R. v. Boudreau, 2011 ONCJ 822

Information No. 11-137 Citation: R. v. Boudreau , 2011 ONCJ 822 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. BLAIR BOUDREAU ********** REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE I.W. ANDR é on October 21, 2011, at Brampton , Ontario ********** APPEARANCES : T. Powell Counsel for the Crown R. Tsang Counsel for Blair Boudreau ONTARIO COURT OF JUSTICE TABLE OF CONTENTS WITNESS Exam. In-Ch. Cr- Exam. Re- Exam. - - - -

********** REASONS FOR JUDGMENT PAGE 1 ********** EXHIBITS ********** EXHIBIT NO. PAGE NO. - - - Transcript Ordered December 21, 2011 Transcript Completed January 16, 2012 Ordering Party Notified January 16, 2012 FRIDAY, OCTOBER 21, 2011 REASONS FOR JUDGMEN T ANDR é J . (Orally): In this trial counsel for the defence raises two arguments regarding the Crown’s case against his client on charges of impaired driving and excess blood alcohol. He submits that the three civilian witnesses who saw Mr. Boudreau operating his truck on New Year’s Day, 2011, gave conflicting evidence about when the accident happened.

There is no credible evidence that the breathalyzer tests were taken within two hours of the impugned driving, according to defence counsel. To that extent, the intoxilyzer results should be excluded. Secondly, the indicia of impairment observed by these witnesses and the officers who investigated Mr. Boudreau falls short of the requisite standard of proof beyond a reasonable doubt. Regarding the first submission, I agree that the witnesses gave conflicting evidence about when the accident happened. Mr.

Antonacci who testified that he had consumed seven glasses of whisky that afternoon, noted that he had his last drink at two o’clock a.m. and that the accident occurred some time later. Ryan DiLuca, who testified that he only had three drinks, noted that he saw Mr. Boudreau reverse into his parked truck some 15 to 20 minutes after midnight. Lastly, Mr. Paul Tierney who had also consumed three drinks that night stated that the accident occurred at approximately one o’clock a.m. The first breathalyzer test was taken at 3:20 a.m. If the driving occurred at the times indicated by Mr. DiLuca and by Mr.

Tierney then the court would be estopped from relying on the certificate of a qualified breathalyzer technician. To that extent there would be no admissible evidence about Mr. Bourdreau’s blood alcohol concentration at the time of driving. In my view, however, there is credible evidence that the tests were taken within the two hours of the impugned driving. All the witnesses testified that the police arrived at the location very soon after the incident. Mr. DiLuca testified that he called the police after he tried to stop Mr. Boudreau’s plan. Mr.

Tierney testified that the police arrived within four to five minutes when one of the girls called the police after the accident. Constable Brittanee Shook, the investigating officer, testified that she got a radio call about the accident at 1:32 a.m. Because she was in the vicinity where the accident happened she arrived at the scene at 1:35 a.m. or three minutes afterwards. This confirms the testimony of Mr. DiLuca, Mr. Tierney and Mr. Antonacci, that the police arrived at the scene very quickly.

It is clear that based on Constable Shook’s evidence the accident occurred at approximately 1:30 a.m. or a couple of minutes earlier at the most. To that extent the first breathalyzer test was taken within two hours of the commission of the offence. What about the evidence of impairment? All the three civilians who saw the accident said that Mr. Boudreau appeared drunk. Mr. DiLuca and Mr. Tierney who were not as drunk as Mr. Antonacci testified that Mr. Boudreau’s vehicle was weaving across the street before the accident. Mr. Anotnacci stated that when Mr.

Boudreau exited his van he was, ”virtually stumbling”, his speech was slurred and he smelled of alcohol. Mr. DiLuca stated that he had to climb onto the hood of Mr. Boudreau’s van, reach into the van and put the gear into the park mode to stop Mr. Boudreau from driving. Before reaching into the van Mr. DiLuca banged on the front windshield twice, but Mr. Boudreau was unresponsive. Mr. Boudreau kept repeating, “what happened?” Mr. DiLuca described Mr. Boudreau as sluggish, that he was slurring his speech, and that he smelled of alcohol. Paul Tierney similarly testified that Mr.

Boudreau was slurring, that he kept repeating himself and that he stumbled when he walked. I should indicate that Mr. Tierney similarly testified that Mr. Boudreau was slurring his speech. Furthermore, that when Mr. Boudreau tried to run to his house after Mr. DiLuca had taken his keys he almost tripped on his own feet. Constable Shook also made the following observations of Mr. Boudreau: One, she smelled alcohol on his breath. Two, Mr. Boudreau walked slowly to her cruiser and appeared unsteady on his feet. Three, his eyes were wet, red and glassy.

The constable also confirmed that she spoke to the three civilian witnesses who indicated to her that the accused appeared drunk at the scene. During the trial the Crown played a video which showed Mr. Boudreau in the breath room. He provided two breath samples into an Intoxilyzer 5000C machine. They produced truncated results of 180 and 170 milligrams of alcohol per 100 millilitres of blood. There was no evidence of slurring when he spoke to the breathalyzer technician, although there was some evidence that he experienced some mood changes or swings.

In my view, there is ample evidence of impairment in this case. The manner of driving, Mr. Boudreau’s sluggishness at the scene, the fact that he was not even aware that he had backed into Mr. DiLuca’s vehicle, the condition of his eyes and his mobility problems cumulatively suggest that the effects of alcohol consumption were clearly visible on him. His speech may not have been slurred when he was in the breath room, but in my view, there is in this case, evidence to support a finding that the Crown had proven its case against Mr. Boudreau beyond a reasonable doubt.

I therefore find him guilty of the offence of excess blood alcohol. The impaired driving charge is stayed. FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, Marion Jones certify that this document is a true and accurate transcription of the recording of R. v. Boudreau , in the Ontario Court of Justice , held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3111_107_20111021_093834.dcr , which has been certified in Form 1.

(Date) (Signature of authorized person)