds after the Rollover Event Enable was activated, both side airbags deployed in response to a side impact event.

Even though the vehicle itself had started to rotate and was sliding towards the trees, and at the same time was decelerating, as far as the vehicle itself was concerned, the transmission sensor was still detecting the wheels spinning at between 109 and 106 mph, or at or close to 175 kph, and thus that data was recorded. The SDM data is expressed in miles, so some conversion is required. From his

interpretation of the SDM data, he was of the opinion that the vehicle was travelling 109 mph or 175 kph when it left the road. He conceded that since the vehicle was rotating as it travelled along its path to its final resting place, the SDM speed data was out- of-sync with the actual physical speed of the vehicle. That is because the speed data for the SDM comes from the vehicle’s transmission sensing the rate of wheel rotation. Since the vehicle at some point was sliding sideways, the rate of wheel rotation would not be aligned with the actual speed that the vehicle was moving as it was sliding.

The vehicle was decelerating the entire time after it left road and travelled along its path to its final position. Deceleration was caused by the tires digging into the ground as the vehicle slid sideways and eventually collided with the trees. Cpl. Davoren did his own calculations regarding the vehicle’s speed loss as it left the road, tumbled and came to a rest, using standard industry formulae. He used the formula for Rotating Slideslip for the first 64.13 metres of the vehicle’s movement from the edge of the roadway to where the vehicle tripped, coming up with a speed loss of 90 kph for that distance.

A second calculation utilized the Slide to Stop formula for the tumble distance of 14.78 metres, resulting in a speed loss of 37 kph for the second span. The Combined Speed formula resulted in a combined speed loss of 97 kph. His evidence was that his application of the formulae produced these results. He was unable to explain how the formulae worked to produce the combined speed loss number. He noted that his calculations were based solely on the measurements he took at the scene. He did not and could not account for the speed loss attributable to the GMC contacting the trees.

For this reason, he said, his calculations are not consistent with the vehicle speed data retrieved from the SDM, a difference of 78 kph. Cpl. Davoren concluded that, based on the SDM data, the GMC was travelling at 175 kph as it left the road and began its slide into the trees. [ 32 ] In

summary, Cpl. Davoren’s opinion is the GMC was travelling at an unsafe rate of speed for the road conditions, resulting in a loss of traction and the inability of the driver to control the vehicle. [ 33 ] He also said the “carnage” (meaning the physical damage to the vehicle and to the trees) could not have been sustained unless a high rate of speed had been reached. Having viewed the photos, I would describe the vehicle as being crumbled and caved in on virtually all sides. The driver’s door was torn off. The vehicle frame was severely twisted.

There was extensive tree damage as well, with several trees broken or snapped. [ 34 ] Cpl. Davoren expressed the view that the damage profile meant the vehicle could not have been moving at or close to the speed limit. He based this view on his years of experience in investigating collisions and looking at collision damage. [ 35 ] There is no actual evidence of the speed the GMC was travelling at the moment it left the road or how long it had been travelling at that speed. The evidence is circumstantial, primarily in the form of the SDM data and Cpl. Davoren’s opinion evidence.

Alternative Scenario [ 36 ] The determination of the dangerous driving charge really comes down to whether the SDM data reproduced on page 11 of Cpl. Davoren’s report is amenable to a reasonable inference other than the GMC was travelling at a speed of 175 kph when it left the road and that it had taken some distance to achieve that speed. Or, put another way, is the alternative scenario posed by Mr. Smith in cross-examination, of the vehicle hitting ice, the driver reacting by stomping on the gas instead of the brake just before the vehicle left the road, a reasonable inference on the evidence? [ 37 ] Cpl.

Davoren disagreed with Mr. Smith’s scenario that the accident could have occurred with the vehicle travelling at 120 kph, skidding on a patch of ice, and the driver reacting by suddenly but mistakenly hitting the gas instead of the brake, thus accounting for the exit speed off the highway of 175 kph. Cpl. Davoren admitted he could not speak definitively of the capability of this GMC model to accelerate from 0 to 175 kph but did comment that the vehicle was not a particularly fast model. He rejected the notion that this vehicle could accelerate from 120 to 175 kph from a quick stab of the gas pedal.

He used the word “ridiculous” in addressing the alternative scenario posed. Cpl. Davoren did allow that it was unknown at what point the GMC had reached the speed of 175 kph, whether it was one kilometre back or just before it left the road, but it would require a considerable distance to build up to that speed. [ 38 ] What he basically said is that the SDM data showed the wheels were turning at 109 to 106 mph, or roughly 175 kph, at the time it left the road. In order for the wheels to be turning at that speed while the vehicle was sliding across the ditch, the vehicle had to first reach that speed on the road.

It takes some distance to build up to that speed. A sudden stab of the gas pedal a few seconds before the vehicle leaves the road would not account for a spike in acceleration from 120 kph to 175 kph in such a short span of time. [ 39 ] The Defence invokes and relies on the principle from the Supreme Court of Canada case R v Villaroman , 2016 SCC 33 that in order for the trier of fact to draw an inference of guilt from circumstantial evidence, it must be the only reasonable inference available, when the circumstantial evidence is viewed logically and in light of human experience.

Any alternative inference to be drawn pointing away from guilt must also be reasonable in the same way and not speculative.

[ 40 ] I conclude that the only reasonable inference to draw from the evidence I have heard is that the GMC was travelling at a speed of 175 kph when it left the roadway and that it would have taken some distance to attain that speed. As such, I conclude that the alternative scenario proposed by the Defence that the 175 kph was achieved mere seconds before the vehicle left the road from a sudden acceleration from 120 kph resulting from a sudden but mistaken stab of the gas pedal, is not available on the evidence as a reasonable inference. With regard to the distance travelled to attain that speed, I accept Cpl.

Davoren’s evidence that the alternative scenario would not be possible, especially with a GMC Acadia, which is not a fast vehicle. With regard to the speed itself, I accept Cpl. Davoren’s evidence that the SDM speed data is indicative of the vehicle speed as it left the road and that the extent of damage to both the vehicle and the landscape is also indicative of that speed. [ 41 ] The alternative scenario, I find, is both speculative and implausible. [ 42 ] The SDM data and Cpl. Davoren’s opinion overcome Mr. Laboucan’s reported speedometer reading of 120 kph.

On this point, he said this: “I watched – seen – the speedometer.” I do not know at what point he made this observation or whether he was continuously monitoring the speedometer. He did not say that he was. Application of the Law to the Facts [ 43 ] Having made that finding, I now move to the law with regard to dangerous driving.

Both sides agree that the governing case is R v Roy , 2012 SCC 26 in which the Supreme Court of Canada defines the actus reus of the offence as driving that is objectively dangerous in the circumstances, and the mens rea as the marked departure from the actions of the reasonable person in those circumstances. [ 44 ] Samantha Lamouche said she noted nothing unusual about Ms. Gladue’s driving, at least until the accident occurred. That may be so, but she also did not know the speed limit on that stretch of road and did not know how fast the vehicle was travelling. I have just commented that Mr.

Laboucan did not say he was keeping constant visual on the speedometer. Samantha said the road was slushy and Mr. Laboucan described it as icy. [ 45 ] Cpl. Davoren noted the surface of the roadway was mostly bare, with patches of ice and snow. He made no note of having to travel below the speed limit in order to maintain a safe speed. Constable Soltendieck travelled to the accident site in a police service vehicle at 150 kph with lights and sirens activated and felt comfortable doing so. Mr.

Smith suggested that, as such, the road conditions were not highly perilous. [ 46 ] All witnesses say the highway was not busy on the morning in question. [ 47 ] Ms. Gladue was not a police officer operating a service vehicle with lights and sirens activated. The GMC was moving 25 kph faster than Constable Soltendieck’s service vehicle. Moreover, Ms.

Gladue had 4 passengers who, for the purposes of this offence, should be considered members of the public exposed to whatever risk was presented by the driving. [ 48 ] The Crown says that viewed objectively exceeding the posted speed limit by 75 kph, the presence of slippery icy patches, along with the consumption of some alcohol (and I will discuss the consumption of alcohol in more detail in a moment) combine to make the driving objectively dangerous.

The Defence submits that driving at a high rate of speed, while fiddling with the radio, is less than perfect driving but does not meet the threshold of driving that is objectively dangerous. [ 49 ] I agree with the Crown that driving at such a speed in the circumstances described is objectively dangerous. The posted speed limit was exceeded by 75 km or 75%. Ms. Gladue was driving a civilian vehicle with passengers. Although neither Cst Soltendieck nor Cpl.

Davoren encountered any difficulty in their travels at their speeds, there were still at least patches of ice or slush on the road, maybe not overly treacherous, but even with just patches, a speed of 175 was objectively dangerous. The remaining question is whether there was a marked departure from the standard expected of a reasonable person in the same circumstances. [ 50 ] This passage from Roy is helpful at para 40 : Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm.

However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving.

The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. [ 51 ] With respect to the speed itself, the Crown cited two further authorities.

The first is the Alberta Court of Appeal decision in R v Cowan , 2004 ABCA 397 , predating but echoing the legal test for dangerous driving found in Roy and standing for the proposition that if speed is relied upon for a finding of dangerous driving, the Court must make a finding as to the exact speed, which I have done here. Also cited was R v Farrell , 2007 ABPC 137 , also predating Roy and which says that under certain circumstances, evidence of excessive speed can constitute dangerous driving and there is no specific number of kilometers over a posted speed limit that forms a standard.

In Farrell , dangerous driving was found when a motorist was driving at 170 kph, against a posted speed limit of 80 kph, on Crowchild Trail in Calgary, at around midnight with other vehicles on the road. Following Cowan , the Court in Farrell says excessive speed in the right circumstances can be a marked departure. [ 52 ] In this case, looking at the manner of driving itself, not looking at the consequences or the evidence of fiddling with the radio, I conclude that a reasonable person in Ms.

Gladue’s position would have been aware of the risk posed by driving on that highway at that speed at night and in circumstances of some slushy or icy patches and with a carload full of people, and would have chosen to drive at a lower speed.

[ 53 ] I therefore conclude that the fault element has been made out. [ 54 ] Causation of the death has been admitted. Therefore, I find Ms. Gladue guilty of the offence of dangerous driving causing death as set out in Count 1. D. .08 [ 55 ] I will now deal with count number 2, which is impaired driving or having a blood alcohol content over .08 within 2 hours of driving, causing death. The focus of my discussion is on whether either the impaired driving or the .08 has been proven beyond a reasonable doubt. I’ll first discuss the .08 aspect.

Continuity Problems [ 56 ] There are issues concerning the continuity of the blood samples. [ 57 ] Constable Keewatin-Smyth observed the blood being drawn from Ms. Gladue by hospital personnel and the containers being placed in the hospital lab. She does not recall whether the containers had markings on them. Constable Guenette was tasked with executing a DNA blood warrant. He describes attending at the Peace River Hospital and taking custody of five vials of blood, which he believes were labelled with Ms. Gladue’s name.

He returned to the detachment where he said the vials were placed in the temporary DNA fridge in the exhibit room. He did not specify a date on which this occurred. [ 58 ] Constable Soltendieck testified that he received the blood vials directly from Constable Guenette and that he was the one who placed vials into the temporary locker, also on an unspecified day. He said that once the samples were logged into the system, they were sent away to be analysed. He said he did not recall whether the vials bore hospital markings but if there were any markings, they would have been from the hospital.

He did place police exhibit numbers on the vials. PE 003 consisted of 3 vials. He also marked 2 further vials PE 004 and PE 005. Not all the vials were sent for analysis. Constable Soltendieck explained that, in practice, one vial from each exhibit would be sent and the others retained in case a sent vial was destroyed in transit. [ 59 ] Here is another instance where I relistened to the evidence several times. When specifically asked by Mr.

Ritter how many vials were sent for testing in this case, Constable Soltendieck said that a sample was created from PE 003 and that all blood exhibits are sent to the FAC lab. He then said that a vial from PE 003 was sent. For clarification purposes, Mr. Ritter asked him “Was it only vials from PE 003 sent for testing?

Did I understand that right?” The witness responded “yes.” [ 60 ] Constable Soltendieck said that “PE” stands for physical exhibit and is a system of marking evidence that is in general use. [ 61 ] To further complicate matters, the report of analyst Anita Agblor, indicates that for this case exhibits PE 004, PE 005 and PE 006 were received, not PE 003. Only exhibit PE 004 was analysed. Therefore, the specific exhibit that Constable Soltendieck said was sent for analysis was not received and analysed by Ms.

Agblor and moreover, she appears to have analyzed an exhibit that was not sent and also received an additional exhibit (PE 006) that was not part of the set. [ 62 ] I am accordingly left in a state of doubt as to whose blood was received and analysed and forms the subject matter of the report. The report does document blood-alcohol readings significantly in excess of the legal limit. I conclude I cannot rely on this report because I cannot be sure whose blood was actually analysed due to the discrepancy in the exhibit number labelling.

Alternative method of proving over .08 [ 63 ] In the alternative, the Crown sought to prove the blood-alcohol concentration by reference to the medical documentation seized under Exhibit 5 from the Peace River Hospital. Specifically, the narrative part of the emergency room report from Ms. Gladue’s admission on November 6, 2020 indicates “an alcohol level of 54.7”. This comment was then cross-referenced by the Crown with a lab result generated on November 6, 2020 showing an ethanol concentration of 54.7 mmol per litre of blood. Mr.

Ritter then submitted that a ‘mole’ is a recognized and legal unit of measurement for the amount of a substance per the Weight and Measures Act and

Schedule 1 thereunder. He noted to me that

section 17 of the Canada Evidence Act permits the Court to take judicial notice of all acts of Parliament and a legislature. He cited to me the vintage authority of Hockin v Cooke, (1791) 100 ER 1039 in support of the proposition that the Court can apply a measure defined by statute. [ 64 ] To complete the argument, Mr.

Ritter advised that he applied a conversion formula that he found on the internet to convert 54.7 mmol per litre to 251.62 mg per 100 mL, which closely approximates the blood-alcohol concentration values found in the analyst’s report on which I do not rely. [ 65 ] I take no issue with how the Weights and Measures Act constitutes the mole as a legal unit of measurement in Canada. I further do not doubt what Mr. Ritter has told me, namely that he located a conversion formula on the internet and did the conversion, which yielded the result that he reports.

What I do take issue with is adopting the conversion formula without knowing its origin or reliability. I do not think that Mr. Ritter would consult some crackpot internet site and likely went to a reputable institutional source, but I do not know what it is, and the Crown led no evidence in that regard. [ 66 ] Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open Court.

Judicial notice is the acceptance by a Court, without the requirement of proof, of any fact or matter that is so generally known and accepted in the community that it cannot be reasonably questioned, or any fact or matter that can be readily determined or verified by resort to sources whose accuracy cannot reasonably be questioned: Paciocco & Stuesser, The Law of Evidence , 8 th ed (Toronto: Irwin Law Book, 2020).

[67] Here, I say the conversion of millimoles per litre to milligrams per 100 mL is not something that is so notorious that I shouldaccept it without proof. Further, the second branch of the judicial notice test is not met here because the conversion formula was noteven presented to me, let alone determined or verified by undisputed sources.

I was only told that there was a conversion formulaavailable on the internet and that it was applied. [68] This is not a case of converting inches to centimetres, Fahrenheit to Celsius, or ounces to grams, conversions that are socommonplace that they would be readily accepted by this Court without proof of the accuracy of the conversion formula. As thediscussion of the interval between Rollover Event Enablement and deployment of airbags in Cpl. Davoren’s evidence illustrated, theplacement of the decimal point completely changes the significance of the measurement.

We spent a little bit of Court time reasoning outthat outcome along with Cpl. Davoren. Here, I am asked to base guilt on an assumption that a conversion formula found on the internet isvalid and accurate. I do not for a moment doubt Mr. Ritter’s credibility or sincerity. I just do not think that the legal criteria for judicialnotice of the conversion formula have been met and I cannot accept the result as proof beyond a reasonable doubt that Ms. Gladue’sblood-alcohol level exceeded .08 on this evidence. E.

Impairment of Ability to Drive? [69] What remains then is the other route to conviction on Count 2, which is proof of impairment. The Crown cited R v Stellato, (1993), 78 CCC (3d) 180; 18 Crown (4th) 127 (ONCA), aff’d (SCC), [1994] 2 SCR 478n, 90 CCC (3d) 160n, for theproposition that if evidence of impairment establishes any degree of impairment ranging from slight to great, the offence is proven. [70] There is no evidence before the Court of the actual amount of consumption by Ms. Gladue.

There was the 60 pounder ofvodka, apparently being passed around by the occupants in the vehicle, but no direct evidence that Ms. Gladue was drinking from it.Samantha Lamouche used “we” to describe the drinkers in the vehicle without specifying exactly who. [71] There is some evidence of impairment, which I comment upon as follows: Samantha stated she wasn’t paying attention to detail during the ride and had just woken up from being passed out from drinking.For what it is worth, she did not observe an abnormal driving pattern. She estimates that both she and Ms. Gladue were halfwaybetween drunk and sober.

In saying this, I infer that Samantha Lamouche had some knowledge that Ms. Gladue had been drinkingon this occasion. But as I said, Samantha’s assessment is not totally reliable because she said that she herself had passed out earlierfrom drinking earlier.With Mr. Laboucan, he said that Ms. Gladue was “kinda high” and while that is somewhat vague, indicates that some alcohol wasconsumed, and she did not display the behaviour of a completely sober person. I don’t know what else “kinda high” could mean.There is also an odd bit of evidence emanating from Mr. Laboucan’s cross-examination. He was asked by Mr.

Smith whether hehad told Evan Gladue, Ms. Gladue’s brother, that the accident wasn’t Ms. Gladue’s fault. He then clarified in Court that he meant“It was the alcohol”. I can only take this to mean that Mr. Laboucan meant that Ms. Gladue had consumed alcohol, which is whatcaused the accident. I am fully cognizant that this is presently an exercise in determining impairment, not causation, but to me, thestatement “It was the alcohol” is as much a statement about impairment as it is about causation.Paramedic Kayla Germain testified that Ms. Gladue admitted to drinking “lots”. The comment must be taken in context.

Ms.Gladue had just been in a rollover accident. Constable Keewantin-Smyth noted that Ms. Gladue was in quite a bit of distress, andshe did not make breath demand because she was not confident that Ms. Gladue would have understood it. [72] Both Ms. Germain and Constable Keewatin-Smyth, alert to the fact that the accident might have been caused by drinking anddriving, did not detect any order of alcohol. While, as Mr. Smith says, this is not determinative, it is a piece of evidence that I take intoaccount in looking at the totality of evidence. I also take Mr.

Smith’s point that there is no evidence of the usual indicia of impairment,slurred speech, loss of balance and so forth. [73] But Mr. Ritter suggested that the manner of driving might be indicative of impairment if I’d found that she had been driving at175 kph prior to the accident, which I did. [74] It is useful here to quote from the other case cited by the Crown, R v Andrews, 1996 ABCA 23.

The majority sets out theseuseful principles at para 31: In my view the following general principles emerge in an impaired driving charge: (1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt; (2) there must be impairment of the ability to drive of the individual; (3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; (4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and (5) proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused and hisconduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof bemet.

To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessingthe evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [75] A further Alberta authority, R v Rhyason, 2006 ABCA 367, discusses the permissible evidence that may be used to draw aninference of impairment. Although not cited by either counsel, both counsel did comment on whether the manner of driving was relevantin an impairment determination. I quote from the majority of the Court of Appeal at para 37:

There is extensive authority to the effect that the circumstances of an accident can be taken into account, along with other evidence, indetermining whether the ability to drive was impaired by alcohol. See e.g.: R. v. Harding (1998), (NS CA), 166N.S.R. (2d) 235 (N.S. C.A.); R. v. Mercer, 2000 NFCA 34, 189 Nfld. & P.E.I.R. 174 ; R. v. Goudreault (2004), (ONCA), 191 O.A.C. 72, [2004] O.J. No. 4307 at para. 14.

There was enough evidence for the trial judge to find as a fact that the appellant’sability to drive was impaired by alcohol. [76] Here, there is evidence of impairment, which I’ll summarize: Samantha Lamouche’s estimate of Ms. Gladue’s level of intoxication, which indicates she knew that Ms. Gladue had consumedsome alcohol;Mr. Laboucan’s evidence that Ms. Gladue was “kinda high”, again indicating that the witness was aware of some alcoholconsumption on Ms. Gladue’s part;Mr. Laboucan’s clarification in Court of his statement to Evan Gladue that the accident wasn’t Ms.

Gladue’s fault, rather “It wasthe alcohol”, once again denoting that the witness was aware that Ms. Gladue had consumed some alcohol;Ms. Germain’s evidence that Ms. Gladue had admitted to drinking “lots” when asked about it; andThe manner of driving, not the consequences, which includes driving at 175 kph, at night, with a carload of people and a road thathad some icy or slushy patches. I already said this is a deviation from normal and reasonable conduct. [77] Each bit of this evidence, apart from the last one, does have its own challenges. There is a flaw with each item.

Not a singleone or even two combined would convince me beyond a reasonable doubt that Ms. Gladue’s ability to drive was impaired by alcohol, butI must look at the totality of the evidence, not examine each item, reject it and go on to the next and then at the end say there is nothing.There is a clear and consistent theme that emerges and that is that Ms. Gladue had consumed alcohol and was impaired to some extent.Why else would Samantha Lamouche say that Ms. Gladue was half-way between sober and drunk, or Mr. Laboucan say Ms. Gladue was“kinda high” and “It was the alcohol”?

What else does “lots” mean other than lots? And then I factor in the manner of driving. I knowthat it seems that I am double-dipping on the manner of driving as proof of both offences, but there was only one incident here leading tocharges for two separate offences. The manner of driving that I described with the excessive speed, at night, with the carload of peopleand the patches of slippery road is strongly suggestive of the lack of inhibition and judgment associated with drinking. Taken in totality,there is enough for me to draw the inference of impairment and I do. The alternative inference that Ms.

Gladue’s ability to drive was notimpaired by alcohol, even to the slight degree required by Stellato, is not reasonably available here, particularly in light of the manner ofdriving. [78] Taking all of the evidence into account into account, I am persuaded that the Crown has proven at least some impairment ofability to drive beyond a reasonable doubt, and so I am compelled to find Ms. Gladue guilty of Count 2 as well. F.

Summary & Conclusion [79] This accident was a terrible tragedy for all concerned, not just for the occupants of the vehicle but their families as well, andthe whole of the community. It is a tragedy for you, Ms. Gladue. You had an experienced lawyer present a vigorous defence on yourbehalf, a defence that gave me a lot of think about. There was not more than could be said or done. I don’t agree with but understand Mr.Laboucan’s misplaced attempt to deflect blame away from you.

I understand what he means when he said, “I don’t want a mama to leaveher kids.” Reasonable doubt cannot be based on sympathy, it can only come from the evidence or the absence of evidence. In the end, Ican only go where the evidence takes me. [80] Stand up, please, Ms. Gladue. I know I am only adding more tragedy to this accident. I find you guilty of all 3 counts in theindictment. Heard on the 27th and 28th day of February and the 1st of March, 2023. Oral Decision delivered on the 2nd day of March, 2023. Dated at the Town of Peace River, Alberta this 7th day of March, 2023. Douglas R. Mah J.C.K.B.A.

Appearances: Bruce Ritter

for the Crown Stephen M. Smith for the Accused