R. v. Devison, 2016 NSPC 43

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Devison , 2016 NSPC 43 Date: 2016-06-24 Docket: 2844313, 2844314, 2844315 Registry: Sydney Between: Queen v. Judith Devison Revised Decision: Judge: The text of the original decision has been corrected according to the attached erratum, dated September 28, 2016. The Honourable Judge A. Peter Ross Heard: May 3 & 4, 2016 in Sydney, Nova Scotia Decision June 24, 2016 Charge : CC 255 (2), 255(2.1), 252 Counsel: Darcy MacPherson, Crown Attorney TJ MacKeough & Nash Brogan, Defence

SUMMARY The accused was tried on charges of impaired driving causing/resulting in bodily harm under s.255(2), causing an accident while driving “over 80” which resulted in bodily harm under s.255(2.1), and leaving the scene of an accident with intent to escape liability under s.252. The accused lost control of her vehicle, crossed the highway, and struck a pedestrian on the opposite side. She drove away, back in the opposite direction, in her damaged vehicle. Police encountered her afterwards, a number of kilometers down the road. She was seemingly unaware of her direction of travel.

She displayed indicia of impairment by alcohol, and was arrested. Breath tests showed blood alcohol concentrations of 170 and 160. The scene was examined and the dynamics of the accident reconstructed by an expert. Passers-by testified to what they encountered when they came upon the scene, but could provide no direct evidence on just when the accident had occurred. Neither did the victim know the time of the collision. The accused did not testify. Defence argued that the evidence showed the possibility of a blown rear tire, causing the vehicle to spin out of control.

The vehicle was mechanically sound and the road and weather conditions unremarkable. The material time of driving for the offences charged was the time of the collision. Crown introduced evidence of an incident of erratic driving by the same make and colour of vehicle on the same highway that same morning. The time of this event was clear and certain. Police then established the approximate driving time between this location and the scene of the accident. Crown argued that this was

the same vehicle and driver, and by inference that the material time of driving was within two hours of the breath tests, thus invoking the “presumption of identity” in s.258(1)(c). Crown called no expert toxicologist to extrapolate the BAC readings back to any earlier time. The material time of driving was a critical fact bringing a legal presumption into play. It would serve to prove an element of the s.255(2.1) offence. As such, for this purpose, it had to be proven beyond a reasonable doubt. On all the evidence it was not, and the accused was thus acquitted of this offence.

Simultaneously, on the same evidence, the fact that the car and driver were one and the same in both locations was proven on the lesser standard of a balance of probabilities. As such it was available to the trier of fact as circumstantial evidence of impairment on the s.255(2) offence. There being no evidence of bolus drinking nor drinking subsequent to the time of driving, the BAC was taken to indicate a high degree of impairment.

The court assumed some knowledge of alcohol metabolism and, together with the proximity of this state of impairment to the time of driving, inferred significant impairment by alcohol as of the time of the accident. The presumption of intent in s.252 was rebutted by evidence which, at the same time, was indicative of intoxication to a high degree. This evidence created doubt that the accused know she had struck the pedestrian, thus leading to finding of not guilty on the charge of leaving the scene.

However this same evidence, coupled with her actions subsequent to the collision, served to indicate a high degree of impairment and was incriminating on the impaired causing bodily harm charge. The defence theory of a blown tire as a cause of the spin-out was no more plausible than the possibility that the deflation was a result of the spin-out. The BAC readings were given substantial weight.

Together with the pre-accident and post-accident indicia of impairment, the unexplained loss of control and other circumstantial evidence, impaired driving causing bodily harm was proven beyond a reasonable doubt, and the accused found guilty of the s.255(2) offence. By the Court: [ 1 ] This case concerns a car / pedestrian accident on the Trans-Canada Highway in Victoria County, Cape Breton. As usual, the pedestrian got the worst of it. The driver has been charged with criminal wrongdoing. [ 2 ] The only witnesses were the accused (driver) and complainant (pedestrian).

The latter remembers little of value for deciding the case. The former has chosen not to testify at her trial, as is her right. I have circumstantial evidence, measurement of blood alcohol concentrations from the accused, and an accident reconstruction report. THE CHARGES [ 3 ] The accused is Judith Devison. She is charged on or about the 8 th day of March, 2015 at or near South Haven, Nova Scotia, that she: 1. did while her ability to operate a motor vehicle was impaired by alcohol or a drug operate a motor vehicle, to wit a 2010 Blue Mazda 3 bearing N.S.

Marker EDN722, and cause bodily harm to Delia Buffett as a result, contrary to section 255(2) of the Criminal Code 2. having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in one hundred milliliters of blood did while operating a motor vehicle, to wit a 2010 Blue Mazda 3 bearing N.S. Marker EDN722 cause an accident resulting in bodily harm to Delia Buffett, contrary to section 255(2.1) of the Criminal Code 3. while having the care of a vehicle to wit a 2010 Blue Mazda 3 bearing N.S.

Marker EDN722 that was involved in an accident with Delia Buffett at South Haven, N.S. with intent to escape civil or criminal liability did fail to stop her vehicle, give her name and address and offer assistance to Delia Buffett, an injured party, contrary to

section 252 of the Criminal Code . The above wording contains some minor amendments to make the charges conform to the evidence. As well, I have modified counts 1 and 2 so that they conform to the current wording in the Criminal Code . As I suggest in par.60, below, the change to s.255(2) , made in 2008, from “did thereby cause bodily harm” to “cause bodily harm as a result” made no substantive difference to the offence. The accused suffers no prejudice from these amendments to the original wording. I view the elements and Crown’s burden of proof as unchanged whether the charges are worded as sworn in the Information, or as above. THE EVIDENCE

[ 4 ] Appreciation of the evidence begins with an understanding of the location of various communities on the Trans-Canada Highway in Cape Breton. Proceeding easterly from the Canso Causeway one would pass through the following places in the following order: River Denys – Wagmatcook – Baddeck – Port Bevis – South Haven. To get to Glace Bay one would continue to the end of the TCH and then take route 125. [ 5 ] River Denys is where the accused and her husband have a seasonal residence. Glace Bay is her usual residence. Baddeck is the site of the local RCMP detachment. South Haven is the scene of the collision.

Port Bevis is where the accused was stopped and arrested. Wagmatcook is the location of an event which I will now describe. (

i) The Incident at Wagmatcook [ 6 ] On March 8, 2015 at about 11:55 a.m. Deborah MacKillop witnessed an incident of erratic driving at Wagmatcook. [ 7 ] The Crown’s purpose in calling Ms. MacKillop is to show that the vehicle seen at Wagmatcook, and its driver, are one and the same with the car and driver at South Haven. If it succeeds in proving this point of evidence, it will have additional evidence of poor driving by the accused. In addition, the time of driving in Wagmatcook, if proven, may lead to proof of the time of driving in South Haven.

This would give the Crown the benefit of an evidentiary presumption. Subsequent to the incident at South Haven breath samples were obtained from the accused and her blood alcohol concentrations ascertained as of that time. If the time of sampling is shown to be within two hours of the impugned driving, the readings are presumed to be the same at both times (the so-called “presumption of identity”) This would completely fulfill the essential element of driving “over 80” as a component of the s.255(2.1) offence. [ 8 ] Ms. MacKillop was driving westerly on the highway behind a vehicle driven by her boyfriend.

She encountered a blue car proceeding easterly, which she recognized as a Mazda 3. It came across the yellow line, crossed into her lane of travel, narrowly missed the rear of her vehicle, and nearly hit the guard rail on her side of the highway. This bears resemblance to the track of the accused’s vehicle at South Haven before it hit the pedestrian / complainant. She did not observe the plate number of the vehicle. [ 9 ] Ms. MacKillop could not identify the driver nor even tell whether male or female. She is an IT supervisor with the RCMP in Halifax.

She is familiar with the Mazda 3, saying there were a number of them in the parking lot at work. She did not see the vehicle front-on because it was obscured by her boyfriend’s in the moments before the event, but never the less expressed confidence in her opinion that the vehicle she observed in Wagmatcook was the same make, model and colour as shown in police photographs of the accused’s vehicle.

She was a very convincing witness who seemed to have a good recall of events, who stated her recollections clearly, did not overstate or exaggerate, and answered questions without hesitation or obvious prevarication. [ 10 ] Ms. MacKillop places the time of this occurrence at 11:55 a.m. She had checked out of the Inverary Inn in Baddeck at approximately 11:30. She filled up with gas at an Irving station just east of Wagmatcook at 11:45, and produced a printed Visa receipt for the purchase which shows the time.

While defence says correctly that I have no direct evidence that the clock for this device was accurate, I think there are circumstantial indications of trustworthiness inherent in the system which accounts for such purchases and generates such records. This recorded time also ties in with a call made by Ms. MacKillop’s boyfriend. He called her from his own vehicle after the close call with the blue Mazda, to see if she was ok.

The time displayed on her cellphone for this call was 11:56. [ 11 ] Just a few days prior to trial, Constable Newell, the main investigator, at the Crown’s request, drove from the location in Wagmatcook to the accident scene in South Haven. He drove at the speed limit, which varies from 70 to 90 to 100 kph. He was not slowed down during the test drive by other traffic on the highway. It took him just over 20 minutes to drive this distance.

The purpose of this evidence is to place a time on the accident in South Haven, there being no direct evidence of just when this occurred. [ 12 ] The time of the collision in South Haven is the material time of driving in respect to the charges. I am satisfied that the time of the incident in Wagmatcook was 11:55 a.m. on the date in question. The question which remains is whether I can infer from all the evidence in the case that this was the same car and driver.

Degrees of proof may vary according to the intended use of the evidence: first, on the s.255(2.1) charge, to invoke the “presumption of identity” and prove a BAC at the time of driving; second, on the s.255(2) charge, as circumstantial evidence on the issue of driving while impaired. (ii) The Incident at South Haven [ 13 ] Delia Buffett, born in 1939, who lives at #4289 Trans-Canada Highway, South Haven, left her home for an accustomed walk to the Gaelic College on Sunday, March 8, 2015.

She walked down her driveway, across the highway, and eastward on the paved shoulder towards the turnoff to the Cabot Trail at St. Ann’s Bay. As such, she could see oncoming traffic in the adjacent west-bound lane. The weather was fine. The shoulder was not completely available to her because of the snowbanks created by the plows, but it was partly clear, and dry. She gave no time; it may not have mattered to her.

She thought she heard “a motor”, checked briefly, and everything “seemed ok.” Then she heard “the same kind of sound”, turned around and saw a blue car “in front of me.” She recalls her hand “on something metal, like a hood”, then “a car up a hill, me underneath, about to fall on me.” No car fell on her, and it is difficult to place this memory within what is known of the event. The rest, however, is consistent with what actually occurred, which is to say that she was struck by a blue Mazda 3, proceeding easterly, driven by the accused.

It had crossed over the center line of the highway, traversed the oncoming lane of traffic, struck the embankment, spun around, and hit Ms. Buffett front-on. Ms. Buffett was thrown a considerable distance. Her next memory is of a calm voice holding her hand, a person who identified herself as a nurse. She remembers the arrival of the police and ambulance. She suffered a fractured femur; the top of the femur had been pushed into her abdomen. She underwent a 5 hour surgery. Her rehabilitation proceeded through use of a wheelchair, to walkers to a four-legged cane.

At trial she assumed the witness box with the assistance of a regular cane. She suffered a grievous misfortune, but it has the appearance of a miracle that she did not end up in a box of a different sort. What I must determine is whether she was the victim of a crime. [ 14 ] First on the scene was a GMC Yukon in which Ian MacPherson was a rear-seat passenger. He testified to having arrived “between noon and 1:00” on the day in question. On approach he’d seen “something” in the westbound lane, and when he passed saw “someone’s hand”.

He also saw car parts “scattered all over the road” and tire marks on the pavement. They stopped and reversed, blocking that lane of traffic, and he and another went over to Ms. Buffett. She was lying on the white fog line. Items of clothing were strewn in the general area. There were no other vehicles, for the accused had by then driven off, back towards Baddeck, westbound.

MacPherson dialed 911. [ 15 ] He was on scene for about an hour. He estimated that the ambulance came between 5 and 10 minutes after his call, and said that the police arrived before the ambulance did. [ 16 ] To use the phrase “first on the scene” is to suppose that no one else drove by but failed to stop.

While it is possible, of course, that someone might come upon a situation such as this and yet not stop to render assistance (if only by calling for help), it is in my view very unlikely that such occurred. [ 17 ] Dawn McLaine and Wilfred Craig MacNeil were driving easterly on the highway on the day in question when they came upon the scene. McLaine is a nurse-manager at the Cape Breton Regional Hospital. MacNeil is a platoon chief with the Cape Breton Regional Fire Service. Only the MacPherson vehicle was there.

Unsurprisingly, they stopped. [ 18 ] Just previous to this, a short distance west of the scene of the collision, they had passed a blue Mazda stopped on the west- bound side of the highway, near a Church. MacNeil remembers seeing a lady, “laying over the steering wheel.” She had long hair. Her vehicle was parked with two wheels on the pavement, two on the gravel portion of the shoulder. He thought it odd, and considered stopping to check, but had proceeded along. After “a couple of minutes travel” he came upon the scene of the collision, as noted above.

He let McLaine out, and having made the connection in his mind went back to ascertain the plate number of the blue car. By then it was gone. He returned to the scene. He saw the car parts on the road. He turned one over. It bore the inscription “Mazda”. [ 19 ] McLaine estimates it was between 12:00 and 12:15 when she and MacNeil arrived there. She described Buffett’s condition. She held Buffett’s head and “maintained her” until the ambulance came. [ 20 ] Janelle Carey chanced upon the scene in a vehicle driven by her fiancée. She is a nurse. They were going west on the highway.

She saw “someone laying on the side of the road”. She got some blankets from her vehicle and went to assist McLaine. She estimates her time of arrival at between 12:20 and 12:25. She says the ambulance arrived 10 to 15 minutes later, an estimate at variance with MacPherson’s. As with the other witnesses she was shown photographs taken at the scene by police, within which she identified the location of Ms. Buffett, various items of clothing, etc. [ 21 ] By Agreed Statement of Facts an occurrence report authored by Constable Kuchta of the RCMP was admitted into evidence for the truth of its contents.

From this document, I learn that at “approximately 12:22 hours” Constables Kuchta and Newell received the complaint about the female lying on the highway, apparently the victim of a hit and run. While they were en route to the scene, in separate police vehicles, dispatch advised that the vehicle was suspected to be a blue Mazda 3 with a female driver. Kuchta was the first to come upon the accused’s vehicle, west of the scene. When seen by Kuchta it was parked on the shoulder of the westbound lane, the accused in the driver’s seat with her head on the steering wheel, holding a cell phone to her left ear.

He told Newell by radio to check this vehicle and continued on to the collision scene. He arrived there at 12:31. The ambulance arrived shortly after Kuchta did. [ 22 ] Constable Newell was on patrol near Wagmatcook when he received a call on his radio at about 12:20 that day. He proceeded towards the scene. He acted on Kuchta’s instruction to check on the blue Mazda, which he encountered at Port Bevis, a few kilometers west of South Haven. It was moving, straddling the fog line such that half was in the travelled portion, half on the paved shoulder. He clocked it at 47 kph on his radar. It was a 100 kph zone.

The vehicle had front end damage. A rear tire was noticeably low, if not completely flat. He activated his lights. The vehicle stopped at once. He approached the vehicle and asked for the usual identification. She was “upset, shaking, and crying”. She twice dropped her wallet at her feet as she took out her driver’s licence. Newell noticed an odour of liquor from her breath, red glossy eyes, slurred speech and a flushed face. He formulated grounds to believe that she was driving while impaired.

Newell, believing that she was “the driver involved in the accident” gave a police caution and placed her under arrest for impaired driving causing bodily harm. He took her cell phone. He placed her inside his police vehicle, read her the standard right to counsel, and a standard breath demand. [ 23 ] The accused made a few utterances to Newell during the above exchange. No issue was taken as to their admissibility. She said “I did not know I hit somebody – I hit a snowbank”. She also said she’d had three drinks that day, the last at noon.

Newell said he “put a question mark” on “noon”, because it suggested to him that she drank in her car while driving to her destination. She said she and her husband had a place in River Denys, Inverness County. Her licence revealed her home address as Glace Bay. She told Newell that she was proceeding home to Glace Bay. Indeed, she seems to have believed that when stopped she was still driving towards Glace Bay when in fact she was going back in the opposite direction.

Newell said “she was adamant” when he attempted to correct her. [ 24 ] I note again that someone driving from River Denys to Glace Bay would drive through Wagmatcook, Baddeck, Port Bevis and South Haven, in that order. [ 25 ] The accused was taken to the Baddeck detachment. She spoke to the lawyer of her choice. A breath test was administered by Constable Francis. Francis had also been to the scene at South Haven.

From his vive voce evidence I know that her BAC as measured by the Intoxilyzer instrument was 170 mg/100 ml at 13:57 and 160 mg/100 ml at 14:19. [ 26 ] Francis testified that he arrived at South Haven “just before” 12:56 but stayed only a minute. He understood that Newell was holding a female and a vehicle at a separate location, further west. He said it was “4 or 5 minutes travel from the scene to that second location, towards Baddeck.” When he arrived at Port Bevis, at 12:56, he saw a female in custody in Newell’s vehicle. [ 27 ] Newell took the accused to the Detachment.

Francis stayed with the vehicle until Constable Kenny arrived “to maintain control of the car”, this being 13:17. Francis then went to the Detachment to administer the breath tests, as noted above. [ 28 ] Newell did not give any times for his initial sighting of the accused’s vehicle in Port Bevis, the arrest, demand or subsequent steps at roadside. This may have been an omission, for he seems to have kept ongoing notes of the steps he took. [ 29 ] Newell viewed and identified photos he took of the accused’s vehicle in the secure bay at the RCMP Detachment. It was housed there pending examination by “Ident”.

[30] A “physical evidence comparison report” from a Forensic Identification Specialist with the RCMP was filed by consent. Specifically, the parties agreed that debris at the scene matched the subject vehicle and that a series of some 35 photographs of the vehicle accurately represent its condition as of March 8th, after the accident. [31] An expert in accident reconstruction was engaged. He arrived there later that same day. Constable David MacLean compiledevidence from various sources and filed a report of his findings.

He “reconstructed the dynamics of the collision” from all the sources ofevidence available to him. His photographs convey a very vivid image of the scene. He also took photos of the subject vehicle, bothwhile it was at roadside and later when it was in secure custody at the RCMP Detachment.

No issue was taken with his methodology orexpertise, and so I will simply mention some particular observations of his, and his conclusions, which I accept. [32] Aerial and other photographs show that the paved shoulder on both sides was partly covered by large snowbanks left by plows. [33] The accused’s vehicle was traveling eastbound at a minimum speed of 72 kilometers per hour as it entered a gradual counter-clockwise turn on the highway in a 90 kph zone. For some reason, which could not be determined, the vehicle spun out of control.

Itbegan to rotate in a counter-clockwise direction, leaving front and rear tire marks over a 40 to 50 meter stretch of pavement. Some of thestriations were caused by a “rolling and side slipping tire.” The vehicle crossed the center line, at this time perpendicular to the directionof traffic, and hit the snowbank on the opposite side. The front passenger side left a gouge in the snowbank. This reinforced the spin. The rear passenger corner struck the snowbank a second time, leaving another gouge.

A few meters further along the vehicle struck Ms.Buffett, who was walking close to the fog line in the oncoming (westbound) lane of traffic. She “entered” on the front driver’s side and“exited” on the hood on the passenger’s side. The force drove the grill down onto the pavement and drove Ms. Buffett more than 20meters down the road. She came to rest on the shoulder alongside the snowbank. The vehicle came to rest within 5 meters of the pointof impact, as appears on the graphic contained in the report. At this point the vehicle had completed one complete 360 degree rotationand was facing Ms.

Buffett, prostrate on the pavement, about 15 meters away. The vehicle would do a 180 degree turn in order toproceed back in the opposite direction from which it had just come. [34] With respect to observable causes, the expert notes that “the highway was dry, with sunny conditions.” As well, the vehicle wasinspected post-collision, and “there were no pre-existing mechanical defects that would have contributed to this collision.” [35] Constable MacLean measured the tire pressures on the vehicle at the Detachment. They were (in psi): 31 (left front), 17 (rightfront) 15 (left rear) and 0 (right rear).

The right rear tire was then completely flat. (One remembers that Newell had noted the conditionof this tire on first sighting the vehicle.) MacLean could not say what caused that tire to become flat. Cross-examined on the aspect oftire pressure, he acknowledged that “over-correction” does occur. He said that a loss of tire pressure on the right could cause a car tomove to the right, cause the driver to over-correct, thus putting a car into a spin. He said that loss of tire pressure on a front tire wouldhave a more noticeable effect on steering and control than loss of pressure from a rear tire.

He could not comment on tire pressures onthe basis of anything found at the scene except to say that had the vehicle been operated in such condition there would have beenevidence left on the roadway both from the tire and the rim. From his adoption of the premise of the question, and his use of the phrase“tire pressure changes” I take it that 17 and 15 are low, and that if a vehicle were driven with pressures like these it would affect thehandling of the vehicle.

He could not express any opinion on why the tires had these pressures at the time he did his examination. [36] The accident reconstruction report did not give a cause for the described events; it dealt with the dynamics of the collision, otherphysical observations of the scene, etc. The case for the Defence [37] I will summarize the Defence case as follows. Defence conceded that it was the accused who was driving the blue Mazda 3which struck Ms. Devison. It argued that there was insufficient proof that the blue Mazda seen in Wagmatcook was the same vehicle.

Itargued that the evidence did not establish that the material time of driving – the time of the collision – was within two hours of the firstbreath sample, and thus that the legal “presumption of identity” in s.258(1)(

c) does not apply, and thus there was no proof of driving“over 80”. It argued that there was little evidence of impairment, and that the evidence did not prove the necessary link between theaccused’s impairment and the bodily harm to the complainant. It postulated that a blown rear tire may have caused the accused’s vehicleto enter into a spin, resulting in the collision with the pedestrian. It argued that the evidence allows for the possibility that the accusedwas unaware she had struck the pedestrian and hence did not knowingly leave an injured person behind. THE LEGAL FRAMEWORK (

i) Impaired Driving [38] For many years it has been an offence to drive while impaired by alcohol (present

section 253(a)) and to drive with a bloodalcohol concentration exceeding 80 mg per 100 ml. (present

section 253(b)). These offences are paired in the legislation. They arecommonly referred to as “impaired driving” and “over 80” and I will employ those terms herein. [39] In R. v. Wallace 2010 ABPC 38 , [2010] A.J. No.136, the judge summarized the test for impaired driving as follows: [28] The legal test for impairment under what is now Section 253(1)(

a) of the Criminal Code was definitively stated in the case of R. v.Stellato (1993), (ON CA), 78 C.C.C. (3d) 380; aff'd (SCC), 90 C.C.C. (3d) 160, where the OntarioCourt of Appeal, later approved by the Supreme Court of Canada held that a trial judge must consider the whole of the evidence anddecide whether it is safe to infer that the accused's ability to operate a motor vehicle was impaired by alcohol. It does not matter if thedegree of impairment is slight or great.

As long as the inference of impairment of the ability to drive can be made beyond any reasonabledoubt, the charge is made out. [29] The Alberta Court of Appeal in R. v. Andrews (1996), A.R. 182; 1996 ABCA 23 , 104 C.C.C. (3d) 392, reminds of theneed to be cognizant of the distinction between slight impairment of one's ability to drive a motor vehicle, and slight impairment

generally. The legal question does not concern impairment of a person's functional abilities in general, but rather specifically the abilityto drive. [30] Though the impairment of the driving ability can be slight in order to prove the charge, the conclusion that the driving ability isimpaired should not be based on circumstances which differ only slightly from the norm. I take the foregoing to be a proper statement of law. [40] The test for driving “over 80” does not require the same sort of legal explication.

Little need be said about the meaning of 80milligrams or 100 millilitres. (ii) Impaired driving causing bodily harm / causing an accident while driving over 80 which results in bodily harm [41] What follows is a brief canvass of some cases where these offences are compared and discussed. Different courts have takenslightly different approaches. [42]

Section 255 of the Criminal Code creates offences of impaired driving causing bodily harm, subsection (2), and impaireddriving causing death, subsection (3). New offences were enacted in 2008 whereby the offence of “over 80” is also linked with bodilyharm, in subsection (2.1), or death, in subsection (3.1). The delict here appears to be a coupling of (

i) causing an accident with (ii)driving “over 80”, where either bodily harm or death results to another person. Presumably a person driving “over 80”, who isblindsided by another vehicle, the driver of which is hurt, has not caused this accident and would not be criminally liable for the otherparty’s injuries. The offence is not “being involved in an accident which (etc.).” Of course the person could still be guilty of the simpleoffence of driving “over 80”. [43] Given that s.255(2.1) and s.255(3.1) are worded similarly, cases dealing with one are instructive for the other.

Likewise casesdealing with causation are instructive whether the offence charged is impaired driving causing bodily harm under s.255(2) or death unders.255(3). [44] In R. v. Brogan 2008 NSPC 42 , [2008] N.S.J. No. 313 the accused, Patrick Brogan, was charged with impaireddriving causing death. He had pled guilty to driving “over 80.” Based on accident reconstruction and other evidence the fatal collisionwas seemingly unavoidable.

The accused did not see the boy’s bicycle move into his lane of traffic, but the accused’s impairment wasnot shown to have had any bearing on this, the boy having suddenly veered without warning. It had not been established that theaccused’s impairment affected his perception of his surroundings. [45] Instruction may be taken from the

summary of principles and authorities given by Derrick, J. as follows: [10] To prove impaired driving causing death, the Crown has to show, beyond a reasonable doubt, that Mr. Brogan's ability to operate hiscar was impaired by alcohol and that his impairment caused the accident that killed Joshua. An impaired driver who is involved in a fatalaccident is not automatically guilty of impaired driving causing death. The Crown must prove that the impairment was a significant,contributing cause of the accident.

"Some fault on the part of the driver must be found, aside from the fact of impairment alone."(Cabral, supra, at paragraph 13) [11] Subject to what I have just said, while courts have held that impairment alone could ground a conviction for criminal negligence,dangerous driving or impaired driving causing death, (see, for example, R. v. Colby, 1989 ABCA 285 , [1989] A.J. No. 1041(Alta. C.A.); R. v. Anderson, (SCC), [1990] S.C.J.

No. 14 at paragraph 18), criminal responsibility is not establishedunless it is proven beyond a reasonable doubt that the impairment was a significant, contributing cause of the death. (R. v. Nette, 2001SCC 78 , [2001] S.C.J. No. 75; R. v. Fisher, [1992] B.C.J. No. 721 (B.C. C.A.)) Absent other explanations for an accident,causation can be established from evidence that includes the circumstances of the accident itself. (R. v. Rhyason, 2006 ABCA 367, [2006] A.J. No. 1498 at paragraphs 39-40 (Alta.

C.A.)) [12] Where a reasonable doubt is raised that a driver's impairment was the significant, contributing cause of the fatal accident, the resultwill be an acquittal. (see, for example: R. v. Cabral, [2001] M.J. No. 38 (Man. C.A.); R. v. Anderson, (SCC), [1990]S.C.J. No. 14; R. v. Ewart, 1989 ABCA 287 , [1989] A.J. No. 1036 (Alta. C.A.); R. v. Isaak, [1988] Y.J. No. 113 (Y.T.C.); R. v.Petznick, [1987] O.J. No. 2474 (Ont. Dist. Ct.)) (I read par.12 above as “a significant, contributing cause, as in par.11) [46] In Brogan the trial judge was influenced by “scene evidence” to conclude at par.113: . . .

His ability to perform these tasks, his recognition that Joshua wasn't breathing, a fact he reported to Cst. Baker, the accuracy of hisdescription of what he saw just before the collision and his responsiveness to questions, leaves me with a reasonable doubt about theextent of his impairment. The totality of the evidence does not satisfy me that Mr. Brogan was in a state of intoxication at the time of theaccident. This finding was made despite expert toxicologist evidence that the accused’s BAC was between 147 and 195 mg % at the time ofdriving.

The judge said the apparent discrepancy was “perhaps due to an elimination rate outside the standard, even lower.” On all theevidence the trial judge was satisfied that the accused was impaired, but not persuaded beyond a reasonable doubt that he was more thanslightly impaired. Her analysis recognized the fact that unsteadiness displayed at the scene may have been a result of trauma suffered bythe accused as a result of the collision. [47] Ms. Devison’s BAC is in this same general range. Even without expert evidence I am inclined to attribute more importance tosuch levels than was given in Brogan.

For one thing, I have no comparable “scene evidence” of sensible behavior from Ms. Devison. [48] Evidence of impairment aside, the crux of the matter in Brogan appears to have been the lack of causal connection between

impairment – however slight or great – and the collision with the bicycle. [49] The offences under (2.1) and (3.1) did not exist when Patrick Brogan was charged. However the same result may pertain giventhat the Crown would be required to prove that the accused “caused an accident” while driving over the legal limit. On Judge Derrick’scareful analysis the collision may have been unavoidable; it may well have occurred even if the vehicle had been driven by a soberdriver. [50] In R. v. Jagoe [2010] N.B.J. No. 493 (NBCA) the accused was driving a truck while his BAC was over the legal limit of 80mg/100 ml.

A man intentionally jumped on the hood of his vehicle with a baseball bat, apparently intent on doing harm to Jagoe. Theman had just previously assaulted Jagoe who, fearing for his life, applied his brakes in an attempt to dislodge the man from the hood ofthe vehicle. The man did indeed fall off the truck, hit his head on the pavement and died as a result. The judgment puts it this way: [15] In order to be convicted, Mr. Jagoe must have "caused" an "accident".

There is considerable jurisprudence which supports the notionthat, in prosecutions for leaving the scene of an accident, the word "accident" includes both intentional and unintentional collisions. Forexample, in R. v. Modeste, 2012 NWTSC 31, [2012] N.W.T.J. No. 39 (QL), the accused deliberately ran into the victim with asnowmobile after an altercation. When charged with leaving the scene of an accident with intent to escape civil or criminal liability, Mr.Modeste contended there was no accident. The coming together of the snowmobile and the pedestrian was quite deliberate.

After athorough analysis of the jurisprudence, Charbonneau J. concluded that an "accident", for purposes of s. 252, includes intentional conducton the part of the accused. In R. v Hansen, (BC CA), [1988] B.C.J. No. 2600 (C.A.) (QL), the accused was convictedof attempted murder and leaving the scene of an "accident" after running down his lover's estranged husband. He appealed the convictionof leaving the scene of an "accident" on the basis that the act was deliberate.

Hutcheon J.A., for a unanimous Court, concluded that s.236 (as it then was) must be construed to "include both intentional and unintentional striking by a motor vehicle of a person". See also R.v. Chase, 2006 BCCA 275, [2006] B.C.J. No. 1252 (C.A.) (QL) and R. v. Chisholm, 1998 NSCA 155 , [1998] N.S.J. No. 274(C.A.) (QL). Needless to say, this line of authorities makes abundant good sense when dealing with leaving the scene of an accident toescape civil or criminal liability.

It would constitute an absurd result if one could deliberately strike an individual and leave the scenewithout penal consequences, while an accidental collision in which the driver left the scene would carry severe consequences. [51] The foregoing passage is an example of the difficulties created by the use of the word “accident” in these sections. TheMerriam Webster online dictionary defines accident to mean “a sudden event (such as a crash) that is not planned or intended and thatcauses damage or injury; an event that occurs by chance.” In some sense the phrase “causes an accident” in s.255 is an oxymoron.

Theword “accident” is antithetical to the idea of criminal responsibility, which is predicated on the control we have, or should have, over ouractions. Accident, it seems, has come to mean a mishap arising out of the operation of a motor vehicle which results in harm of somesort.

I suppose the same event may be an accident or not depending on point of view – we may say one party did or omitted to dosomething; at the same time another other party may have had no control, or possibility of control, over the occurrence. [52] Be that as it may, the court concluded that Jagoe was not involved in an accident as contemplated by s.255(3.1), and if he was,he did not cause the accident.

While there was ample authority that “accident”, in a charge of “leaving the scene”, included bothintentional and unintentional collisions, the Court said that because the deceased had deliberately jumped on the hood, it would be an“absurdity” to say that it was an “accident” in the context of s.255(3.1): see par.16. Even if it were to be termed an accident, the courtsaid that the accused’s driving was not the cause in the sense intended by the section. Bell, J.A. states: [13] The literalist approach to statutory

interpretation would render my analysis quite simple. It would unfold as follows. Mr. Jagoe wasdriving a vehicle while the alcohol in his blood exceeded 80 mg. per 100 ml. of blood. The fact he was driving when he should not havebeen was a real or contributing factor to the accident. Because he was on the road and involved in an accident from which death resulted,he should be convicted of this offence, which calls for a maximum penalty of life imprisonment. Surely, such an

interpretation wouldrender s. 255(3.1) of the Code akin to an absolute liability offence. [17] The criminal law permits people to defend themselves from assaults and imminent attacks.

In my view, it would be absurd toconclude that a perfectly sober driver confronted with an attacker on the hood of his or her vehicle causes an “accident” when he or shebrakes to evict the intruder. . . .The removal of an assailant from the hood of the car by braking does not become an “accident” justbecause the driver happens to have over 80 mg of alcohol per 100 ml of blood. [53] At par.10 and 11 the court interprets s. 255(3.1) to mean that the unlawful driving (over 80) be a “real factor” in causing the“accident” which is the subject of the charge. [54] In R. v. Karafa [2014] O.J.

No. 2545 Trotter, J. put matters this way: [111] In R. v. Rhyason (2006), 2006 ABCA 367 , 214 C.C.C. (3d) 337 (Alta. C.A.), aff'd (2007), 2007 SCC 39 , 221C.C.C. (3d) 1 (S.C.C.), the Court of Appeal considered the trial judge's reasons in a case involving impaired driving causing death. Itwas argued that the trial judge's reasons conflated the concepts of impairment and causation. In rejecting this argument, McFayden J.A.said at p. 348-349: In applying the test for causation, the trial judge took account of a number of factors.

These included the good road conditions, theabsence of any visibility obstructions for a driver travelling in the direction the appellant had travelled, the absence of marks to suggestbraking, and the pedestrian's placement in the middle of the intersection when he was struck. He concluded that there was no evidencethat the pedestrian himself showed signs of impairment when he crossed the street, was distracted by using a cell-phone, or darted intothe crosswalk. He noted that there was no reason why the appellant should not have seen the pedestrian.

In fact, the evidence was thatthe appellant did not see the pedestrian or did not see him in time to yield. From all this evidence the trial judge was convinced beyond areasonable doubt that the appellant's impairment contributed more than de minimis to the pedestrian's death. The appellant's argument about tautological reasoning cannot be sustained. It ignores that fact that the offence itself is impaired drivingcausing death.

Where, as here, there is evidence to support a conviction beyond the fact of the accident, and no evidence to suggest areason for the accident other than impairment, it is not an error to take account of the circumstances of the accident to establish bothimpairment and causation. Again, there is considerable authority for the proposition that, absent other explanations for the accident,

causation can be established from evidence that includes the circumstances of the accident itself, see e.g., R. v. Larocque, (1988), 5M.V.R. (2d) 221 (Ont. C.A.), 1988 CarswellOnt 22; R. v. White (1994), 1994 NSCA 77 , 130 N.S.R. (2d) 143, 28 C.R. (4th) 160at 173 (N.S. C.A); R. v. Laprise (1996), (QC CA), 113 C.C.C. (3d) 87 at 93-4 (Que. C.A.).

Here the evidenceprovided no other explanation for the accident (such as an animal crossing the road or the driver suffering a momentary lapse because hewas playing with the car radio.) In particular cases, such evidence could raise a reasonable doubt about whether the driver's impairmentwas more than a de minimis cause of the accident. Absent such other explanations, the trial judge's conclusion about causation was not inerror. [55] Based on the admission of one breath reading and an expert’s extrapolation to the time of driving, the court found that Karafawas driving “over 80”.

Trotter, J. then states: [116] More is required for the offence under s. 255(3.1), which provides: s. 255(3.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in death of another isguilty of an indictable offence and liable to imprisonment for life. [emphasis added] The causation requirement under s. 255(3.1) (causing death while being "over 80") is slightly different from the link required in s. 255(3)(impaired driving causing death).

While the latter requires that the death was caused by impaired driving, s. 255(3.1) requires that anindividual, being in a state of "over 80", causes an accident and that death ensues from the accident: see R. v. Jagoe (2012), 2012 NBCA72 , 302 C.C.C. (3d) 454 (N.B.C.A.). In this case, it was conceded that the collision caused Mr. Chiang's death. This conclusion is inescapable. For the reasons provided in thepreceding part, I am satisfied that Mr. Karafa's impaired driving caused the accident. At the time, his blood-alcohol level that was atleast 2 1/2 times the legal limit. Mr.

Karafa will be found guilty on this count. [56] In R. v. Koma [2015] S.J. No. 420 the Saskatchewan Court of Appeal interprets the

section to mean that there need only be atemporal link between an accused’s prohibited BAC (over 80) and an accident (the accident having resulted in bodily harm to another);there need not be a causal link between these two elements. [25] Subsection 255(2.1) of the Criminal Code came into force in 2008 and, at the time of the accident in question, stated: 255(2.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in bodily harm to anotherperson is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years. [26] Under the modern principle of statutory

interpretation, a court must give effect to the plain and ordinary meaning of the words usedin a statute when they are read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of thestatute, the object of the statute, and the intention of Parliament (see Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1SCR 27 at para 21 [Re Rizzo]). [27] On a plain and ordinary reading, and in its grammatical and ordinary sense, the wording of the offence under s. 255(2.1) requires theCrown to prove three things beyond a reasonable doubt so as to justify a conviction: (

a) the accused had a blood alcohol concentration of over .08 while operating a motor vehicle or having care or control of a motorvehicle, which is the offence under s. 253(1)(

b) of the Criminal Code; (

b) the accused caused an accident while so operating a motor vehicle or having care or control of a motor vehicle; and (

c) the accident resulted in bodily harm to another individual. On this straightforward reading, the Crown must establish a temporal link between an accused's prohibited blood alcohol concentrationand the occurrence of an accident that has resulted in bodily harm to another, but it need not establish a causal link between those twoelements. [28] This is the

interpretation given to s. 255(2.1) by the judge in this case and by the Court in R v Carver, 2013 ABPC 140, 558 AR 50where Rosborough P.C.J. observed: [60] Subsection 255(2.1) C.C. does not causally link the "underlying offence" of operating a motor vehicle with a proscribedblood/alcohol concentration with the additional element of causing an accident that brings about bodily harm. Rather, it conjoins twoseparate proof elements: (1) proof of operating a vehicle with a proscribed blood/alcohol concentration; and (2) proof that the accusedcaused an accident resulting in bodily harm to a person.

The prosecution must prove beyond a reasonable doubt that the accused causedan accident resulting in bodily harm but there is no requirement of proof that the accused's proscribed blood/alcohol concentration in anyway brought about or contributed to that accident. [29] This observation is well-founded because the plain and ordinary meaning of s. 255(2.1) is not altered by context. Parliament hasused different language to describe the causation requirements for other consequence-related offences involving the use of a motorvehicle.

As Rosborough P.C.J. noted in Carver, the word thereby or its equivalent is conspicuously absent from s. 255(2.1); whereas, asthe judge in this case observed, the offence of dangerous driving causing bodily harm, for example, is committed when an individualdrives dangerously and thereby causes bodily harm.

The absence of thereby or its equivalent from s. 255(2.1) cannot be an oversight byParliament. [30] When Parliament first introduced s. 255(2) in 1985, the offence read: "Everyone who commits an offence under paragraph 253(1)(a)and thereby causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding

ten years" (emphasis added). But in 2008, under the Tackling Violent Crime Act, SC 2008, c 6, Parliament amended s. 255(2) andintroduced s. 255(2.1), and since then the offences have read thus: 255(2) Everyone who commits an offence under paragraph 253(1)(

a) and causes bodily harm to another person as a result is guilty of anindictable offence and liable to imprisonment for a term of not more than 10 years.

(2.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in bodily harm to anotherperson is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

As can be seen, in amending s. 255(2) and introducing s. 255(2.1), Parliament had the issue of causation squarely before it. [31] The absence from s. 255(2.1) of a causal connection similar to that found in s. 255(2) reflects the difficulty of requiring the Crownto prove an individual has caused an accident because he or she was over .08, without the Crown leading some form of expert evidenceas to the effect of blood alcohol concentrations in excess of .08 on that individual's ability to operate a motor vehicle that is causally tiedto the accident in question.

However, this kind of evidentiary difficulty does not arise in cases of impaired driving or dangerous drivingwhere objective indicia of an individual's impairment or recklessness provide an evidentiary basis for a court to conclude the causes ofan accident might include an inability to operate a motor vehicle brought on by impairment, negligence or recklessness. For this reason,the causation element of the offence of impaired driving causing bodily harm (s. 255(2)) is different.

There, the Crown has to prove acausal link between an individual's impaired operation of a motor vehicle and bodily harm to another person. [32] Thus, for a conviction to lie under s. 255(2.1) of the Criminal Code, I conclude the Crown must prove beyond a reasonable doubtthat an individual, while operating a motor vehicle or in care or control of a motor vehicle, had a blood alcohol concentration exceeding80 mg of alcohol in 100 mL of blood and the individual caused an accident that resulted in bodily harm to another; but, s. 255(2.1) doesnot require the Crown to prove the individual's over .08 blood alcohol concentration caused the accident.

The judge made no error whenshe concluded similarly. [57] In R. v. Devarajah [2015] A.J. No. 668 (QB) the accused was charged both with impaired driving causing bodily harm, unders.255(2) and with causing an accident resulting in death to another person while impaired, under s.255(2.1). [58] Considering causation as related to the s.255(2) charge, the court adopted the analysis in R. v. Bekkers [2012] BCSC 471. According to Bekkers it must first be proved that the accident was caused by the faulty driving of the accused.

The Crown need onlyshow that the driving was negligent, below the standard of care of a reasonable driver. The necessary degree of causation is establishedby showing that the negligent driving was a significant contributing cause. Secondly, Crown must show that the negligent driving itselfwas caused by the impairment by alcohol of the accused’s driving ability. Again, the causation must be above de minimus, but need notbe the sole or even substantial cause of the accident. Bekkers has been adopted in R. v.

Flight, 2014 ABCA 185 and elsewhere. [59] Turning to the 255(3.1) offence the court said at par. 93 that this offence does not require proof that the accused’s ability tooperate a vehicle was impaired by alcohol at the time the accident was caused.

In other words the second factor in the Bekkers test,above, need not be proven in relation to a 255(2.1) or (3.1) offence. (iii) Conclusion on 255(2) and (2.1) [60] I do not think that the change of wording for s.255(2) altered the offence. “Causes bodily harm as a result” and “thereby causesbodily harm” both create a direct cause-and-effect link between a state of impairment and ensuing harm.

To say that impaired drivingcauses bodily harm and that impaired driving results in bodily harm is to say essentially the same thing. [61] To me, the Bekkers analysis, above, is a clear and logical approach to the issue of causation under s.255(2). The harm shouldfollow from the faulty driving – something the driver did, or did not do but should have.

If the driving act or omission is itselfattributable, in some significant sense, to the driver’s state of intoxication then it is fair to conclude that the intoxication caused the harmand to attribute blame. [62] In regard to the newer provisions, put simply, sections 255(2.1) and (3.1) take

an act of civil negligence and make it a criminalone if, when the negligent act is committed, the accused is also driving “over 80”. (iv) Leaving the scene [63]

Section 252 makes it an offence to leave the scene of an accident with intent to escape liability for it. A person is required tostop, provide identification and render assistance. One is presumed by subsection (2) to have attempted to escape liability by failing tostop, but this presumption does not apply where there is “evidence to the contrary”. [64] In R. v. Adler (SK CA), 59 C.C.C. (2d) 517 (Sask.C.A.) the court concluded that evidence of impairmentand unresponsiveness can constitute “evidence to the contrary”: [17] . . .

In my respectful view, while Section 233(3) places an onus on the accused, that onus may be discharged upon a review of allrelevant evidence. The learned trial judge found that the appellant was under the influence of liquor at the time of the accident andimmediately after the accident; that when asked if he was all right did not answer; when asked for a kleenex for the injured person, heprovided a rag; that he got out of the vehicle, walked to the Zweifel vehicle, stopped and said, "What do you figure?".

He then left thevehicle and walked to his residence a few blocks away where he was shortly thereafter apprehended. [65] From R. v. Rowlings [2015] N.S.J. No. 540 (NSSC): [31] The appellant argues that the trial judge's decision with respect to the mens rea for the offence of failing to stop at the scene of anaccident was unreasonable or not supported by the evidence. In R. v. Sadler, 2008 BCCA 491, Justice Smith (Prowse and Tysoe, JJ.A.concurring) stated as follows concerning the elements of this offence:

[27] It is common ground that the appellant committed the actus reus of the offence by leaving the scene of the accident withoutoffering assistance to the injured parties and without giving them his name or address. The mens rea for s. 252 requires proof beyond areasonable doubt of an accused's specific intent to escape civil or criminal liability.

This mens rea requirement is distinct from themodified objective test used to establish the mens rea for the offence of dangerous driving. [28] Section 252(2) creates a rebuttable presumption that an accused intends to escape civil or criminal liability by leaving the scene ofan accident. Evidence to the contrary that is not rejected by the trier of fact may rebut that presumption. Case law interpreting this sectionconfirms that "evidence to the contrary" does not shift the burden of proof to an accused.

Rather, it provides a basis whereby evidencewhich tends to show that an accused may not have possessed the specific intent required will support an acquittal verdict. See R. v.Proudlock, (SCC), [1979] 1 S.C.R. 525; R. v. Baker (2006), (ON CA), 209 C.C.C. (3d) 508 (Ont.C.A.), lv to appeal refused, [2006] S.C.C.A. No. 464; R. v. Nolet (1980), 4 M.V.R. 265 (Ont. C.A.); and R. v. Adler (1981, (SK CA), 59 C.C.C. (2d) 517 (Sask. C.A.).

In contrast, evidence of impairment that does not amount to substantial or advancedintoxication will not be sufficient, on its own, to negate the presumption of specific intent for the purpose of rebutting the presumption ins. 252(2): R. v. Lemouel, (NWT SC), [1989] N.W.T.R. 3 (S.C.); R. v. Ford,[1997] O.J. No. 220 (Ct. J. (Gen. Div.);and R. v. Daley, 2007 SCC 53 , 3 S.C.R. 523. THE TIME OF DRIVING – PROOF AND PURPOSE [66] With the first of the breath samples obtained at 13:57, the time of 11:57 becomes critical in the matter of proof. If the collisionwas after that time s.258(1)(

c) creates a legal presumption that the BAC of the accused at the time of driving was 160 mg/100ml. This isthe so-called “presumption of identity”. [67] I find, on the very cogent evidence of Ms. MacKillop, that the time of the driving incident she observed in Wagmatcook was11:55, plus or minus a minute or two.

As noted, the Crown argues that together with other evidence it proves another sort of identity, i.e.that this was the same car and driver involved in the subsequent collision at South Haven. [68] The defence argument calls upon me to consider the possibility that the accused, at the time of the incident in Wagmatcook,was elsewhere in a similar vehicle. Ms. MacKillop was able to recognize the model of the vehicle because there were a number of themin her parking lot at work.

This very fact lends some support to the view that there may have been more than one such vehicle on theroad, particularly on a busy highway. As well, one considers whether there might be different shades of blue for this vehicle overdifferent model years. [69] One could approach the evidence from a number of directions. I will begin with the evidence from Newell that he received acall on his radio from dispatch at about 12:20, and the assertion from Kuchta in the Agreed Statement that the call was received at“approximately 12:22” (use of “approximately” here suggests that he could not pinpoint it to the second).

I will settle on 12:20 as thetime that dispatch notified police. [70] It seems likely that this dispatch resulted from MacPherson’s call to 911. I might assume, but it is not absolutely clear that thesetwo communications happened at virtually the same time. There might be some period between the call to 911 and the dispatch topolice. From the evidence I take it that MacPherson made the 911 call shortly after arriving on scene, but there was at least a briefinterval when his vehicle stopped, backed up, and they checked on the injured party.

The next question which arises is: how long afterthe incident did MacPherson happen upon the scene? [71] I here note that the time the accused’s vehicle was spotted in Port Bevis, after the collision, is of little assistance here. Newell,having received the dispatch, apprehended the vehicle while en route to South Haven, but there is no evidence how long it took theaccused to drive there.

Nor is there any evidence how long it took her to drive to the spot where she was seen by MacNeil, parked on theside of the highway, near the Church. [72] Approaching the evidence from another direction, if the blue Mazda 3 seen in Wagmatcook, driving erratically as did the carwhich struck Ms. Devison, was indeed the accused, and if her speed and pattern of driving were similar to that of Newell when he did histest drive, this would put her at South Haven at 12:15, more or less, which time conforms reasonably well with the evidence noted above. [73] Other evidence of times, from other witnesses, is less useful.

MacPherson could only say that he arrived between noon and 1:00p.m. He did not specify a time for the 911 call; that can only be inferred. He said the ambulance arrived about 5 to 10 minutes after hiscall, but Carey, who said she arrived on scene between 12:20 and 12:25 said that the ambulance came 10 to 15 minutes after that. McLaine says she arrived there between 12:00 and 12:15. MacPherson does not say how long after his arrival the other personsappeared. [74] I should pay some regard to the features of this highway.

The Trans Canada, #105, is one of two principle routes for trafficbetween the main population area in Cape Breton and the mainland of Nova Scotia. Additionally it is a road frequently driven by peoplewho live and work in the area where the events of this trial unfolded. There are no statistics before me such as overall traffic volumes,variations between days or times, etc. However, this is not an isolated road. It is a main thoroughfare.

While I do not know how manycars would, on average, be on this highway on a Sunday morning in March, my general knowledge of the area leads me to think that it isnot implausible that two cars of similar make and model might be travelling somewhere between River Denys and South Haven at thatsame time. I am also aware that other highways feed into the Trans Canada between River Denys and South Haven. This bolsters thepossibility that there were two blue Mazdas, not one. This tends to undermine the Crown theory that the collision occurred after 11:57.

At the same time, this same knowledge leads me to think that it is highly unlikely that a person would be lying on the pavement, in broaddaylight, for any appreciable length of time before a motorist stopped to render assistance or call 911. This supports the view that thecollision occurred shortly before 12:15. [75] There are two aspects of the evidence, two potential findings of fact, which are inextricably linked. First is whether thecollision, and hence the time of driving, was after 11:57. Second is whether the car and driver at Wagmatcook and the car and driver at

South Haven were one and the same. If this latter point is proven then the collision must have been after 11:57, for it is simplyimpossible to drive from Wagmatcook to South Haven in 2 minutes. All the various features of the evidence, which I have summarizedabove, bear on these determinations. [76] In R. v. Redford [2014] A.J. No. 1157 the Alberta Court of Appeal distinguishes proof of facts according to their importance tothe case. For the most part preliminary facts, non-essential facts, need only be proven on a balance of probabilities.

However where thefact is a “vital issue”, which may have a determinative effect on the verdict, or upon proof of an essential element of an offence, it mustbe proven beyond a reasonable doubt. While the Court says that such facts are few, a finding which would invoke a legal presumption isamong them – see par. 13 to 17. From this analysis I conclude that because identification of the accused as the driver of the blue Mazda3 in Wagmatcook would trigger the “presumption of identity” in s.258(1)(c), it is a vital fact which must be proven beyond a reasonabledoubt.

In a similar sense, if the evidence from Wagmatcook and the other evidence in the case, taken together, prove beyond areasonable doubt that the time of driving was subsequent to 11:57, the Crown will have proven an essential element of the charge unders.255(2.1). [77] Does the time of driving in Port Bevis, subsequent to the collision, have any significance in the case? As noted in the

summaryof Constable Newell’s evidence, he did not state the time he sighted the car, arrested the accused, etc. However, Const. Francis gavesome times for his arrival at Port Bevis. Newell said he got the dispatch at 12:20 and that it took him about 15 minutes to drive to thespot at Port Bevis where he sighted the accused driving her damaged vehicle. There is very strong evidence that the driving at PortBevis was subsequent to 11:57 and hence within two hours of the first breath sample. [78] The accused, however, was not charged with “over 80” simpliciter under s.253(b). Had she been, the effect of s.258(1)(

c) andforegoing evidence of the driving time at Port Bevis would warrant a finding of guilty. It is an interesting question whether a courtcould, applying the presumption, make a legal determination of her BAC at Port Bevis – it would be presumed to be 160 – and then usethat presumed BAC to infer what the BAC, or her state of impairment was somewhat earlier at South Haven.

Perhaps this would beunfairly “leveraging” the presumption against the accused, essentially bringing a measured BAC two hours closer to the driving time, butin any event it does not arise here for decision. [79] Is the driving at Port Bevis continuous with the conduct at South Haven? While part of one transaction, in a sense, I don’t thinkit would be proper to convict the accused with an included offence (s.253(

a) or (b)) based upon the driving in Port Bevis. The place ofoffence is described in the Information as being South Haven. The allegations concern the accused’s driving, and the accused’s state inthe seconds prior to her striking Ms. Buffett. It would be unfair to regard the driving from South Haven to Port Bevis as one parcelcontaining all the charges.

The case was predicated and defended on the driving at the time of the collision, and should be decided thatway. [80] In conclusion on this point, I am not convinced beyond a reasonable doubt that the accused struck the complainant subsequentto 11:57. [81] It follows that the Crown cannot avail itself of the presumption in s.258(1)(c). It is thus unable to prove the “over 80” elementof the s.255(2.1) offence and the accused will be found not guilty on this count. [82] On this same evidence, I am trying the accused on the s.255(2) charge.

Proof that it was one and the same car and driver inWagmatcook as in South Haven is not determinative proof of any essential element of the offence of impaired driving causing bodilyharm. Showing that it was the accused who drove erratically in Wagmatcook would constitute but one piece of inculpatory evidence onthat charge. I find that this fact has been proven on a balance of probabilities. Entailed in this is a finding of fact, again on a balance ofprobabilities, again having considered all the relevant evidence, that the time of the collision was at approximately 12:15.

This brings nopresumptions into play, but it does factor into my conclusions on whether the evidence meets the requisite burden of proof on theultimate issue of guilt on the charge of impaired driving causing bodily harm. JUDICIAL NOTICE and INFERENCES [83] The following cases inform the view that I am able to assume some general knowledge of how alcohol is metabolized and toapply this to the issue of impairment. In particular it informs the potential significance of the BAC readings. [84] In R. v. Paszczenko; R. v. Lima 2010 ONCA 615 , [2010] O.J.

No. 3974 the Ontario Court of Appeal heard caseswhere the central issue concerned the manner in which the Crown must prove the facts underlying the four assumptions upon whichexpert toxicology reports are based. In both instances on appeal, the breath samples were obtained outside the two-hour time period, theCrown thus losing the benefit of the “presumption of identity” set out in s.258(1)(

c) of the CCC. In both cases a report of a toxicologistwas filed as an expert report in accordance with s.657.3. [85] The four common assumptions were set out at par.2 as follows: (

i) no "bolus drinking", i.e., no rapid consumption of large amounts of alcohol shortly prior to the incident; (ii) no consumption ofalcohol between the incident and the breath test; (iii) an "elimination rate" of 10 to 20 milligrams of alcohol in 100 millilitres of blood perhour; and (iv) a two-hour "plateau" after drinking where the rate of elimination does not change. [86] As with any expert opinion, assumptions contained within them must be substantiated (see par.21). However the courtdistinguished between two types of assumptions and said, as to proof: [23] . . .

In the toxicology report context, this distinction has been described as the difference between "foundation facts" that must beproven in evidence (bolus drinking and post-incident drinking have been held to fall into this category), and information acted upon byan expert obtained as a result of his or her expertise (the elimination rate and plateau assumptions have been held to fall into thiscategory). I agree with this distinction and accept as accurate the following statement . . .

It is also well established that an expert is entitled to rely on information that is widely used and acknowledged as reliable within thatfield and that is employed as an accepted means of making decisions within that area of expertise: see R. v. Zundel (1987), (ON CA), 31 C.C.C. (3d) 97 (Ont. C.A.) at 146; R. v. Lavallee, supra, per Sopinka J., concurring, at 132; R. v. Terceira (1997), (ON CA), 123 C.C.C. (3d) 1 (Ont. C.A.) at 37-39. This information may form a basis for the expert's opinion without anyneed to lead evidence to support it. [87] Later the court said [26] . . .

I conclude, therefore, that in the absence of a challenge to the expert, assumptions 3 (the elimination rate) and 4 (the plateau)need not be proved by case-specific evidence led at trial to support them, other than the expert's toxicological report filed pursuant to s.657.3 of the Code. Assumptions 1 (no bolus drinking) and 2 (no post-incident drinking) require case-specific proof. [88] With regard to the “plateau” and “elimination rate” assumptions, the Court at par.42 et seq concluded that these were well-established in case law and scientific literature.

They were thus not mere assumptions but rather assertions of scientific knowledgewhich need not be specifically proven. [89] While it was “technically unnecessary” to resolve a debate in the lower courts about whether courts could take judicial notice ofthese assumptions, Blair J.A. went on to say: [61] I am inclined to the view, however, that courts are entitled to take judicial notice (

a) of the fact that the majority of human beingseliminate alcohol in a range of 10-20 milligrams of alcohol per 100 millilitres of blood per hour, and (

b) of the fact that, after risingrelatively quickly during the first 30 minutes or so after the last drink, a person's BAC generally hits a plateau for a period of up to twohours during which time the absorption rate and the elimination rate remain about equal and the BAC neither rises nor falls.

I think thisview is consistent with the evolving jurisprudence and with the experience of hundreds of trial judges across the country. [90] At par.66 Blair J.A. states “I see no impediments to judges taking judicial notice of both the “plateau” and “elimination rate”assumptions underlying expert toxicologist’s reports” [91] The court also spoke about “bolus drinking”, which means the consumption of large amounts of alcohol immediately or shortlybefore driving. It can create a situation where an extrapolation back to the time of driving is inaccurately high because at the time ofdriving the BAC was still rising.

Taking up the typical assumption of “no bolus drinking” the court says at par.28: “In establishing thatan accused has not engaged in bolus drinking, the Crown is in the unenviable position of having to prove a negative.” Referencing anearlier decision of the court, Blair, J.A. says at par.29 that “triers of fact may resort to a common sense inference in such circumstances,namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving. . . . ‘no bolus drinking’ is thereforelargely a matter of common knowledge and common sense about how people behave.” [92] The court describes the rationale for this approach as the imposition of a practical evidentiary burden on the accused.

Withoutimposing a persuasive burden, it does call upon the accused to simply point to some evidence on the basis of which it can be said that theissue of bolus drinking is alive on the record. [93] In R. v. Kisten [2015] O.J. No. 6918 Taylor, J. was asked to take judicial notice of certain scientific facts and to do thecalculations which were needed to relate the blood alcohol levels at the time of testing back to the time of driving.

He found that theintoxilyser tests were not taken “as soon as practicable” and hence the Crown lost the so-called “presumption of identity” of the readingsas between the two relevant times. No expert had been called to extrapolate the readings back in time. The trial judge referred toPaszczenko, supra and a subsequent decision in R. v. Bonifacio [2013] O.J. No.586 to support the view that the court could take“judicial notice” of all four of the assumptions described in Paszczenko, thus going beyond what that judgement contemplated.

What thecourt meant by “judicial notice” is somewhat unclear because the court then went on to ask whether the Crown had proven the fourassumptions (see para.17). In regard to the possibility of bolus drinking the court found nothing on the evidence to suggest it. Then,“using the most favourable calculations to Mr. Kisten, while it is difficult to calculate his exact blood alcohol concentration given thevarying elimination rates, there is no doubt that his blood alcohol concentration at the time of driving would have been well in excess ofthe limit of 80 mgs/100 mls.” [94] In R. v. Cole [2015] S.J.

No. 566 the presumption of identity was again unavailable to the Crown. There the trial judgedeclined to take judicial notice of the elimination rates and the plateau effect and then proceed to calculate the possible BAC of theaccused at the time of driving. The judge perceived an “essential difference” between the case before it and cases such as Paszczenkoand Bonifacio. At par.[44] s/he states “The essential difference in the within case is the Crown did not call an expert.

Without theexpert’s report, I am not prepared to take judicial notice of the elimination rates and plateau principle and then engage in calculations thatI have no expertise.” The case report concludes with a finding on the “over 80” charge; there is no discussion of the 253(

a) impaireddriving charge. [95] In R. v. Stennett [2016] O.J. No.2599 the accused struck a vehicle from behind on Highway 401 near Toronto. Police arrivedon scene noticed a smell of alcohol emanating from the accused, and watery eyes. The accused failed a roadside screening test, wasarrested and taken to the OPP detachment. Upon arrival, about 30 minutes later, he was displaying other indicia of impairment such asunsteadiness. He was rearrested for impaired driving, presented to a technician, and provided two samples which analyzed at 172 and166 mg per 100 ml of blood. [96] The Crown was unable to rely on the presumptions in s.258 (1)(

c) of the Criminal Code because it could not prove that thesamples were taken within two hours of the collision. Instead, it filed a report from a toxicologist, admitted by consent for the truth of itscontents. This expert report made a number of assumptions, some relating to the facts of the particular case, some relating to humanphysiology. One assumption, that the driving occurred within a particular 5-minute interval, was not borne out by the evidence at trial. Consequently the toxicologist’s conclusions about the accused’s blood alcohol levels at the time of driving did not pertain.

Crowncontended that the court could nevertheless, from the evidence, ascertain the earliest possible time of driving. Although the expert did

not set out in the report the calculations she used to arrive at her conclusion, Crown argued that the court could take judicial notice of themethod, proceed to do its own “retrograde extrapolation”, and thus ascertain the blood alcohol level at this earliest possible time. Crowncontended that this would prove that the accused’s BAL was over the legal limit of 80. The Crown urged the court to adopt theassumptions of the expert as to (

a) elimination rates, (

b) the “plateau” effect, (

c) no “bolus drinking”, and (

d) no consumption in theinterval between the collision and the testing, and proceed from there to perform its own calculation. [97] In other words, the Crown argued that the court, having arrived at a different “time of driving” than that assumed by the expert,apply the other presumptions outlined in the expert’s report, take judicial notice of the methods she employed, and calculate theaccused’s BAL at this different time. [98] The court declined to make this calculation.

At par.16 it refers to a series of cases in which courts have undertaken suchcalculations, and another series in which the courts have declined to do so. Schreck, J. aligned himself with the latter view, saying thathis reasons were “based on the law respecting judicial notice and expert evidence, concerns about the reliability of my own calculations ,principles of statutory construction and the proper role of an impartial tribunal.” He then expounds on each of these four areas beforeconcluding that “there is no evidence as to Mr.

Stennett’s BAC at the time he operated a motor vehicle.” [99] The court was left to deal with the impaired driving charge.

Here, the expert’s report also contained the statement “based on acritical review of the relevant scientific literature (laboratory, closed-course driving, crash risk assessment) it is my opinion thatimpairment with respect to driving becomes significant at a BAC of 50 mg/100 ml and increases from then onward.” Despite havingreceived this report “by consent for the truth of its contents” the trial judge expressed reluctance to accept an opinion “based onunidentified scientific literature” (see par.34).

Given the lack of indicia of impairment at the time of driving (other indicia only beingobserved well over an hour afterwards) the judge said that basing a conviction for impaired driving on this evidence would betantamount to creating a new offence of “over 50”. [100] While the judge’s reluctance to perform calculations so as to achieve reliable conclusions about a particular BAC areunderstandable and forcefully stated, I am less convinced by some of the reasoning concerning the 253(

a) charge. This is, first of all, aseparate and distinct offence from 253(b). The argument that a certain BAC, or range of blood alcohol concentrations, is evidence ofimpairment is not the same as arguing for a new “legal limit” offence at a lower level. Evidence of something else does not create itsown offence. Regardless, I accept the view that “the Crown must prove impairment by evidence that relates specifically to the accusedbefore the court” (see par 35).

THE SIGNIFICANCE OF THE BLOOD ALCOHOL CONCENTRATIONS [101] “Items of circumstantial evidence are not to be viewed in isolation but the entirety of the evidence must be considered indetermining whether the prosecution has discharged the burden of proof.” – per Hill, J. in R. v. Elvikis [ 1997] O.J. No. 234 at par [26]. In the preceding sentence he referred to possible evidence of impairment as “driving conduct, physical symptomology or physical testresults, or some combination thereof”. If this is not a closed list, then may blood alcohol concentrations be added to it?

May I alsoconsider the BAC of the accused more than 2 hours later, less than 2 hours later? What importance does this have? May I consider theactual levels, higher being associated with a greater degree of impairment? May I note the latter point as a general truism? [102] I will canvass some cases which inform my answers to these questions where the BAC measurements are not connected toimpairment at the time of driving by either (

i) the legal presumption in s.258(1)(

c) or (ii) an expert’s retrograde extrapolation. [103] In R. v. Dinelle [1986] N.S.J. No. 246 (NSCA) Clarke, C.J. stated at the outset of the decision that “the issue concerns the weightgiven by a trial judge, in determining a conviction for impaired driving, to a certificate containing the results of breathalyzer tests.” Towards the conclusion of the judgement he stated that entirely apart from the certificate there was sufficient evidence upon which tobase a conviction – erratic driving, strong smell of alcohol, failure of an ALERT, and fumbling.

The decision never the less has beencited in this jurisdiction and others for what it says about the significance of breath test results on a charge of simple impaired driving. [104] Defence had argued that the trial judge erred in taking the breath test results as a piece of evidence establishing impairment. TheCourt disagreed, saying that the trial judge considered the certificate

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