R. v. Healey Date:, 2010 BCPC 453

Citation: R. v. Healey Date: 20111012 2010 BCPC 0453 File No: 36406 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER SIMON HEALEY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE SAUNDERSON Counsel for the Crown: David Fitzsimmons Counsel for the Defendant: Douglas Marion Place of Hearing: Campbell River , B.C.

Dates of Hearing: September 8, 9 & 10, 2010 Date of Judgment: October 12, 2010 [ 1 ] The defendant is charged with impaired driving causing the death of Weston Smith, and with failing or refusing to provide samples of his blood for blood/alcohol analysis when he knew or ought to have known that his operation of a motor vehicle caused the death of Mr. Smith. The maximum penalty for each offence is imprisonment for life. [ 2 ] The accident occurred on a clear, dry day at about 3:15 p.m. on June 4, 2009 on Highway 19, some 14 kilometres south of Sayward Junction, which is north of Campbell River.

The road at the scene of the accident was paved, two lanes wide, with a double solid centre line, and white lines marking the east and west shoulders. The shoulders were mainly dirt and were bordered by ditches. The posted speed limit in the area was 90 km/h. [ 3 ] The entire case consisted of evidence called by the prosecution. No evidence was given by, or on behalf of, the defendant. [ 4 ] The issues for decision regarding the impaired driving charge are whether it has been proved beyond a reasonable doubt that the defendant was the driver, and, if so, whether his ability to drive was impaired by alcohol.

With respect to the failure to provide blood samples, the issues relate to the grounds for the demand and the form of the demand. [ 5 ] There were no eye-witnesses to the collision. The case for the Crown on the impaired driving charge is circumstantial, requiring

proof, according to the time-honoured rule in Hodge’s Case , that the circumstances are consistent with the guilt of the accused, and inconsistent with any other rational explanation. That “rule” has been the subject of spirited academic and judicial debate, and has been recharacterized as, in effect, simply requiring proof beyond a reasonable doubt. Of course, reasonable doubt must be based on the evidence at trial, not on speculation. [ 6 ] The manner in which the accident occurred was the subject of a collision reconstruction report prepared by R.C.M.P.

Corporal LeBlanc, whose qualifications to offer his expert opinion in that regard were accepted by defence counsel. I accept and rely on the findings and opinions expressed in the report. From his investigation at the scene, he concluded that the defendant’s vehicle, a Toyota pickup truck, had been travelling north on Highway 19, drove onto the dirt shoulder to its right, then returned to the road, rotated in a counterclockwise direction, crossed into the southbound lane, and collided with a Mazda pickup truck that was travelling south on the highway in its own lane.

Corporal LeBlanc had both vehicles inspected and ruled out any mechanical problems that might have contributed to the collision. [ 7 ] Weston Smith, who was wearing his seatbelt while driving the Mazda, suffered massive head and chest injuries on impact, resulting in his immediate death. [ 8 ] Regarding the impaired driving matter, in addition to Corporal LeBlanc’s report, there was Shawn Clement’s testimony that, early that morning, the defendant had had a couple of drinks, and that he normally drank vodka.

At the accident scene, in the cab of the defendant’s truck were found one partly consumed and two empty bottles of vodka. The former bore the defendant’s fingerprint. [ 9 ] Shortly after the accident, the defendant was found lying on the southbound lane of the road, close to his Toyota, apparently unconscious, with a lump on the right side of his forehead. Within a few minutes he regained consciousness. He was attended by Julie March, who had first aid training and happened to be driving by. She noticed the smell of alcohol coming from the defendant, and described the smell as not being stale.

She said that he was confused initially, but became substantially reoriented during her attendance. She added, “He slurred his words, but that could also mean a decreased level of consciousness.” She gave no evidence about head injuries or their effects. Indeed, she was not qualified to do so. [ 10 ] Constable Christopher Dovell arrived at the scene within twenty minutes of the accident occurring. He saw the defendant on the road being attended by Ms. March, and noted that his speech was slurred and his face was flushed.

He accompanied the defendant in the ambulance that transported him to the hospital in Campbell River. The trip took forty-five minutes. During that period he noted that the defendant’s face was red and flushed, his eyes were glassy, his speech was slurred, and there was a strong odour of liquor on his breath.

He described the odour as fresh, not stale. [ 11 ] With respect to who was driving the Toyota, there is nothing in the evidence to suggest that anyone other than the defendant was the driver. [ 12 ] The whole of the evidence, taken together, leads to the conclusion that the defendant caused or permitted his pickup truck to drive onto the right-hand shoulder, that he over-corrected in trying to regain the northbound traffic lane, that in doing so he lost control of the vehicle and it went into a spin, crossing the centre line and colliding with Mr.

Smith’s vehicle in the southbound lane. [ 13 ] A Crown witness acknowledged that bears, deer and elk could be seen on that highway from time to time, but there was no evidence that the movement of the defendant’s truck could be explained by the presence of an animal on the road, or that the defendant was trying to avoid a collision with an animal. [ 14 ] I am satisfied to the required degree that the defendant was the driver of the vehicle that collided with the southbound Mazda, that his ability to drive was impaired by alcohol at the time, and that he caused the death of Weston Smith.

No other conclusion emerges from the evidence. Accordingly, I find him guilty of the charge. [ 15 ] Turning to the charge of refusing to provide blood samples, the evidence establishes clearly that Cst. Dovell first told the defendant in the ambulance, then at the hospital, that he was being investigated and detained for impaired driving causing death. While the defendant’s responses appear to have been evasive, from the context I am satisfied that he understood very well the stated reason for the investigation and his detention. [ 16 ] Regarding the matter of whether Cst.

Dovell had reasonable and probable grounds for making the demand for blood samples, from his own testimony of his observations at the scene and experience as a police officer dealing with intoxicated people, he certainly had the subjective belief that the defendant’s ability to drive was impaired by alcohol. It matters not whether what he saw might have been consistent with another explanation based on speculation.

Moreover, objectively a reasonable person armed with the same information and observations could readily have come to the same conclusion as the investigating officer. [ 17 ] As for the defendant’s refusal to provide blood samples, that is amply documented in the transcripts of his conversations with Cst. Dovell at the hospital. [ 18 ] That leaves for determination the issue of whether the demand for blood samples was in the proper form. The wording of the demand was transcribed from an audio tape made at the hospital.

The demand was made under s. 254(3) (a)(ii) of the Criminal Code , which refers to samples of blood that, “in the opinion of the qualified medical practitioner or qualified technician taking the samples”, will enable a proper blood/alcohol analysis to be made. The words just quoted do not appear in the demand made by Cst. Dovell, nor do any words to the same effect. [ 19 ] I find that the failure to include those words is fatal to the demand. In coming to this conclusion, I rely on the principle established by the Supreme Court of Canada in R. v.

Green , 1992 CanLII 128 (SCC) , [1992] 1 S.C.R. 614 and re affirmed in R. v. Knox , 1996 CanLII 171 (SCC) , [1996] 3 S.C.R. 199 . The demands in each case failed to include the assurances under s. 254(4) required by the former s. 254(3) (b), and to that extent, the facts are slightly different from those in the case at bar. Nevertheless, logic dictates that the same approach be applied here. The second charge is therefore dismissed.