R. v. Mathurine, 2017 ONCJ 503

ONTARIO COURT OF JUSTICE CITATION: R. v. Mathurine, 2017 ONCJ 503 DATE: 2017 07 24 COURT FILE No.: Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — KESTON MATHURINE Before Justice S. Bacchus Heard on June 16, and June 26, 2017 Reasons for Judgment released on July 24, 2017 Ms. G. McLoughlin.............................................................................. counsel for the Crown Mr. J.

Marchand........................................... counsel for the accused Keston Mathurine BACCHUS J.: OVERVIEW [ 1 ] The defendant stands trial in respect of one count of impaired driving. [ 2 ] On January 31, 2016, at approximately 4:15 am, Charles Tynes and his family were travelling to Toronto Pearson Airport westbound on highway 409 east of highway 427. Mr. Tynes was operating his grey Lexus in the middle lane of the three lane highway when it was rear-ended by another vehicle. [ 3 ] The force of the collision caused Mr.

Tynes’ vehicle to propel to the left of the highway and then become briefly airborne as it travelled to the right of the highway before it came to rest. Fortunately, Mr. Tynes’ vehicle did not collide with the concrete barrier, or another vehicle, and no one in Mr. Tynes’ vehicle was physically injured. Mr. Tynes’ vehicle sustained moderate damage to the entire rear bumper but he was able to drive his car away from the scene. [ 4 ] The vehicle that rear-ended Mr. Tynes’ vehicle, a black Mazda, veered to the right then to the left and hit the median dead on, coming to rest perpendicular to the road.

This second vehicle sustained heavy damage to its front end including damage to the engine block, front bumper and the wheels. [ 5 ] When the police arrived, there was a tow truck on scene and both vehicles were situated on the left shoulder of the highway about 100 meters away from each other. [ 6 ] Mr. Tynes testified that there were no warning signs in advance of the collision and that he did not see any lights or hear any brakes.

[7] Mr. Tynes testified that he was travelling within the speed limit which was 80 or 100 km in this area. His evidence isunchallenged and I accept it as fact. Issues [8] There are two issues for determination in this matter. The first is whether the crown has proven beyond a reasonable doubt thatthe defendant was the driver of the Mazda that collided with Mr. Tynes’ motor vehicle. If proven the second issue is whether the crownhas proven beyond a reasonable doubt that the defendant operated his vehicle while his ability to do so was impaired by alcohol. [9] The first issue is easily resolved. Although Mr.

Tynes was not in a position to see the driver of the other vehicle, or see if therewere any passengers, he did observe the defendant standing next to the driver’s side door of the Mazda at a time proximate to thecollision, as did Officer James Meyer. [10] In addition, the car keys for the vehicle were observed on the driver’s seat of the vehicle close to where the defendant wasstanding. Further, only the air bag from the driver’s side steering wheel column of the vehicle had been deployed. [11] Finally, the collision occurred at 4:00 am in the middle of a highway.

There is no evidence of any other vehicles or pedestriansin the area except the tow trucks, police vehicles, and paramedics. [12] All of the circumstantial evidence is consistent with only one occupant of the Mazda, the driver. The inference that thedefendant was the driver based on the totality of this circumstantial evidence is overwhelming and it accords with common sense in thecircumstances. [13] I have no difficulty in arriving at the finding that the defendant was the driver of the vehicle which collided with Mr.

Tynes’vehicle at the time of the collision. [14] The second issue is more difficult to resolve. [15] The law requires that slight impairment in one’s ability to operate a motor vehicle is sufficient for proof of the offence ofimpaired driving. If the evidence establishes any degree of impairment to one’s ability to operate the motor vehicle, the offense is madeout. R v.

Stellato (ON CA), [1993] O.J. no.18 (Ont CA) affirmed (SCC), [1994] S.C.J. no.51 S.C.C. [16] In this case, Stephen Miller, a paramedic who attended the scene, interacted with the defendant while the defendant was seatedin the back seat of the police vehicle and he stood outside the door. Mr. Miller testified that the defendant seemed healthy and was ableto answer questions. He testified that the defendant did not show any signs of mental distress. [17] There is nothing in Mr.

Miller’s evidence to suggest that he observed any indicia of alcohol consumption or impairment during his interaction with the defendant. [1] [18] Officer James Meyer, who attended the scene and was both the arresting officer and the breath technician in this investigation,testified that he detected an odor of alcohol coming from the defendant’s breath and formed a reasonable suspicion that the defendant hadconsumed alcohol. As a result, Officer Meyer made a roadside screening demand. [19] Officer Meyer agreed that he interacted with the defendant for 22 minutes between 3:42 am and 4:52 am.

Officer Meyertestified that the defendant was cooperative, that he had no issues with his balance, that his speech was good, that his clothing wasorderly, that he did not observe the defendant vomit, belch, or hiccup, and that he did not observe discolouration to the defendant’s face.There is nothing in Officer Meyer’s evidence regarding the strength of the odor of alcohol he detected. [20] As such, the entire evidence of impairment in this case is comprised of the evidence that there was an odor of alcohol detectedcoming from the defendant’s breath and the fact and nature of the collision the defendant was involved in with Mr.Tynes’ vehicle.

Analysis [21] The crown submits that this is a case of an unexplained accident where the defendant is to blame because he rear-ended Mr.Tynes’ vehicle. The crown further submits that the nature of the collision, given the totality of the circumstances, should leave the courtwith no reasonable doubt that the defendant’s ability to operate his motor vehicle was impaired by alcohol. [22] The crown asks me to draw a number of inferences from the evidence. The crown submits that the court can infer that thedefendant’s vehicle lights were off when the collision occurred because Mr.

Tynes testified that he did not see the defendant’s vehiclebefore the collision. [23] I find this to be an unsafe and unreasonable inference to draw. The extent of Mr. Tynes’ evidence was that he did not see theother vehicle at all prior to the collision; he can offer no evidence on what it may or may not have been doing, or its condition before thecollision. [24] The crown asks me to infer that the collision was the defendant’s fault because the defendant clearly rear-ended Mr.

Tynes’vehicle and there is a recognized presumption that the driver who rear-ends is at fault. [25] Common sense leans towards the notion that an accident, in circumstances such as this, would more than likely be the fault ofthe individual who collides with the vehicle in front of it. However, there are significant gaps in the evidence about how the collision

occurred, or what caused it. [ 26 ] Even so, a finding that the defendant caused the collision is not dispositive of whether his ability to operate his motor vehicle was impaired by alcohol. [ 27 ] There are notable dissimilarities in the strength of the evidence in the cases of unexplained accident where courts have been in a position to find impaired ability on the totality of the evidence, from the case before me. [ 28 ] In R v. Watts [2007] O.J. No. 1382 , the defendant rear-ended a bus.

There was evidence of a strong smell of alcohol on his breath and that the defendant told a tow truck driver that he had had too much to drink and blacked out. The court found that the constellation of these factors including that there was no evidence that the road was slippery, or that visibility was poor, was enough for the crown to overcome its burden of proof. [ 29 ] In R v. Hackman [2016] O.J. No. 4434 , another case of a rear-end collision, the indicia displayed by the defendant included that he smelled of alcohol, stumbled over his feet and appeared at one time slumped over and non-responsive.

There was also evidence that the defendant told a civilian at the scene that he had failed to negotiate a lane change, consistent with a finding of undue care and attention on his part. [ 30 ] The court in Hackman, held that: “taken collectively, the conduct of the accused and the observations of the two civilian witnesses conveyed to the police officers would support the belief that Mr. Hackman’s ability to drive was at least slightly impaired by the alcohol consumption.” Hackman, supra para 13 [ 31 ] In R v. Rodine [2007] O.J.

No. 986 , there was unchallenged evidence that the driver who had been hit had been driving the speed limit and was travelling through a green light in the middle of an intersection when Mr. Rodine collided with him causing significant damage to both vehicles. There was no evidence to suggest that there were problems with weather or road conditions. [ 32 ] The court found that the driver who had been hit had operated his vehicle with proper care and attention and that it was logical to infer that Mr.

Rodine caused the accident. [ 33 ] However, there was also evidence in Rodine that the defendant had slurred speech and a strong smell of alcohol on his breath. [ 34 ] In R v Kish [2006] O.J. No. 5499 , the defendant’s vehicle left the roadway, hit a tree and then struck a vehicle. There was also evidence of a strong odor of alcohol emanating from Ms Kish’s breath, that her eyes were glassy and watery, and that she repeatedly apologized following the collision. [ 35 ] In R v. Chung [2004] O.J.

No. 5325 , although there was no direct evidence of the collision, the court was able to infer from the circumstances that the defendant collided with the traffic island. The accused in Chung, displayed strong indicia of impairment which included red and glossy eyes, grinning inappropriately, outstretched hands to gain balance, unsteadiness on his feet, slow and slurred speech and swaying while he was standing. [ 36 ] In R v. Varcoe [1992] O.J.

No. 3833 , there was evidence that the defendant had consumed a significant amount of alcohol before driving, as well as evidence from the investigating officer and three civilian witnesses that they could smell alcohol on the defendant or in his vicinity, and that his eyes were glossy. Findings [ 37 ] In Mr. Mathurine’s case, Mr. Tynes testified that he was travelling within the speed limit at 80 or 100km/hr. This evidence is unchallenged.

However, there is also evidence from Officer Meyer that the speed limit drops in this area from 100 km to 80 km/hr, although Officer Meyer was not sure where the change in speed limit occurs in relation to where the collision happened. No questions were asked of Mr. Tynes about whether there were any abrupt changes in his driving speed. [ 38 ] This is a minor gap in the evidence. Mr.

Tynes’ manner of driving is unchallenged and there is no basis to suggest that he was not driving his vehicle with due care and attention. [ 39 ] More importantly however, there is an absence of evidence regarding the manner of the defendant’s driving prior to the collision: no tire tracks, or squealing tires, no evidence of the defendant’s speed or the trajectory of his vehicle before the collision.

There is no evidence regarding the path the defendant’s vehicle took leading up to the collision from which inferences may be drawn regarding impaired judgment or ability. [ 40 ] In addition, other than the evidence that the defendant consumed alcohol based on the odor detected from his breath, there is no evidence consistent with indicia of impairment. [ 41 ] I recognize that the standard of proof requires only slight evidence of impairment.

However, I am also mindful that the issue is not whether the defendant has consumed alcohol but whether his ability to operate his motor vehicle was impaired by the consumption of alcohol. [ 42 ] Despite the significant nature of the collision and the fact that the defendant’s vehicle rear-ended Mr. Tyne’s vehicle, I find that the evidence in the case before me falls short of establishing proof beyond a reasonable doubt that the defendant’s ability to operate his motor vehicle was impaired by alcohol. [ 43 ] The defendant is found not guilty.

Released: July 24, 2017 Signed: Justice S. Bacchus [1] During questioning of Mr. Miller in a voir dire on the issue of identity the crown put to Mr. Miller and the witness agreed that the defendant was “not too impaired” to answer questions. Despite Mr. Miller’s tacit agreement to the crown’s use of this phrase, there is nothing in any aspect of Mr. Miller’s evidence or any other witness to suggest that the defendant appeared to be impaired to any degree.