R. v. Caruso, 2017 ONCJ 887

CITATION: R. v. Caruso , 2017 ONCJ 887 DATE: September 19, 2017 COURT FILE No.: Toronto Region, Old City Hall Court ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Ms. Helen Song ) for the Crown ) — AND — ) ) ) IDA CARUSO ) Mr. Gianfranco Piccin ) for the Defendant ) ) ) ) K.J. caldwell J.: [ 1 ] Ms. Caruso is charged with four driving offences – impaired driving, drive over 80, dangerous driving and fail to remain. Overview [ 2 ] By way of overview, Ms. Caruso [1] went to the Century Nightclub in Toronto. She left with one of the bartenders, Mr. David Martel.

He drove her car to his place, parking in the underground garage. After they sat in the car for some time, he left to go up to his apartment and she drove off in her car. On the way home she hit another car as she was driving north on Highway 427. She continued driving but eventually had to stop her car given the damage suffered in the accident.

Eventually she was arrested and taken to the police station where she provided blood-alcohol readings of 173 mg of alcohol per 100 ml of blood at 6:21 am and 160 mg of alcohol per 100 ml of blood at 6:50 am. [ 3 ] For a variety of reasons, this case was extremely protracted. Ten witnesses were called in total. At the end of the day, much of the evidence of these witnesses was uncontroversial. Only one legal issue was ultimately raised by the defence. There were no Charter motions or issues with respect to the Intoxilyzer machine raised though the latter issue was explored during the trial evidence.

The primary issue [ 4 ] The main issue is whether Ms. Caruso volitionally drank sufficient alcohol that night to lead to impairment and her “over 80” blood alcohol levels or, alternatively, whether a drug was slipped into one of Ms. Caruso’s drinks such that she continued to consume alcohol while under the influence of that drug such that her intoxication was involuntary. [ 5 ] Once I have dealt with this issue, and the impaired driving/over 80 charges, I will turn to the dangerous driving and fail to remain charges.

The Law [ 6 ] Justice Leslie Pringle of this Court thoroughly and concisely outlined the mens rea impairment law in R. v. Domb . [2] First, she reiterated that any degree of impairment ranging from slight to great is sufficient for impaired operation [3] . [ 7 ] She went on to note that in R. v. Toews [4] the Supreme Court of Canada held that the mens rea is established if it is proven that there was intent to drive a motor vehicle after voluntarily consuming alcohol or a drug.

The actus reus is established once the person drives after the voluntary consumption of alcohol or drugs has impaired one’s ability to drive. [5] [ 8 ] Further, in R. v. King [6] the Supreme Court of Canada held that a rebuttable presumption arises that the impaired condition was voluntarily induced once it is established that the person drove while impaired.

The presumption is rebutted if other evidence is put forth that raises a reasonable doubt as to whether the person was able to appreciate that they would or might become impaired as a result of a certain act and thus drove while impaired through no fault of their own. [ 9 ] Justice Ritchie stated

If the driver's lack of appreciation when he undertook to drive was induced by voluntary consumption of alcohol or of a drug which he knew or had any reasonable ground for believing might cause him to be impaired, then he cannot, of course, avoid the consequences of the impairment which results by saying that he did not intend to get into such a condition, but if the impairment has been brought about without any act of his own will, then, in my view, the offence created by s. 223 cannot be said to have been committed.

The existence of a rebuttable presumption that a man intends the natural consequences of his own conduct is a part of our law, but its application to any particular situation involves a consideration of what consequences a man might be reasonably expected to foresee under the circumstances. [7] [ 10 ] Justice Ritchie used as an example a drug taken on doctor’s orders with no warning concerning a possible impaired effect.

In such a case, the presumption would be rebutted. [8] [ 11 ] Proof beyond a reasonable doubt of involuntary consumption is not required as such a high threshold would shift the burden of proof to the accused. The accused must simply raise a reasonable doubt that they consumed alcohol voluntarily. [9] Application of the Law to the evidence [ 12 ] For the reasons that follow, I reject Ms. Caruso’s evidence that she consumed alcohol involuntarily, and I find that her evidence does not leave me with a reasonable doubt. [10] I find that the trial evidence in its totality does not raise a reasonable doubt that Ms.

Caruso’s consumption was voluntary. [ 13 ] There are four primary witnesses whom assist on this issue: Ms. Caruso, her mother Ms. Maria Guadagnolo, the bartender Mr. David Martel, and Dr. Karen Woodall whom I qualified as an expert in the use, effect and mode of action of alcohol and drugs on the human body. The evidence of other witnesses also assisted at points as did the video evidence of the events in the breath room. I will not review all of the evidence of each of these witnesses but simply outline the aspects that I found most relevant to my determination. [ 14 ] There is no dispute that Ms.

Caruso arrived at the Century Club with two friends between 10:30 and 11 pm, that her friends left the club shortly after 11 pm, and that she ordered a second drink around 11:45 pm. According to Mr. Martel, the first drink was a vodka cranberry and, in all probability the second drink was the same. Ms. Caruso thought she ordered vodka shooter the first time and a shot of vodka mixed with Seven-Up the second time. [ 15 ] It is also not disputed that she went to the washroom after she ordered the second drink, that she asked Mr. Martel to watch the drink, and that he put a napkin over the drink.

It is that drink that Ms. Caruso believed was spiked, probably with GHB, and probably by Mr. Martel. [ 16 ] According to Mr. Martel, he saw Ms. Caruso two more times that evening, once around midnight and once around 1:30 am when they both did a shot of alcohol. [ 17 ] Around 2 am Ms. Caruso vomited. The bar was closing and they both left together with Mr. Martel offering to drive Ms. Caruso’s car. He drove to the underground at his apartment building, they stayed in the car for some time talking attempting to sleep, and then Mr. Martel left to go up to his apartment. By now it was close to 4 am. Mr.

Martel heard Ms. Caruso drive away shortly after that and the events on Highway 427 then followed. [ 18 ] The defence placed great emphasis on a text exchange that unfolded between Ms. Caruso and Mr. Martel the next day. There was also great debate surrounding the use that could be made of the texts. Frankly, I didn’t find the texts to be that significant. [ 19 ] If accepted as truthful on Ms. Caruso’s part, they would reflect a lack of memory about the previous night’s events but Ms. Caruso’s memory the following day is not the issue in this case. It may be that Ms.

Caruso truly didn’t remember any of the events the night before but I do not need to decide that issue. What is relevant is her state of mind when at the bar and at the time she drove. Dr. Karen Woodall testified that memory is highly variable. The fact that you can’t remember events at a later point in time does not mean that you were unaware of what was happening at the time. Memory also can be fragmentary, so you may remember only some parts of an event. [11] [ 20 ] I reject Ms. Caruso’s highly speculative contention that Mr. Martel must have spiked her drink with a drug, probably GHB.

First, there is no direct evidence on this issue though I appreciate that direct evidence is not necessary. Further, and more to the point, there isn’t evidence from which I would draw that inference. Mr. Martel testified extensively over a two-day period at this trial. As is often the case with witnesses who are questioned over a lengthy period, there were many layers that were revealed. Mr. Martel struck me as an honest, credible and reliable witness who attended this trial willingly at the request of the defence because he thought that he could assist Ms. Caruso. I don’t think he was aware of Ms.

Caruso’s belief that he had drugged her and/or potentially sexually assaulted her. I also don’t think that he ever became aware of her belief despite the nature of the questions asked of him. [ 21 ] At first he maintained that his actions towards Ms. Caruso that night were motivated strictly by a desire to keep her safe and that he was not attracted to her. Partway through his evidence, he admitted that he was physically attracted to her, and by the end of the evening he hoped that things might progress between the two of them.

Apparently that was a dynamic that had unfolded before between him and other female customers. [ 22 ] It is a serious and significant leap, however, to conclude that Mr. Martel drugged Ms. Caruso or that it is reasonably possible that he drugged her. I reject this argument as speculative, without foundation, and find that Ms. Caruso has not rebutted the presumption, as outlined in King , that she intended the consequences of her actions that night. I reach this conclusion for a number of reasons.

[ 23 ] I do accept that Mr. Martel was attracted to Ms. Caruso and that he left the bar with her that night hoping that there would be a sexual interaction between them. He readily admitted that he offered to drive her car for her and that he drove the car to the underground garage of his apartment building. He initially rejected the idea that he was irritated when she refused to come up to his apartment but eventually he admitted that he wasn’t happy about her refusal. I find as a fact that Mr.

Martel drove the car to the underground because he was hoping that he would convince her to spend the night at his apartment but I reject the suggestion that he sexually assaulted her and ripped her pantyhose in the process. I find as a fact that though he was disappointed and irritated by her refusal to come upstairs, matters ended at that point. He left to go to his apartment and she remained in the car, choosing to drive off shortly afterwards. [ 24 ] I also find that it would make absolutely no sense for Mr. Martel to place a drug in Ms.

Caruso’s drink in the early part of the evening when she went to the washroom. Mr. Martel testified that the club in question, the Century Room, is a very large venue. It was a Saturday night. He testified that the club was packed, with a capacity of 400 patrons. There were five bartenders in addition to him. Ms. Caruso was at his bar at the beginning of the night but then moved off into the crowd. He saw her briefly on a couple of occasions during the evening and then again around last call. I accept his evidence on these points. [ 25 ] Dr.

Woodall testified that GHB is an extremely fast acting drug – it acts on the body quickly and moves out of the body quickly. It would make absolutely no sense for Mr. Martel to drug Ms. Caruso prior to midnight in the hope that this would make her more amenable to his sexual advances two hours later, particularly when he would have had absolutely no assurances that he’d even see her again later in the evening. [ 26 ] I reject the suggestion that he drugged Ms. Caruso when he served her a shot at approximately 1:30 am. I accept his evidence that he did not do this act. Further, that would do little to assist Ms.

Caruso in any event as any later act of alcohol spiking would not render all of her earlier consumption involuntary. [ 27 ] I reject any speculative suggestion that Ms. Caruso and Mr. Martel drank together after leaving the bar. Mr. Martel testified to the contrary and I accept his evidence on this point. [ 28 ] I reject her speculative contention that someone else may have drugged her drink at some point that night and that this unknown third person may have done so in order to assist Mr. Martel or in order to achieve that unknown person’s own objectives.

There is absolutely no evidence of any such person though there was evidence that a man was sitting with her at one point toward the end of the evening. Mr. Martel testified that the man said he would “take care” of Ms. Caruso after she vomited, but there was no suggestion that “take care” was meant in the context suggested by the defence in submissions. [ 29 ] Further, I find that Ms. Caruso’s own evidence regarding her drinking was contradictory. She testified that she does not like the taste of alcohol and rarely drinks.

If she does drink, her maximum number of drinks is two yet she never drinks if she is going to be driving later in the evening. [ 30 ] Despite this professed pattern, Ms. Caruso admitted to consuming alcohol that night even though she did drive to the club and was going to be driving home later in the evening. The first drink she ordered, according to her evidence, was a vodka shot chilled on ice and the second drink was a vodka shot mixed with Seven-Up.

Further, on her evidence her friends left after the first drink and she remained alone leading to the logical inference that she knew there was no question that she would be driving home. [ 31 ] Ms. Caruso maintained in her evidence that she could not have voluntarily drunk the number of drinks required to reach the high readings in this case because she essentially is a non-drinker who dislikes alcohol and has a strict “no drinking if driving” policy. Even if this is Ms. Caruso’s usual approach, by her own admission that approach was violated very quickly that night.

She drank alcohol immediately upon entering the bar, she ordered more than one drink despite the fact that she was driving, and the initial drink, according to her, was straight alcohol despite her contention that she dislikes the taste. [ 32 ] I reject Ms. Caruso’s and her mother’s evidence that Ms. Caruso was behaving in a very strange manner that evening that would lead one to conclude that there was more than simply alcohol involved. [ 33 ] Ms. Caruso testified that she was very robotic on the breath room video, behaving in a manner contrary to her usual extroversion.

Her mother testified that her daughter was very quiet when she was picked up from the station, refusing to talk. She looked dazed, disoriented, detached from reality and had a blank look on her face. Her mother testified that it didn’t cross her mind that her daughter was drunk but instead she thought there must have been “foul play”. [ 34 ] I reject their evidence and find that such evidence contributes negatively to their overall credibility. I reject their evidence because it contradicts the evidence of the other witnesses in this case, and the video evidence contradicts it. [ 35 ] Mr.

John Fitzgerald was another motorist who saw the accident happen that night and who stopped shortly after. Mr. Fitzgerald described Ms. Caruso screaming and yelling at the tow truck driver. Sgt. Lannigan arrived on scene and was present when Ms. Caruso was released. He testified that upon release Ms. Caruso was very upset, swearing at her mother, and was angry with him for calling her mother to pick her up.

The breath technician, PC Bray, testified to her talkative behaviour and his observations are captured on the breath room video. [ 36 ] The video does not reflect a woman who is dazed, non-talkative and robotic. In fact, they reveal the opposite. Ms. Caruso describes the accident to the breath technician. She is argumentative with the breath technician regarding both her problematic attempts blowing into the breath machine and concerning the accident. She says that she wants a cigarette, describes her need to use the washroom and the reason for that need, and shows him the damage to her pantyhose.

Throughout she presents as extroverted, extremely talkative, and intoxicated. [ 37 ] I accept the evidence of the witnesses I have just outlined because each is consistent with the other and their evidence is consistent with the video evidence. It is for the same reasons that I reject Ms. Caruso’s evidence and her mother’s evidence regarding her behaviour upon release.

[ 38 ] I also find that Ms. Caruso’s testimony regarding her driving record reflects negatively upon her credibility. She insisted in cross-examination that she had a “clean” driving record yet it is clear that she has six prior violations, one as recent as 2014.

I could understand if she forgot a single dated violation but I find it impossible to accept that she could forget six, and that she could forget a conviction was registered approximately two years prior to her testimony. [ 39 ] Further, I reject her suggestion that her ripped pantyhose and the bruise on the back of her leg below her buttock occurred as a result of a sexual assault. I find that the reasonable inference in this case is that the ripped pantyhose and the bruise resulted from her serious car crash. [ 40 ] As I stated at the outset, I find as a fact that Ms.

Caruso’s alcohol consumption that night was voluntary. I find that she was not drugged by GHB or any other drug at any point in the evening. I find that she is guilty of operating her car while her ability to do so was impaired by alcohol and that she drove with a blood alcohol level in excess of 80 mg of alcohol per 100 ml of blood. Dangerous driving [ 41 ] The actus reus of dangerous driving is “driving conduct that is objectively dangerous to the public”. [12] There is no question that the actus reus of dangerous driving has been established beyond a reasonable doubt. Mr. Fitzgerald testified that Ms.

Caruso drove with her headlights off, made abrupt lane changes without signalling, swerved numerous times, and clipped another car which then began to spin. Ms. Caruso’s car went into the guardrail and suffered significant damage; however, she continued to drive on the steel rim of one of her tires as one of her tires was destroyed in the accident. Her bumper was dragging on the ground and smoke was emitted from her car as she drove.

I accept his evidence in its entirety. [ 42 ] The mens rea of dangerous driving is “the marked departure from the standard of care of a reasonably prudent driver in all of the circumstances facing the accused”. [13] [ 43 ] Elaborating further, Justice Charron in R. v. Beatty stated: In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused's actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test.

This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant.

For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met.

One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a "marked departure" from the standard expected of a reasonably prudent driver. [14] [ 44 ] The British Columbia Court of Appeal examined the impact of alcohol consumption on the test stated by Justice Charron above.

The Court held that the voluntary consumption of alcohol could be relevant to the mens rea determination if it shows recklessness in creating a risk for others. [15] [ 45 ] I have already found as a fact that Ms. Caruso voluntarily consumed a great deal of alcohol. I find that her reckless behaviour, combined with the driving conduct already outlined, shows a disregard for the safety of others and establishes a marked departure from the standard of a reasonably prudent driver. [ 46 ] I therefore find Ms. Caruso guilty of dangerous driving.

Fail to Remain [ 47 ] Failing to stop at the scene of an accident is an offence if the person fails to stop with the intent to escape civil or criminal liability. [16] [ 48 ] I find Ms. Caruso not guilty of this offence. I accept the evidence of the tow truck driver, Mr. Manpreet Gill, that Ms. Caruso asked him not to contact the police when he arrived to assist.

I appreciate that this statement allows for the inference that she wished to avoid the police because she knew she had been in an accident and therefore was attempting to avoid getting into trouble as a result. [ 49 ] I also have to consider her statements to the breath technician, however. Her statements to him suggested that she thought the driver of the other car was the one at fault. [ 50 ] I have already found her to be very intoxicated. Her level of intoxication, combined with her statements to the breath technician, leave me with a reasonable doubt regarding the reason she did not stop after the accident.

I am not convinced that her reason for leaving was to escape criminal and civil liability and I therefore find her not guilty of the fail to remain charge. Conclusion [ 51 ] I find Ms. Caruso guilty of impaired operation, drive over 80, and dangerous driving (counts #1-3). I find her not guilty of fail to remain (count #4).

Released : September 19, 2017 Signed : K.J. Caldwell J.