R. v. Lamoureux, 2019 ONCJ 754

ONTARIO COURT OF JUSTICE CITATION: R. v. Lamoureux , 2019 ONCJ 754 DATE: May 3, 2019 Information No.: 3921-998-17-A97 BETWEEN: HER MAJESTY THE QUEEN — AND — Alex Lamoureux Before Justice Diane M. Lahaie Heard on November 27, 28 and 29, 2018 and April 18, 2019 Reasons released on May 3, 2019 Elaine Evans....................................................................................... Counsel for the Crown P. Mota...............................................................................................

Counsel for the accused LAHAIE, J.: [ 1 ] Alex Lamoureux faces two counts of impaired operation of a motor vehicle causing bodily harm contrary to section 255(2) of the Criminal Code and two counts of operating a motor and causing an accident resulting in bodily harm to another person while the blood alcohol concentration in his blood exceeded 80 mg of alcohol in 100 mL of blood contrary to section 255(2.1) of the Criminal Code . [ 2 ] There was a Charter Application filed in this case and the trial initially proceeded in a blended fashion.

On the second day of trial, defence counsel abandoned the majority of his Charter arguments, asking the Court to only consider his

section 7 argument. The parties were given an opportunity to file additional written submissions on the issue as the argument was novel and not set out with any precision in the Notice of Application. Following brief oral submissions, I would not have found a breach, however I was prepared to allow counsel to present more fulsome arguments in writing. I did not receive further written submissions.

Months after the submissions were due to be filed, the Court received word through trial coordination, the day prior to the fourth day of trial, that defence counsel had chosen to abandon his Charter Application entirely. This was confirmed on the record the following day. [ 3 ] There are three issues to be determined by this Court. Firstly, defence counsel argues that the Crown has not established that the accused caused the collision or accident in this case, to the requisite standard of proof. Secondly, Mr.

Mota argues that impairment in the accused’s ability to operate a motor vehicle has not been established beyond a reasonable doubt given the limited indicia of impairment. Finally, defence counsel argues that the Crown has not established beyond a reasonable doubt that the accused’s BAC was over 80 mgs of alcohol in 100 ml of blood at the time of driving. [ 4 ] The accused enjoys the presumption of innocence. The burden of proving guilt rests solely on the Crown. There is no burden of proof placed on the accused. [ 5 ] The accused testified in this case.

The Court must examine both the credibility of each of the witnesses and the reliability of their evidence. The Court may accept some, all or none of the evidence of any witness. In making findings of fact, I must apply the standard of proof beyond a reasonable doubt. A fact will not be found against the accused unless I am satisfied beyond a reasonable doubt of its existence.

[6] In arriving at my findings, I have directed my mind to the decision of the Supreme Court of Canada, in the matter of R. v. W.(D) (1991), (SCC), S.C.J. No. 26, which sets out the well-established standard to be applied by a trial court whenassessing credibility. Where the Court believes the evidence of the accused, obviously, the Court must acquit. If the Court does notbelieve the testimony of the accused but is left in reasonable doubt by it, the Court must acquit.

Finally, even if the Court is not left indoubt by the evidence of the accused, the Court must ask whether, on the basis of the evidence which the Court accepts, the Court isconvinced beyond a reasonable doubt by that evidence of the guilt of the accused. [7] The mens rea for impaired driving is the intent to operate a motor vehicle after voluntarily consuming alcohol. The actus reusis the act of operating a motor vehicle when the voluntary consumption of alcohol has resulted in impairment of the ability to drive (R. v.Toews, (SCC), [1985] S.C.J.

No. 48). [8] The impairment of one’s ability to drive is generally understood as meaning the impairment of one’s judgment and the decreasein one’s physical abilities. Evidence which establishes any degree of impairment in that ability, if proved beyond a reasonable doubt, issufficient to sustain a conviction (R. v. Stellato, (SCC), [1994] S.C.J. No. 51, affg (ON CA), [1993]O.J. No. 18 (C.A.). [9] Where the accused does not challenge the test results, but invokes his own unusual behaviour, the accused will, as was the casehere, call evidence in that regard. As the Supreme Court of Canada noted in R. v.

St-Onge Lamoureux, 2012 SCC 57 , [2012]S.C.J. No. 57 at paragraph 90: It is the accused – and not the prosecution – who knows when he or she drank, and how much. What is more, it is also the accused –and not the prosecution – who would decide to analyze his or her capacity to absorb and eliminate alcohol, and to adduce evidence in thisregard.

I do not therefore consider it unduly onerous to require the person who has this information and is in a position to tender relevantevidence to show not only that he or she had a “last drink”, or drank after being pulled over, but also that the difference resulting fromthat consumption is relevant to the determination of his or her guilt or innocence. [10] In the St-Onge Lamoureux decision, the Supreme Court of Canada viewed con​sumption of large amounts of alcohol just prior todriving as “unusual behaviour” and concluded that the cases in which such a defence is raised “should be rare” as the evidence wouldsignal “either significant irresponsibility with regard to public safety or a pathological reaction by the accused”. [11] During this trial, I heard the evidence of Edward Dunham, Mallory Boileau, Robert Boileau, Cst.

Chirke, Cst. Desjardins, Cst.Courtel, Cst. MacWhirter and Jean-Paul Palmentier of the Centre of Forensic Sciences. As stated, the accused also testified. The Facts [12] Following my review and consideration of the totality of the evidence, I find the facts to be as follows: [13] On July 23, 2017 shortly before dinnertime, Mr. and Mrs. Dunham were returning to Lancaster from their son and daughter-in-law’s residence in Hawkesbury. They were travelling southbound on Highway 34. Mr. Dunham was driving approximately 90 km perhour in an 80 km per hour zone. While travelling southbound, Mr.

Dunham drove over the overpass for Highway 417 at approximately4:40 p.m. There was a blinking amber light for his direction of travel, just above the area where Highway 34 intersects with the end ofTannery Road leading to and from Herb’s truck stop (on the east side) and the ramps for vehicles entering Highway 417 to proceedeastbound and those exiting Highway 417 (to the west). Mr. Dunham had not yet reached the blinking amber light. [14] This intersection requires drivers to pay attention to the complicated configuration of traffic.

Drivers exiting Herb’s andtravelling on Tannery Road towards Highway 34 are facing west when they arrive at the stop sign just before entering onto Highway 34. The light which blinks amber for the drivers on Highway 34, blinks red for those exiting Tannery Road. Drivers exiting the ramp fromHighway 417 to Highway 34 are facing east when they arrive at the stop sign and a blinking red light at the end of the ramp. Vehiclestravelling northbound and southbound on Highway 34, a two-lane highway, may travel up to 80 kms per hour; these drivers have theright of way. [15] At approximately 4:40 p.m., Mr.

Lamoureux drove towards the stop sign at the end of Tannery Road, having left Herb’s. Hiswife and 2 pre-school aged children were passengers in the vehicle with him. Mr. Lamoureux turned right but then turned into thesouthbound lane in which Mr. Dunham was driving. It appeared to Mr. Dunham that, although Mr. Lamoureux’s vehicle was turningright, the driver seemed to change his mind as though wanting to go towards the ramp to Highway 417. Mr. Dunham tried to avoid acollision by turning his steering wheel to the right but Mr. Lamoureux’s vehicle drove into Mr. Dunham’s car, causing Mr.

Dunham’svehicle to flip over and travel across Highway 34 ultimately landing upright on its collapsed wheels in a field, east of Highway 34. Mr.Lamoureux caused this accident. [16] Following the collision, Mr. Lamoureux continued to drive over 200 feet towards the overpass until he finally pulled over at anarrow portion of the shoulder of the overpass. [17] Robert and Mallory Boileau were travelling from Cornwall via Highway 138 and then Highway 417 Eastbound with their threechildren.

They had just exited Highway 417 and were preparing to turn north onto Highway 34, when they observed a cloud of dustfrom the accident. Ms. Boileau, who was driving, immediately pulled over onto Highway 34. The couple agreed that they should stop toassist the occupants of the vehicle in the field. Ms. Boileau told her children to remain in the car as she and her husband crossed thehighway to assess the situation. [18] Mr. Boileau went into the field to assist. Ms. Boileau did not enter the field as she was wearing heels. She asked her husband toreport what was happening. When Mr.

Boileau told her what he was seeing, Ms. Boileau went to her car to retrieve a first aid kit. Shealso called 911. Her first call to 911 was placed at 4:43 p.m. The Bluetooth system in Ms. Boileau’s car was preventing her fromcommunicating effectively with the dispatcher. She called back a number of times with the last call being completed shortly after 5:00p.m.

[ 19 ] Mr. Boileau and another gentleman, who had parked near Mr. Boileau on the highway, tried to assist Mr. Dunham and his wife. Mr. Dunham was in and out of consciousness. Mrs. Dunham was visibly injured but managed to get out of the car. First responders arrived. Paramedics transported Mr. and Mrs. Dunham to the hospital. I will review their injuries below. It is not in dispute that both Mr. and Mrs. Dunham suffered bodily harm. Their injuries were not transient or trifling in nature.

In fact, they suffered significant injuries which interfered with their physical integrity and well-being. [ 20 ] Several minutes after the collision, the accused exited his vehicle and walked to the side of the road where people had gathered and were watching the scene in the field. Mr. Lamoureux did not telephone police. Upon learning from Mr. Boileau that they had called the police, the accused, who stood on the side of the road at that point, told Mr. and Ms. Boileau that he was the driver of the second vehicle involved in the accident. Mr. Lamoureux claimed that he was not at fault.

He also laughed at times as he spoke, which struck Ms. Boileau as being strange in the circumstances. Further, the accused stated that he did not see what happened because he was driving, which also struck both Mr. and Mrs. Boileau. [ 21 ] While officers tried to assist Mr. and Mrs. Dunham, Cst. Chirke arrived on scene. He asked who the driver of the Blue Civic was. The accused identified himself as the driver of that vehicle. At 5:21, Cst. Chirke took a statement from the accused, who was seated in the rear of the officer’s cruiser. Both the officer’s door and the door to the back seat remained open.

There was a plexiglass window dividing the front and back seats of the cruiser. [ 22 ] When he attended the rear of his cruiser to review the statement with the accused and have him sign it, the officer detected an odour of alcohol on the accused’s breath. He asked Mr. Lamoureux whether he had consumed alcohol and the accused replied that he had had a beer at noon. [ 23 ] At 5:44, Cst. Chirke made the demand for a sample of the accused’s breath into an ASD. The officer self-tested and determined that the ASD was in proper working order.

At 5:45, the accused provided a sample of his breath into the device, registering a fail reading. The accused was placed under arrest for operating a motor vehicle while his BAC exceeded 80 mg of alcohol in 100 mL of blood. He was handcuffed, searched and placed in the rear of the cruiser. He was advised of his rights to counsel and cautioned in English and stated that he understood and did not wish to speak with counsel. The demand to provide a sample of his breath into the Intoxilyzer was made at 5:52. The timing of each of the steps at roadside is not in issue. [ 24 ] The accused was turned over to Cst.

Courtel for transport. Cst. Courtel repeated the accused’s rights and caution in French as the accused addressed this officer in French. Cst. Courtel detected an odour of alcohol on the accused’s breath. Ultimately, the accused was turned over to Cst. McWhirter, a qualified breathalyzer technician. Mr. Lamoureux provided two samples of his breath into the Intoxilyzer 8000C which registered readings of 111 mg of alcohol in 100 mL of blood and 102 mg of alcohol in 100 mL of blood at 7:14 p.m. and 7:36 p.m. respectively. [ 25 ] Cst.

Courtel served all of the required documentation on the accused as well as a POA ticket for an improper right turn. The Evidence [ 26 ] I will now set out a

summary of the evidence of each of the witnesses as well as my assessment of their testimony in light of the totality of the evidence presented. [ 27 ] Edward Dunham was born on May 30, 1947. On July 23, 2017, he and his wife went to visit their son and daughter-in-law in Hawkesbury. They stayed for lunch and played with the grandchildren. Mr. Dunham does not drink alcohol. He had a soda with lunch. Mr. Dunham testified that he and his wife left shortly before dinner intending to travel back to their home in Lancaster, which usually takes approximately 45 minutes. Mr. Dunham drove southbound on Highway 34.

He recalled that it was a sunny day and that the roads were fine. [ 28 ] Mr. Dunham testified that the speed limit on Highway 34 is 80 kms per hour and that he was driving at a speed of approximately 90 kms per hour. As he travelled on the overpass, over Highway 417, Mr. Dunham observed the accused’s vehicle turning right on Highway 34 coming out of Herb’s. Mr. Dunham, who would later be taken from the scene by ambulance and never saw the vehicle that struck him again, recalled that the accused drove a blue Honda Civic. [ 29 ] According to Mr. Dunham, the accused seemed to “change his mind” and came into Mr.

Dunham’s lane of traffic. I note that Mr. Dunham’s location at that time would have been near the entrance to the ramp leading to the eastbound lanes of Highway 417. [ 30 ] Mr. Dunham testified that he swerved to the right to try to avoid the Civic in his lane as there was no time to apply the brakes and avoid a collision, but that the accused’s vehicle caught the back of his car and propelled his vehicle across the highway into the field to the east of highway 34. Mr. Dunham thought his car flipped 3 or 4 times before it landed on its wheels. Both Mr. and Mrs. Dunham were wearing their seatbelts.

When the vehicle came to rest, Mr. Dunham was having difficulty breathing. He lost conscious​ness for a period of time and when he awoke, he realized that he was outside the vehicle; a Constable held his head as Mr. Dunham laid flat on his back. [ 31 ] Both Mr. and Mrs. Dunham were transported to the hospital from the scene. The Court received their medical records, which were filed as exhibits on consent. Mr. Dunham suffered fractured ribs and had extensive bruising on his back and shoulders. Mrs. Dunham had a large lump on her head.

She suffered a concussion and has been diagnosed with postconcussional syndrome and post traumatic stress disorder. They both met with a psycho-therapist and Mrs. Dunham met with a physiotherapist. According to Mr. Dunham, his wife has not been the same since the accident. He testified that she has cognitive problems, and that, for a time, she was able to converse “but not very well”. Mrs. Dunham did not feel able to testify at the trial. I received a medical note advising against allowing Mrs. Dunham to testify. [ 32 ] Both Mr. and Mrs.

Dunham were required to move in with their son and his family until October 2017 as they could not manage on their own in their home before then. Mr. Dunham recalled that it took 6 to 8 weeks for his ribs to heal.

[ 33 ] In cross-examination, Mr. Dunham testified that he did not believe there was an amber light over the intersection at the time of this incident, but he confirmed that there is a full working traffic light there now. [ 34 ] Mr. Dunham explained in further detail how he saw the blue Civic turn right from Tannery Road at Herb’s and then “almost like he changed his mind”, that the driver of the blue Civic, pulled into Mr. Dunham’s lane almost like he was going to go to the ramp for Highway 417. [ 35 ] Mr. Dunham was unshaken in cross-examination; he maintained that he did not encroach into the northbound lane.

He reiterated his belief in cross-examination that the car flipped a number of times. He did not believe that the wheels hit the ground until his vehicle finally came to rest. The photographs did not reveal any damage to the roof of his vehicle but the damage to the wheels and base of the car was extensive. The vehicle was inoperable. Mr. Dunham’s version is not inconsistent with the photographs of the vehicles filed in evidence. [ 36 ] Mr. Dunham provided his evidence in a clear and straightforward manner. He was very fair in the presentation of his evidence.

For example, when asked whether the bruising on his shoulders affected his mobility, he answered “slightly”. He was not prone to exaggeration. He did not minimize his evidence in terms of his speed of travel, to conform to the posted speed limit. I accept that he had not consumed alcohol on the date of the incident. He was a candid witness. I found it noteworthy that he recalled and could describe the accused’s vehicle, despite not seeing it again after the collision. [ 37 ] Mr.

Dunham was mistaken in terms of the presence of an amber light above the intersection between Highway 34 and the exit from Tannery Road (Herb’

s) and the entrance and exit of Highway 417. I found Mr. Dunham to be a credible witness. Other than the detail regarding the amber light, I found his evidence reliable. [ 38 ] Mallory Boileau , a social worker and the manager of the Canadian Mental Health Association in Cornwall, was travelling from her husband’s parents’ home in Cornwall with her husband, Robert Boileau and their three children. She was driving. She had taken Highway 138 from Cornwall to Highway 417. She drove east on Highway 417 and took the exit to get to Highway 34, intending to travel north to her home in Hawkesbury. Ms.

Boileau testified that she noticed a lot of dust as she approached Highway 34 and then she noticed the car in the field at Herb’s. [ 39 ] Ms. Boileau confirmed that she had to obey a stop sign upon exiting the ramp from Highway 417 and that people exiting Tannery Road from Herb’s also had to stop at a stop sign. Ms. Boileau also testified that there is a blinking amber light above that intersection for people travelling northbound and southbound on Highway 34. [ 40 ] Ms. Boileau pulled over onto the shoulder of Highway 34, told her children to keep their seatbelts on and walked to the scene with her husband.

She testified that she was wearing heels and did not enter the ditch but that her husband went into the field to try to assist. As Ms. Boileau stood on the side of the road, she received word from her husband about the details of his observations. Realizing that the occupants of the vehicle needed medical assistance, Ms. Boileau went to her car to retrieve her first aid kit. She also tried to call 911 at 4:43 p.m. As the Bluetooth was on in her vehicle, she would speak with dispatch and then the call would drop.

When she realized it was because of the Bluetooth that she was having a difficult time communicating with the dispatcher, she entered her vehicle and spoke to the dispatcher, the last call ending shortly after 5:00 p.m. [ 41 ] Ms. Boileau testified that when she called dispatch originally, she thought this was the scene of a single vehicle accident and then she noticed “the blue vehicle on the bridge that was stopped”. After she had hung up with the dispatcher, the accused spoke with her and her husband and said that he was involved in the accident but that it was not his fault. Ms.

Boileau testified that the accused was laughing quite a bit and that she did not think that was appropriate in the circumstances. Ms. Boileau recalled that the accused said that he did not see what happened because he was driving, which she found strange. She added that hearing the last part of that statement made it “stick out” for her because it was such a strange thing to say. Ms. Boileau observed the accused speaking with others who had gathered at the scene and she overheard Mr. Lamoureux say that he had been at Herb’s with his family. [ 42 ] Ms.

Boileau observed a woman and 2 children exit the accused’s vehicle. She was concerned because the overpass has a narrow shoulder in the area where the woman was removing her children from the car. Ms. Boileau recalled that the fire department attended the scene first, followed by police and then the paramedics. [ 43 ] In cross-examination, Ms. Boileau stated that the accused also entered the ditch. She heard him laughing at the side of the road and while he was in the ditch. According to Ms. Boileau, the accused was speaking coherently. [ 44 ] Ms.

Boileau was a credible independent witness who testified in an honest and frank fashion. She had no motive to fabricate her evidence. She had a clear view of the events as they were unfolding, and she was clear about the moments when her attention was divided. She did not exaggerate and was consistent. I found her evidence reliable. [ 45 ] Robert Boileau , Ms. Boileau’s husband corroborated many aspects of his wife’s testimony. He estimated that Mr. Dunham’s car was 20 to 40 feet from the road, in the ditch facing Highway 34. Mr. Boileau described Mr. Dunham as being incoherent. He testified that Mrs.

Dunham’s head was bleeding and she was shaken up. Mr. Boileau testified that when Mr. Dunham exited the vehicle, he fainted. Mr. Boileau recalled that the police had already arrived when Mr. Dunham fainted. According to Mr. Boileau, the accused exited his vehicle and came towards him approximately 10 to 15 minutes after Mr. Boileau went to assist. He recalled seeing Mr. Lamoureux walk towards his location from the overpass. Mr. Boileau did not recall seeing Mr. Lamoureux enter the ditch. He testified that he spoke with Mr. Lamoureux on the side of the road. At that point, Mr.

Boileau thought this had been a single vehicle accident. According to Mr. Boileau, it was only after he told the accused that they had called police that the accused disclosed that he had been involved in the accident. [ 46 ] Mr. Boileau testified that the accused told him he was the driver and was not at fault. Mr. Boileau testified that the accused said he did not see what was going on because he was driving. According to Mr. Boileau, the accused appeared agitated and was very defensive repeating often that he did not see the gentleman and that the other gentleman cut him off. Mr.

Boileau testified that he did not think the accused went into the ditch but that if he did, he was not there long as he, that is, Mr. Boileau, was in the ditch the majority

of the time until police and paramedics arrived. Mr. Boileau recalled that the man who parked behind him after the accident came into the ditch to help him. Mr. Boileau did not see Mr. Lamoureux’s wife and children exit the blue Civic. When Mr. Boileau learned that Mr. Lamoureux had also been involved in the accident, he asked if he was o.k. and the accused indicated that he was. [ 47 ] Mr. Boileau testified that he and his wife told the first responders that it was a two-vehicle accident once they arrived on scene and advised a police officer where the second vehicle was located. [ 48 ] In cross-examination, Mr.

Boileau readily admitted that the police officer took his statement and his wife’s statement at the same time in the entrance of their home, on September 17, 2017. I did not have any concerns that there was collusion between Mr. and Mrs. Boileau or that their memory was tainted by the manner in which the statements were taken. Each recalled the event differently because their attention was on different areas of the scene at various times. For instance, Ms. Boileau testified that she heard the accused laughing when he was in the ditch whereas Mr. Boileau did not describe laughter and did not recall seeing Mr.

Lamoureux in the ditch. I found both Mr. and Mrs. Boileau to be credible witnesses who provided independent evidence in a clear and forthright manner. They did not try to fill in the blanks in their memory. Where there are differences in their testimony, I find that their observations were accurate but that they, at various times, made their observations from different vantage points, with their attention drawn to different locations. For example, when Mrs. Boileau observed Mr. Lamoureux’s wife and children exiting the blue car, Mr. Boileau’s focus was elsewhere. I found Mr.

Boileau’s evidence reliable. [ 49 ] Cst. Sean Chirke was dispatched to attend the scene of this collision at 5:02 p.m. He arrived on scene at 5:17 p.m. He observed Mr. Dunham’s vehicle in the ditch and Cst. Duchesne and Cst. Desjardins attending to the victims when he arrived. The paramedics had not yet arrived. Cst. Chirke described the highways and intersection. I will not review his evidence in detail as there is no issue as to the configuration of the area. [ 50 ] Cst. Chirke testified that when he approached the Civic, he noticed the damage to the vehicle. Cst.

Chirke testified that he called out asking who the driver of the blue Honda Civic was and that the accused identified himself as the driver of that vehicle. Cst. Chirke requested Mr. Lamoureux’s driver’s license, ownership and insurance telling the accused that he would be gathering information about the collision. According to Cst. Chirke, the accused retrieved his documents from the vehicle without incident. Mr. Lamoureux sat in the back seat of this officer’s cruiser to provide a statement at 5:21. The officer sat in the front seat and the accused sat in the back of the cruiser.

Both doors were open and the front and back seats are separated by plexiglass. [ 51 ] The interview ended at 5:28 p.m. After he filled out the statement form, Cst. Chirke asked the accused to accompany him to the trunk to sign it. When they were shoulder to shoulder, Cst. Chirke smelled alcohol on the accused’s breath. When Cst. Chirke asked the accused if he had consumed alcohol previously during the day, the accused replied that he had had one beer at noon. [ 52 ] Having formed a reasonable suspicion that the accused had alcohol in his system, Cst. Chirke made the roadside screening demand at 5:44 p.m.

There is no issue with respect to what followed. The approved screening device was functioning properly. The accused provided a suitable sample into the device, registering a Fail reading at 5:45 p.m. The device was calibrated to register a fail reading if the sample registered at least 100 mg of alcohol in 100 mL of blood. The accused was arrested at 5:46 p.m. He was searched and placed in the back of the cruiser. He was advised of his rights to counsel at 5:50 p.m. He was cautioned at 5:51 p.m., all of which he understood. The demand to provide a breath sample into the Intoxilyzer was given at 5:52 p.m.

As this area is near the boundary of different patrolling jurisdictions, Cst. Chirke turned the accused over to Cst. Courtel for transport to the Alexandria detachment of the OPP at 5:54 p.m. Cst. Chirke provided his grounds to Cst. Courtel. [ 53 ] There were no issues raised about Cst. Chirke’s evidence. He was credible and his evidence was reliable. [ 54 ] Cst. Mathieu Desjardins was dispatched to this scene at 5:04 p.m. He arrived at 5:15 p.m. He entered the ditch and tried to keep Mr. and Mrs. Dunham conscious until paramedics arrived. Cst. Desjardins described Mr. Dunham as dazed and confused. Cst.

Desjardins told Mr. Dunham to stay in the vehicle, which Mr. Dunham recalled. Cst. Desjardins testified that Mr. Dunham exited the vehicle and then lost consciousness. Cst. Desjardins tried to stabilize him while also trying to tell Mrs. Dunham, who was out of the vehicle, to stay still. Cst. Desjardins did not recall seeing any cuts or blood on Mrs. Dunham’s face. Cst. Desjardins took Mr. Dunham’s statement in the ambulance. I find that Cst. Desjardins was more focused on Mr. Dunham than Mrs. Dunham. I preferred the evidence of other witnesses in relation to Mrs. Dunham’s injuries.

Otherwise, I found this officer’s evidence reliable. Cst. Desjardins had no dealings with the accused. [ 55 ] Cst. Fabrice Courtel was dispatched to the scene of this collision at 5:18 p.m. He arrived from the Alexandria detachment of the OPP at 5:38 p.m. Cst. Courtel became the lead investigator as he was starting his shift and others were going off shift and the incident occurred in his jurisdiction. Cst. Courtel noticed the blue Honda Civic at the beginning of the overpass on the narrow right shoulder near the guard rail. Cst. Courtel was not an accident reconstructionist at that time.

However, he prepared a diagram and took measurements that day. [ 56 ] According to this officer, the flashing amber light at the intersection flashes amber for the north and south bound travelers and red for the people who would be at the stop signs exiting the ramp from Highway 417 and coming out of Tannery Road from Herb’s. Cst. Courtel’s diagram was filed as an exhibit. The zone of debris from the collision, con​sist​ing of glass and plastic, was in the southbound lane of Highway 34, on this officer’s evidence. According to Cst. Courtel, Mr.

Dunham’s vehicle landed 17 meters from the outer fog line of the northbound lane, southeast of the intersection in question. Mr. Lamoureux’s vehicle was parked 73 meters north of the area of the impact, which was north of the flashing light, at the beginning of the overpass for northbound vehicles on Highway 34. [ 57 ] Cst. Courtel received custody of Mr. Lamoureux from Cst. Chirke at 5:54 p.m. He was advised by Cst. Chirke that the accused had been arrested, the grounds for the arrest and that the accused had been advised of his rights to counsel and cautioned. The accused did not wish to speak with counsel.

Cst. Courtel testified that when the accused spoke to him and asked who would be taking care of his wife and children, that he could smell alcohol on the accused’s breath. Cst. Courtel provided the secondary caution and read the accused his rights to counsel again in French as the accused had addressed the officer in French. Mr. Lamoureux stated that he did not need to speak to a lawyer as he would not be providing a statement.

[ 58 ] He was read the breath demand in French and stated that he understood. None of the officers, including Cst. Courtel, noted any other indicia of impairment, noting only the smell of alcohol on the accused’s breath and the collision. Cst. Courtel was also aware that the accused had failed the roadside screening test. [ 59 ] Cst. Courtel was advised that Cst. McWhirter would be the breathalyzer technician. He transported the accused to the Alexandria detachment of the OPP. At 7:05 p.m., Cst. Courtel advised Officer McWhirter of his grounds. He turned Mr. Lamoureux over to Cst.

McWhirter at 7:12 p.m. [ 60 ] Cst. Courtel served all of the documentation on the accused and released him. Cst. Courtel also served the accused with a POA certificate of offence for an improper right turn. The Court learned that the accused did not contest this infraction and paid the fine. Cst. Courtel took photographs of the vehicles at Herb’s Towing on July 29 th , 2017. The photographs were filed as exhibits. I have reviewed them. [ 61 ] In cross-examination, Cst.

Courtel was challenged on the very small diagram he also drew in his notebook which, according to defence counsel, depicts that the accident occurred in the centre between the northbound and southbound lane as opposed to the more detailed diagram prepared with the measurements taken by the officer, which depicts a zone of debris located exclusively in the southbound lane. The officer explained that the diagram in his notebook was not intended to depict the details of the scene.

Having observed the diagram, it is clear to me that the officer prepared a very rough sketch of the area in his notebook, not intending to depict an area of debris. This was simply a rough sketch of the general area. In any event, Cst. Courtel’s evidence did not waiver in cross- examination in regards to the location of the debris. He testified that he was not an accident reconstructionist at the time but maintained that the concentration of the debris was in the southbound lane. [ 62 ] Cst.

Courtel conceded in cross-examination that he erroneously wrote on the notice of vehicle impoundment document that the driver was Delara Mismanova when he intended to write on this document that she was the registered owner of the vehicle, not the driver. [ 63 ] Cst. Courtel was also challenged as to why he charged the accused with impaired driving when there were such limited indicia of impairment. This was the subject-matter of counsel’s

section 7 challenge; defence counsel alleged that the accused was improperly charged and intentionally over-charged with impaired operation of a motor vehicle. As stated above, the Charter Application was dismissed as abandoned. The balance of defence counsel’s cross-examination focused on this issue. [ 64 ] Cst. Courtel testified in a clear and straightforward fashion. I found him to be a careful witness who was conscientious throughout his dealings with the accused and respectful of Mr. Lamoureux’s rights. He realized that the accused seemed to prefer to speak French, although he is bilingual.

He took the time to communicate all of the accused’s rights in French. Cst. Courtel was an honest witness. Defence counsel argued that this officer was more interested in securing a conviction than telling the truth about his observations. The Court disagrees. The evidence of this witness corroborated the evidence of Mr. Dunham which I accept in the sense that the collision occurred in the southbound lane. I did not find that Cst. Courtel misled the Court in any way or that he was trying to secure a conviction. I found his evidence forthright and reliable.

I note also that he readily conceded that he made a mistake on the impoundment notice. [ 65 ] Cst. Scott McWhirter ’s evidence is not in dispute. He was the Qualified Intoxilyzer technician who dealt with the accused. He received the grounds from Officer Courtel. Mr. Lamoureux provided two suitable samples of his breath into the Intoxilyzer 8000C which was in proper working order. The first sample of the accused’s breath was provided at 7:14 and registered a reading of 111 mg of alcohol in 100 mL of blood.

The second sample of breath provided by the accused at 7:36 registered a reading of 102 mg of alcohol in 100 mL of blood. Cst. McWhirter noted that the accused ability to operate a motor vehicle was slightly impaired by alcohol on the Alcohol Influence Report. The accused demonstrated no problems with speech or balance. He was cooperative. His eyes were watery. The Court also received the test record in evidence. [ 66 ] As indicated, the accused was served with all of the proper notices and was released.

I found this officer’s evidence reliable. [ 67 ] Jean-Paul Palmentier , a toxicologist with the Centre of Forensic Sciences testified as an expert witness. Mr. Palmentier had been qualified as an expert toxicologist by the Courts in over 260 prior cases of this nature. On consent, this witness was qualified to provide expert opinion evidence with respect to the toxicology and projected blood alcohol concentration in a person’s blood at particular points in time, the rates of elimination and effects of alcohol on the human body. [ 68 ] Mr.

Palmentier prepared a Toxicology Letter of Opinion in advance of trial which was filed in evidence during his testimony. In the expert’s opinion, if Mr. Lamoureux was involved in the accident which was estimated to have occurred at 4:43 p.m. and the results of the accused’s breath samples into the Intoxilyzer 8000C at 7:14 p.m. and 7:36 p.m. were 111 mg and 102 mg of alcohol in 100 mL of blood respectively, the projected blood alcohol concentration (BAC) at approximately 4:43 p.m. is 105 mg to 155 mg of alcohol in 100 mL of blood.

I note from this witness’s evidence that BAC is not affected to any significant degree if the time is altered by 5 minutes of less. In addition, the projected range is independent of the gender, height, weight and age of the individual but is dependent on four additional factors which are: 1. A rate of elimination of alcohol from the blood ranging from 10 to 20 mg/100 mL per hour. 2. Allowance for a plateau of up to two hours. 3. No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident. 4.

No consumption of alcoholic beverages after the incident and before the breath tests. [ 69 ] Mr. Palmentier adopted his report and specifically, the following passage of relevance: “The operation of a motor vehicle requires the integrity of a variety of sensory, motor, and intellectual faculties including divided

attention, choice reaction time, judgment of speed and distance, risk assessment, vigilance and vision. The degree of impairment produced by alcohol is dependent on BAC. Under controlled experimental conditions, impairment of divided attention tasks has been reported at BACs as low as 15 mg/100 mL. Nevertheless, based on a critical review of the relevant scientific literature (laboratory, closed-course driving, crash risk assessment) it is my opinion that impairment with respect to driving becomes significant at a BAC of 50 mg/100 mL and increases from then onward.

Whether the impairment is apparent depends upon the complexity of the driving task. For example, the impairing effect of alcohol is marked in driving situations that are unpredictable and that require a rapid and appropriate response. Impairment may occur in the absence of visible signs of alcohol intoxication , which may be due to tolerance.” (emphasis added) [ 70 ] There was no issue in the case with factors 1, 2 and 4 set out above.

The issue raised when the accused later testified involved the projection based on a drinking pattern put to the expert in cross-examination which involved bolus drinking (defined as the consumption of large quantities of alcohol within approximately 15 minutes of the time of the incident). [ 71 ] The expert specified that by “large quantity”, this is typically one or more standard alcoholic beverages. Mr.

Palmentier explained that one alcoholic beverage is the equivalent of one bottle of beer containing 12 fluid ounces of 5 percent alcohol by volume or one and a half fluid ounces of 40 percent spirits or 5 fluid ounces of 12 percent wine alcohol. [ 72 ] Mr. Palmentier testified that there is uncertainty about absorption with bolus drinking because there is alcohol absorption during that 15-minute period of time but it is unknown whether the person in question, who was not specifically tested, would have reached their peak in that 15 minutes.

Since some people do reach their peak and others do not, any consumption within this period of time would be subtracted because the alcohol may not have been at the peak blood alcohol concentration and producing its maximal effect at that time. [ 73 ] Mr. Palmentier confirmed that he had not tested Mr. Lamoureux. [ 74 ] Mr. Palmentier explained the difference between intoxication, which is the outward physical signs of alcohol consumption, and impairment.

He described the outward physical signs of alcohol consumption which the Court typically sees in cases involving impaired operation of a motor vehicle, that is, red glassy eyes, flushed face, slurred speech, loss of fine motor coordination or problems with balance and gait. Mr. Palmentier specified that in providing an opinion about whether a person’s ability to drive a motor vehicle is impaired, he does not rely on those outward physical signs of intoxication as these can be caused by other things.

Rather, blood alcohol concentration will determine whether a person is impaired as scientifically impairment is a recognized decrease in the ability to perform a task due to the effect of alcohol on the central nervous system; alcohol slows down the functioning of the brain and is not a performance enhancing drug. [ 75 ] Mr. Palmentier explained that with repetitive consumption of alcohol on a regular basis and performing a task, one can actually get better at not showing any outward signs of intoxication.

However, with impairment and the effect of alcohol on the central nervous system, this affects the faculties required for operating a motor vehicle. It affects the mechanical aspects for operating a vehicle such as coordination and alertness and the intellectual faculties required for operating a motor vehicle which include divided attention, choice reaction time, decision-making with respect to risk and risk assessment, judgment and perception of distance and speed and vigilance.

He went on to state that the higher the concentration of alcohol in the blood, the greater the degree of impairment of those faculties becomes and as the concentration continues to rise, more faculties start to become impaired. [ 76 ] Mr. Palmentier explained that a person can develop a tolerance to the physical effects of alcohol as one can control or manipulate one’s walk and speech, but one cannot develop tolerance to the intellectual faculties required for operating a motor vehicle because these cannot be controlled.

Therefore, a person could seem to be walking and talking fine but if faced with a complex task such as driving, that same person may be mentally impaired. Further, the more complex the task, if one introduces distractions or a more complicated geographical setting or required manoeuvres, as the concentration of alcohol in the blood increases so does the effect of the alcohol on one ability to drive. [ 77 ] Mr.

Palmentier testified: “… obviously the greater the demands and the greater the effect of alcohol and with respect to my opinion and after a review of the peer reviewed scientific literature, rather extensive reviews, that in my opinion impairment with respect to operating a motor vehicle would become significant starting at 50 mg of alcohol in 100 mL of blood and increase from there onward such that the likelihood that a person is not impaired decreases with increasing blood alcohol concentration.

And that’s irrespective of the outward physical signs or presence or absence of physical signs of intoxication”. [ 78 ] Mr. Palmentier opined on the effect of increased BAC where complexity is increased where there are different roads from which traffic could be coming, and more complex geographical features such as hills or overpasses. [ 79 ] With respect to the science upon which Mr.

Palmentier’s opinion is based and the specific range set out in his opinion (that is 105 to 155 mg of alcohol in 100 mL of blood), this expert witness testified: “ … particularly since the 19, the late 1980’s onward that there’s been more and more investigation of faculties for operating motor vehicles at lower and lower blood alcohol concentrations and it’s consistently shown that you can be impaired at lower and lower blood alcohol concentrations.

And that what I’m doing is looking at all the studies of the population that have been measured, the samples of the population and also age, gender, drinking habits, driving experience, race, all those kinds of things are studied by different groups to look and see whether people are impaired or not. And in science and medicine it’s valid to compare somebody to a population that has been measured and so, the same way the doctor would take your cholesterol test and, of course, some other function test, right and would apply your value to the population that has been measured.

But obviously not everybody in the world has had their cholesterol measured. But you’re assumed to be part of that population until you’re found to be an outlier, I guess, and so in science that’s what I’m doing. I’m assuming he’s part of the population and based on the thousands and thousands of people who have been tested. My opinion is that an individual would be impaired”.

[ 80 ] Various drinking scenarios were put to the expert witness to determine projected BAC. I will not review them in detail in these reasons. [ 81 ] I found this expert witness’s testimony reliable. [ 82 ] The accused, Mr. Lamoureux, testified that he lost his father on April 28, 2017. His mother decided to organize a family reunion in Sorel-Tracy on the weekend of this incident. Mr. Lamoureux was uncertain how far it was from his home to Sorel-Tracy but estimated that it was 300-400 km away.

He testified that he left with his wife and two daughters, ages 2 and 4, from his home in Ottawa on Friday to attend the reunion. He did not recall what time they left. [ 83 ] According to his evidence, there was a barbecue planned on Sunday July 23 rd . He started setting up tables and chairs as well as water games for the children at approximately 9:30 a.m. as the guests were scheduled to arrive at 10:00 a.m. Mr. Lamoureux testified that his brother arrived with the tables at 9:30 and invited him to have a beer. Mr.

Lamoureux commented that it was a bit early to start drinking but he joined his brother, drinking his first beer at approximately 9:30 a.m. Mr. Lamoureux recalled that he had purchased a 6- pack of Coors Light in memory of his father and this was his father’s favourite beer, so he consumed it slowly. [ 84 ] Mr. Lamoureux testified that the guests arrived, and it was a super day. They began to pack up their things at approximately 1:15 p.m., put the bags in the car, said their goodbyes and headed back home at approximately 1:30 p.m. According to Mr.

Lamoureux, he drank the 6-pack of beer right up to his departure at 1:30. His evidence as to the timing of his last drink in Sorel-Tracy was not as clear in cross-examination. The accused testified that his wife drove from Sorel-Tracy as they had agreed to this, given that he had driven on Friday . [ 85 ] According to the accused, when they got half way home, the children were getting boisterous and asked if they could stop to eat. Consequently, they stopped at Herb’s, arriving at approximately 3:30 p.m. Mr. Lamoureux testified that he and his wife shared nachos and each had a beer.

He did not recall specifically what the children ate. The accused stated that at 4:30, his wife said it was time to leave. According to the accused, he asked the waitress for the bill and ordered a double brandy. Mr. Lamoureux testified that his wife took the girls to the bathroom and he consumed his brandy. He testified: “Et puis moi j’ai commencé à prendre mon brandy.

C’est là que ça – j’ai tombé un peu dans la nostalgie parce que le brandy avec mon père après avoir mangé c’était une tradition. » [ 86 ] Translated as : « I had my brandy and I became nostalgic at that point because with my father after dinner or having eaten, brandy was a tradition. » [ 87 ] The accused added : “Yeah, double shot, double shot de brandy, c’était important pour nous autres, pis ça été – la perte de mon père a été très difficile” [ 88 ] Translated as : “A double brandy was the usual with my father. My father’s passing was very difficult”. [ 89 ] Mr.

Lamoureux paid cash, finished his brandy and went to meet his wife who put the children in their car seats. Mr. Lamoureux testified that his wife said she was tired and asked if he would drive the rest of the way. His evidence as to the timing of her request was inconsistent or at best, unclear. [ 90 ] According to Mr. Lamoureux, he looked at the clock when he entered the car because he is in the habit of looking at the clock before he leaves to calculate how much time it will take him to get home. He testified that it was exactly 4:40 when he started to back up the car to head home.

The accused stated that he got to the stop sign, looked to his right, then his left, then his right and that he turned right to proceed northbound. [ 91 ] According to Mr. Lamoureux, there was a sudden flash and he heard “boom” which shook his car but did not prevent him from completing his turn. Mr. Lamoureux testified that he had no idea at the time that he hit another vehicle. He testified that after he completed the turn, he was in his lane.

The accused stated that there was a commotion in the car after the collision, that he was trying to stop on the side of the road at a safe place and drove 30 to 40 meters. The accused testified that his wife was crying and his girls were in a state of crisis. After everyone had calmed down, he decided to go see what happened. Mr. Lamoureux testified that he gave his keys to his wife and told her he was not driving anymore. [ 92 ] According to the accused, he noticed other cars parked along the road with good Samaritans assisting. He testified that he entered the field to see if the other vehicle’s driver was o.k.

He stated that the man was very confused and his wife was agitated. He did not recall how long he stayed in the field but recalled that the police had arrived at the point when he left the field. He described his interaction with police which was consistent with the evidence provided by the various officers in regards to his arrest and breath testing. [ 93 ] According to Mr. Lamoureux, he was familiar with Herb’s and had stopped there before. He spoke of being a student at the University of Ottawa in 1994 and how he had stopped at Herb’s in the past as Herb’s is also a fueling station. [ 94 ] Although Mr.

Lamoureux had testified that his wife drove from Sorel to Herb’s, when his counsel took him back through his evidence and the accused described his arrival at Herb’s on the date of the offence, Mr. Lamoureux stated: “Bin on rentre au restaurant pour – je me stationne. On rentre au restaurant pour casser la croûte » [ 95 ] Translated as :

« I park and we go into the restaurant to have a bite » [ 96 ] Mr. Lamoureux’s inconsistent evidence on this point was noteworthy. Immediately after he said this, he became confused about the time they finished eating, testifying that they completed their meal at 3:20-3:30 max. His counsel took him back to the timing of his departure from his mother’s residence and asked again what time he finished his meal at Herb’s, essentially trying to focus his client on the math. The accused then corrected himself and repeated his earlier testimony that they finished eating at 4:30. [ 97 ] Mr.

Lamoureux had a hard time maintaining his storyline with respect to the amount of alcohol he consumed as well. His counsel asked him a leading question, repeating the accused’s earlier evidence that he had ordered a double. The accused agreed. He was then asked, “how many ounces come in that shot?” Mr. Lamoureux answered, “I believe it’s two”. He was further pressed by his counsel “and a double?”. He did not reply. His counsel pressed him again asking “a double shot is what?”. Mr. Lamoureux was confused and hesitated. He answered “Ah, double – une “shot” c’est deux onces”.

When pressed, he finally repeated his earlier testimony that it was four ounces. Although he had expressed uncertainty initially by saying he “believed” there were two ounces in that shot, Mr. Lamoureux later went on to explain, in an inconsistent portion of this evidence of import, that he knew how much he had consumed because he asked the waitress. [ 98 ] This key component of his evidence was the subject of further inconsistencies and illogical evidence provided by the accused during cross-examination. The accused stated that before he ordered the Brandy, he asked the waitress how much there was in a shot.

When she said 2 oz., he told her “give me a double”. The Crown asked Mr. Lamoureux why he would ask, and he said that he asked because he wanted to know how much alcohol he drinks before he does it. When the Crown suggested that it would not matter because when he ordered, his wife was driving, the accused said no and then corrected himself and said “yes” that he had ordered before she said she was too tired to drive. The Crown then pressed him again about why he would ask and the accused explained that he always took a “double shot” with his dad so if she had said 1 oz., he would have asked for more.

He then agreed that it was the symbolism of the “double shot” which was important. Mr. Lamoureux then specified that he wanted it to be a double times 2 oz. [ 99 ] Mr. Lamoureux’s evidence on this issue evolved from “I believe it was 2 oz.” to certainty that there were 2 oz. in “that shot”, to 4 oz., to being certain that a double shot contained 4 oz. because although it was the symbolism of the “double shot” which mattered, if the waitress had said it was 1 oz., he would have asked for more than a double shot. [ 100 ] Upon reviewing the totality of the evidence, I am convinced beyond a reasonable doubt that Mr.

Lamoureux could not keep this story straight in his mind because it was not true. This description of consumption was artificially created in order to fit within the pattern of consumption required to lower the range of BAC at the relevant time through the expert witness. [ 101 ] I reject the evidence of the accused as there were numerous inconsistencies in his evidence and his testimony was illogical. His evidence was so deficient that it does not raise a reasonable doubt. [ 102 ] I will provide a few examples, but I wish to emphasize that there were several more.

As referenced briefly above, the accused described how he and his wife had agreed that she would drive home because he drove on Friday. He made a point of saying that his wife drove from Sorel that day. Yet, he testified that when they got to Herb’s, he parked and they went in to eat. [ 103 ] By way of further example, Mr. Lamoureux gave inconsistent evidence regarding the time when they finished eating. His counsel led him to that correction and it was not an easy task, as set out above. [ 104 ] In addition, Mr.

Lamoureux demonstrated the amount of alcohol in that “double shot” during cross-examination and it was significantly smaller when he was immediately asked to repeat that gesture and he realized that he was initially showing what would be far more than a 4 oz serving. Mr. Lamoureux then tried to justify the difference in the size by saying that it was the glass in which he drank the brandy which would make it look like it was more because he drank from a “cognac flute”. This, of course, would not explain why he changed the size of the serving he demonstrated with his fingers. [ 105 ] Mr.

Lamoureux explained during his testimony that he does not have to be a toxicologist to know that he was fine to drive that day and that nobody knows better than him when he is in shape to drive. He testified that he normally drinks 3 to 4 days per week and that on those days, he would consume 3 to 4 drinks. He testified that on a typical Saturday, he would have 2 beers and one glass of wine. In fact, this was consistent with the amount of alcohol he said he had on the evening before the incident, when he was at his mother’s home.

On the accused’s evidence, on the date of this incident, he would have consumed 7 beers and then minutes before driving, he had 2 and 2/3 standard alcoholic beverages (4 oz of brandy) for a total of 9 and 2/3 alcoholic beverages, all of which he consumed before 5:00 p.m. On his evidence, he was feeling fine when he pulled out of Herb’s with his wife and his two daughters to drive back to Ottawa. This evidence was illogical and demonstrates precisely why the Supreme Court cautioned that defences of this nature “should be rare”. [ 106 ] Mr.

Lamoureux made it a point to recall the exact time he left Herb’s saying that it is his habit to look at the clock to calculate how long it will take him to get to his destination. He did not recall what time he left Ottawa for Sorel on Friday night. [ 107 ] Mr. Lamoureux’s evidence was both illogical and inconsistent in regards to his consumption of the brandy as set out above. In addition, he testified that it was after he started drinking the brandy that he became nostalgic about his father.

This too is inconsistent with his evidence about why it was so important to him, in memory of his father, that he order a “double shot”. [ 108 ] The accused’s evidence was both internally and externally inconsistent as he described his right turn from Tannery Road onto Highway 34 and what would have been visible to him at that point. He would not concede in cross-examination when it was obvious that if he had turned right as he described and Mr. Dunham had crossed into the northbound lane, that Mr. Dunham’s vehicle would have been visible to him.

Given the geography of this area, I agree with Crown counsel that it defies logic that Mr. Lamoureux would not have seen this vehicle entering his lane on the driver’s side of the accused’s vehicle if the events had unfolded as he described. [ 109 ] Mr. Dunham testified as to the make and colour of the accused’s vehicle even though he was taken from the scene and did not see that vehicle again, because he saw it coming at him in his lane and tried to avoid it. I find that Mr. Lamoureux did not see Mr.

Dunham’s vehicle, not because he was driving and therefore could not see it as he told Ms. Boileau, but rather, because, impaired byalcohol, he changed his mind and entered Mr. Dunham’s lane to take the ramp on the south side of the overpass. I am convinced, basedon my review of the totality of the evidence, that this is what occurred. [110] The defence did not call Mr. Lamoureux’s wife to testify, who would have been with him throughout the day of this incident, onhis evidence.

In assessing an accused’s consumption evidence, in certain cases, Courts have considered whether or not to draw anegative inference from the failure of the defence to call supporting evidence from relatives or friends who were present and couldcorroborate the evidence of the accused. [111] In the present case, the Crown asks this Court to draw a negative inference from the failure to call Mr. Lamoureux’s wife tocorroborate his evidence. I have reviewed the cases provided by counsel.

Of course, the party against whom the adverse inference issought may give a satisfactory explanation for the failure to call a witness. Mr. Lamoureux does not bear the onus of proof in this case. The party affected by the inference may explain it away by showing circumstances which account for the failure to produce the witness. While the party affected by the inference has the right to explain, the trial judge is to be satisfied that the circumstances thus offeredwould, in ordinary logic and experience, provide a plausible reason for non-production. (R. v. Jolivet, 2000 SCC 29 , [2000]S.C.J.

No. 28 at paragraphs 25-26). [112] In the present case, Mr. Lamoureux testified that his wife was born and raised in Russia, a communist regime. He stated that shehas a fear of authority and was simply incapable of either providing a statement to police or testifying at this trial. In the circumstances, Idraw no adverse inference from the non-production of this witness. The Court’s Ultimate Findings and Conclusions [113] The purpose of a criminal trial is to determine whether the Crown has proven the guilt of the accused on the charges he faces,beyond a reasonable doubt.

It is not a “credibility contest”. [114] Upon reviewing the totality of the evidence, I find that Mr. Lamoureux was required to perform divided attention tasks in acomplex driving situation. His driving was extremely poor in all of the circumstances. Once he entered Mr. Dunham’s lane, a rapid andappropriate response was required. I am convinced beyond a reasonable doubt that Mr. Lamoureux’s impairment by alcohol was at thevery least a contribution factor in his ending up in the wrong lane and that once there, his impairment by alcohol affected his ability torespond.

Upon reviewing the whole of the evidence, I am convinced beyond a reasonable doubt that the effects of alcohol on Mr.Lamoureux affected both the mechanical and intellectual faculties required in these circumstances to operate a motor vehicle. [115] In addition, I find that the Crown has proven beyond a reasonable doubt that the accused operated a motor vehicle with a bloodalcohol concentration which exceeded 80 mg/100 mL. I am convinced beyond a reasonable doubt that the accused BAC at the time ofdriving was between 105 and 155 mg/100 mL.

I am also convinced beyond a reasonable doubt that the accused caused the accidentwhich resulted in the significant bodily harm suffered by Mr. and Mrs. Dunham. [116] There were limited signs of intoxication in this case. I have considered all of the factors present here in their totality. The smellof alcohol on the accused’s breath does not result in a conclusion that the accused’s ability to operate a motor vehicle was impaired byalcohol. Nor does the collision standing on its own.

The distance the accused travelled before he pulled over was greater than onewould expect but this along with the time it took him to attend the scene could be the result of shock from the accident, if considered inisolation. Mr. Lamoureux’s laughter at inappropriate times, his statement that he did not see what happened because he was driving andhis defensiveness can all, in isolation, be explained away. Mr. Lamoureux was not specifically tested by a toxicologist and the effects ofalcohol on him at various rates of BAC were never evaluated. However, when considered in their totality along with Mr.

Palmentier’sopinion evidence, which is based on the testing of thousands and thousands of people, that impairment with respect to driving becomessignificant at a BAC of 50 mg/100 mL and increases from then onward, along with his mathematical calculation that at the relevant time,the projected BAC in this case was 105 to 155 mg of alcohol in 100 mL of blood, and the complex driving situation that Mr. Lamoureuxwas faced with that day, I am not left in any doubt that his impairment by alcohol caused Mr. Lamoureux to cross into Mr. Dunham’slane and caused him to fail to respond or even see Mr.

Dunham’s vehicle prior to impact. [117] The Crown has met its heavy burden on the charges of impaired operation of a motor vehicle causing bodily harm. [118] I am also convinced beyond a reasonable doubt that the accused operated a motor vehicle on this date causing the accidentwhich resulted in bodily harm to both Mr. and Mrs. Dunham while his BAC was between 105 and 155 mg of alcohol in 100 mL of blood.The Crown has met its onus on these two counts as well. [119] There is a finding of guilt on all counts. Released: May 3, 2019 Signed: Justice Diane M. Lahaie