R. v. Barahona, 2011 ONCJ 418

COURT FILE No.: Toronto Region Metro North Court DATE: 2011·02·23 Citation: R. v.

Barahona , 2011 ONCJ 418 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JORGE BARAHONA Before Justice Carol Brewer Heard on November 10, 2010 and January 19, 2011 Reasons for Judgment released on February 23, 2011 Michelle Schwartz ...................................................................................................... for the Crown Michael Simrod .......................................................................... for the defendant, Jorge Barahona Brewer J.: Introduction [ 1 ] Jorge Barahona is charged that, on December 6, 2007, he had care or control of a motor vehicle while being impaired by alcohol and while his blood alcohol level was above the legal limit. [ 2 ] These charges arise out of a single vehicle collision on Allen Road.

A Lincoln automobile, that was travelling north, left the highway and entered the snow bank on the east side of the road. It continued going north through the snow for about 160 metres, began rotating counter clockwise to the east, and slid sideways into a light standard. The force of the impact caused the car to rotate back onto the highway, where it stopped on a northward angle in the passing lane of Allen Road. The path taken by the vehicle was marked by fresh grooves through the snow bank and a trail of snow, debris and skid marks on the roadway. There was approximately $5000 damage to the light pole.

The automobile was a write-off: with damage to the entire passenger side, as well as the front and rear fenders. The rear passenger wheel was broken off. [ 3 ] The road conditions were good, with the road surface being cold, dry and salt stained. There was no loose salt or gravel on the highway, nor was there any snow on the road, apart from that which had been disturbed by the movement of the Lincoln. [ 4 ] The key issues for determination in this case are: (

a) was the first breath test conducted within two hours of the offence? (

b) has the Crown has proven beyond a reasonable doubt that the defendant’s ability to operate a motor vehicle was impaired by alcohol? The Applicable Principles [ 5 ] In this case, Mr. Barahona is presumed to be innocent, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt. [ 6 ] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. [ 7 ] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more.

As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. The Evidence

[8] Sulman Khawaja testified that he was working as a taxi driver in the early morning hours of December 6, 2007. Whiletravelling with a customer, Mr. Khawaja drove from Highway 401 onto Allen Road going north. There, he observed the aftermath of acollision. A car was on an angle in the passing lane, with one of its rear tires broken off. It appeared that the car had struck the snowbank and there was a trail of snow from the shoulder of the road to the location of the vehicle. The lone occupant of the car was seat inthe driver’s seat. Mr.

Khawaja was concerned as the driver was in a difficult position and there was no one in the area to assist him. Heasked the driver whether he was okay and if he needed help. The driver, who Mr. Khawaja identified as the defendant, said that he didnot need any help. Because of Mr. Khawaja’s concerns, he called 911 as he continued on his way with his passenger. Mr. Khawajatestified that he checked the time of his cell phone before calling 911. He estimated that the call was made between 1:45 and 2:00 a.m. When Mr.

Khawaja gave his statement to the police, on December 9, 2007, the witness did not mention either the time of his observationof the damaged vehicle or the time of his 911 call. Indeed, the only time reference in the statement was an erroneous question by theofficer, placing the incident at 2:21 a.m. [9] Constables McLaughlin and Hong both described receiving a radio call at approximately 1:53 a.m. dispatching them tothe scene of the collision as a result of the 911 call from Mr. Khawaja. Constable McLaughlin arrived at 2:11 a.m. At that time thedamaged car was unoccupied and a tow truck was present. Mr.

Barahona was in the passenger’s seat of the tow truck. When the officerspoke with the defendant, at a distance of two to three feet through the passenger window of the tow truck, she noticed an odour ofalcohol on his breath and that his speech seemed a little bit slow and slurred. As Mr. Barahona exited the tow truck, he seemed slightlyunsteady on his feet. At that time, Constable McLaughlin arrested the defendant for having care or control of a vehicle while impaired.Mr. Barahona was advised of his Charter rights, cautioned and given the approved instrument demand.

Officer McLaughlin left thescene with the defendant at 2:36 a.m., two minutes after Constable Hong arrived to investigate the collision. [10] After arriving at the police station, the defendant was paraded before the Officer in Charge of the station at 2:48 a.m. The video tape of this interaction shows that the defendant’s speech was not slurred and that he appeared to have no difficulty in standingor walking. Constable Moed, the qualified technician, confirmed that the defendant’s speech was good, his face colour was normal andthat his attitude was polite and cooperative.

However, the officer noted that there was an odour of alcohol on Mr. Barahona’s breath, hiseyes were bloodshot and glassy and that his eyelids appeared droopy and half-closed. In the opinion of Constable Moed, the effects ofalcohol on the defendant were obvious. [11] After unsuccessful efforts were made to contact Mr, Barahona’s own lawyer, he received legal advice from duty counsel. Thereafter, the defendant as taken to the breath room, where his first breath test was taken at 3:35 a.m. The results of the two breathtests were 140 and 136 milligrams of alcohol in 100 millilitres of blood.

Care or Control while “over 80” [12] Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in theaccused’s blood for proving the “over 80” offence in

section 253(b). This provision states that where the breath samples were taken “assoon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later thantwo hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken” then, providedcertain other conditions are fulfilled, the prosecution may rely on the presumption of identity.

This presumption simply deems theresults of the breath tests to be proof of the accused’s blood alcohol level at the time of the offence, in the absence of ‘evidence tendingto show’ that the “over 80” result was caused by a malfunction of the approved instrument or operator error. [13] Mr. Simrod points out, correctly in my view, that there is no evidence as to when Mr. Barahona’s car was involved in thecollision. However, Mr. Khawaja saw the defendant seated in the driver’s seat of his vehicle. This observation invokes the presumptionof care and control in

section 258(

a) of the Criminal Code, which was not rebutted by the defendant. Where the statutory presumption isapplicable, the fact that the vehicle is inoperable is irrelevant: see, for example, R. v. Mackay-Clouthier, [2009] O.J. № 5778 (S.C.J.). [14] The two hour period between the commission of the offence and the first test would run from the time that Mr. Khawajalast saw the defendant in care or control of the damaged vehicle. Mr. Khawaja testified that he made the 911 call shortly after speakingwith Mr. Barahona.

His estimate that the call was made between 1:45 and 2:00 a.m. is supported by the evidence of the two officersabout the radio call at 1:53 a.m. [15] Given Mr. Khawaja’s concerns about the defendant’s situation, I am satisfied that he made the 911 call very soon afterhis departure from the collision site, at about 1:50 a.m. The first breath sample was taken at 3:35 a.m.

This was one hour and 45minutes after the defendant was in care or control of the vehicle and 15 minutes before the expiry of the two hour limit. [16] There was no challenge to the breath readings or the manner in which the approved instrument was either working oroperated. I am satisfied that the Crown has proven this charge beyond a reasonable doubt. Impaired Care or Control [17] In R. v. Stellato (1994), (SCC), 90 C.C.C.(3d) 160 the Supreme Court of Canada held that impaireddriving can be established by proof of any degree of impairment, ranging from slight to great.

However, it is clear that the impairmentmust be to the person’s ability to drive and not simply to his or her functional abilities. Equally, bad driving alone is not sufficient toprove that a person was operating a motor vehicle while her ability to do so was impaired by alcohol. Where the evidence of impairmentis so frail that it leaves a trial judge with a reasonable doubt, an acquittal must be entered. [18] In R. v. Michitsch, [2004] O.J. № 1296 (S.C.J.) Mr. Justice Hill pointed out that there is no legal requirement on theprosecution to prove impairment of all aspects of a motorist’s ability to drive.

Further, as Hill, J. noted in R. v. Censoni, [2001] O.J. №5189 (S.C.J.) at ¶47:

it must be remembered that slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor functionwhether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like. [19] A finding of impairment by alcohol is essentially a question of fact. The issue to be determined was described by theAlberta Court of Appeal in R. v.

Andrews (1996), 1996 ABCA 23 , 104 C.C.C.(3d) 392 at ¶28 as whether the totality of theaccused's conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree. [20] In this case, one of the strongest indicators of impairment is the nature of the defendant’s driving itself. His vehicle leftthe highway, travelled onto the shoulder and through a snow bank for over 100 metres, crashing into a light pole and spinning backacross the road before coming to rest in the passing lane. Serious damage was caused to both the light pole and the defendant’s car.

Theroad conditions were good. Mr. Khawaja and Constable McLaughlin both testified that they had no problems in driving that morning. There is no evidence of any external event, force or condition that caused or contributed to this collision. [21] There is uncontradicted evidence from Constables McLaughlin and Moed that the defendant had an odour of alcohol onhis breath. I accept the testimony of Constable Moed that Mr.

Barahona’s eyes were bloodshot and glassy and that the effects of alcoholon him were obvious. [22] Viewing the evidence cumulatively, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr.Barahona was in care or control of a motor vehicle while his ability to operate it was impaired by alcohol. Conclusion [23] Accordingly, I find that the defendant is guilty of both of the offences set out in the information.

I enter a conviction onthe charge of impaired care and control of a motor vehicle and a conditional stay on the charge of having care or control of a vehicle witha blood alcohol level above the legal limit. Released: February 23, 2011 Signed: “Justice Carol Brewer”