2017 QCCA 705, 2017 QCCA 705

R. c. Gaulin 2017 QCCA 705 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC N° : 200-10-003141-152 (200-01-159758-113) DATE: May 5, 2017 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. BENOÎT MORIN, J.A. DOMINIQUE BÉLANGER, J.A. HER MAJESTY THE QUEEN APPELLANT – prosecutrix v. CYNTHIA GAULIN RESPONDENT – accused JUDGMENT [ 1 ] The appellant appeals from a judgment of the Court of Quebec, District of Quebec (the Honourable Christian Boulet), rendered April 13, 2015, acquitting the respondent of the offences of impaired driving causing death (s. 255(3) Cr.

C .), driving with a blood alcohol level over the legal limit causing an accident resulting in death (s. 255(3.1) Cr. C .), and failing to stop at the scene of an accident causing death (s. 252(1.3) Cr. C .). The judge convicted her of the included offence of driving over the legal limit (s. 253(1)(

b) Cr. C .) and ordered a stay of proceedings on the charge of impaired driving (s. 253(1)(

a) Cr. C .). [1] [ 2 ] For the reasons of Bélanger, J.A., with which Kasirer and Morin, JJ.A., agree, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] OVERTURNS the judgment rendered on April 13, 2015; [ 5 ] ORDERS a new trial on both counts. NICHOLAS KASIRER, J.A. BENOÎT MORIN, J.A. DOMINIQUE BÉLANGER, J.A. Mtre Geneviève Bédard Director of Criminal and Penal Prosecutions For the appellant Mtre Sébastien St-Laurent For the respondent Date of hearing: February 9, 2017

REASONS OF BÉLANGER, J.A. [ 6 ] Shortly after midnight on October 8, 2011, while driving a motor vehicle for the first time, impaired by alcohol and with a level of alcohol in her body exceeding the legal limit, the respondent hit the curb and rolled the vehicle, landing upside down. In the minutes that followed, the passenger, Valérie Gagné, died as a result of the accident. [ 7 ] The appeal raises the issue of determining the burden of proof the prosecution bears in establishing the commission of the offence under s. 255(3.1) Cr.

C. (driving with a blood alcohol level exceeding the legal limit causing an accident resulting in death). [ 8 ] It also raises a second issue of whether the judge erred in concluding, after considering the offence under s. 255(3) Cr. C. (impaired driving causing death), that there was no causal link between the respondent’s impairment and the victim’s death. [ 9 ] The acquittal on the charge of failing to stop at the scene of an accident causing death is not challenged on appeal. Background [ 10 ] On October 7, 2011, the respondent, then 20 years old, attended a party at the home of some friends.

She states that she consumed six or seven shooters (ounces) of vodka between 9:00 p.m. and midnight. She told the paramedics that she had had eight or nine. At some point, Valérie Gagné and the respondent wanted to go to the convenience store to buy some cigarettes and a pack of gum. Valérie asked the respondent’s boyfriend if they could borrow his car and he agreed, albeit somewhat reluctantly. Valérie drove to the store. Once they arrived, she offered to teach the respondent how to drive. The respondent had never driven before. In her written statement, the respondent relates the events: [ translation ] ...

Jonathan gave her the keys we were all happy and excited like two little girls.

We did go to the convenience store at the Petro Canada but we didn’t go in right away when we stopped the car Val looked at me and said... “do you want to drive the car” with a big grin, I said well I don’t know how to drive Val, I’ve never driven, I don’t even know where the gas pedal and brake are you know... she said but you didn’t try it today because I was supposed to go do a bit of driving in the St Malo industrial park so I answered that no, in the end we didn’t have time and she said c’mon just a little, it’s “your” car that you’re going to buy later, you should drive it a bit, c’mon I’ll show you how to drive, you’ll see, c’mon it’ll be fun, c’mon...

I said to myself, well okay... It can’t be rocket science, you know! I asked her umm... by the way, which one’s the gas pedal and the brake... she told me the right one’s the brake and the left one’s the accelerator. We left the McDonald’s where the drive-thru is and she said turn right... I turned right she said ok now listen to me, I’ll tell you what to do where to turn and stop at the lights... you have to learn with the lights and the stop signs.

When we got to the first lights where the Halles Fleur de Lys and the Pacini are, we were laughing because when I braked I did it so badly that the car stopped with a jolt... Then she told me when you brake, do it softly, the next light after that was better but still... I didn’t know how to brake “softly” at all, we were cracking up, we were both laughing because I really wasn’t braking well at all, we were saying it was “premature” braking.

Then I took the corner on Soumande really really gently and everything was fine, I was surprised to see that you didn’t have to turn the steering wheel that much for the wheels to turn... when we got to the light at Roc Gym the light was green, so she told me to brake a little bit and turn right... which I did, she said oh right, the blinkers, it’s really important too next light turn right but you have to use the blinker... the light was coming up quick I said Val ok but how do I turn on the blinker where is it… she told me left of the steering wheel the little arm there sticking out I fiddled with it didn’t know how to make it go left or right it was flashing left right left right… I said Val, jeez, which way do I have to put it do I push it up or down she started laughing and reached her arm over to be able to help me the light was coming too fast I just had time to look up because all my focus was on the damn blinker and Val was blocking my view but right away when I was able to see the road I was coming up right against the sidewalk and the little house in front as I was trying to brake I stepped on the accelerator instead I mixed them up... not knowing what to do I yanked the steering wheel... time stopped completely, like slow motion I said “fuckk” inside my head and the only thing I remember at that moment was that Val screamed. [Translation of verbatim transcript, sic .] [ 11 ] The judge summarized the circumstances of the accident as reconstructed by the experts: [ translation ] [3] The reconstruction of the accident allows us to establish the circumstances. [4] In the moments before the collision, the Fiat was going south on Colisée Avenue at about 73 km/h. [5] Colisée Avenue has two north/south lanes.

The southbound lane splits to allow cars to turn right and go west on Hamel Boulevard. [6] At the intersection with Hamel Boulevard, the driver accelerated instead of braking when trying to turn right and go west. Her speed of approximately 68 km/h caused the vehicle either to swerve or to understeer towards the sidewalk on the south side of Hamel Boulevard and the front left wheel hit the curb. [7] After the impact, the Fiat slid along the sidewalk before being redirected towards the west and flipping onto its left side.

The vehicle then did a partial roll as it slid, first on its left side, then on its roof and hood, and finally on its right side, before landing back on

the roof and coming to a stop roughly 48 metres from the intersection with Colisée Avenue. [8] During the partial roll, the victim, who was sitting in the front right passenger seat, was partially ejected. [9] According to the information gathered from the data recorded by the airbag control module, the collision with the sidewalk was moderately severe. [10] The airbags were not deployed and the two occupants had not fastened their seatbelts. [11] The road was paved and dry at the time of the collision.

Neither weather, visibility, road conditions, nor the mechanical condition of the vehicle contributed to the accident. [12] After being placed under arrest at her home at 2:10 a.m., the accused was driven to the police station to provide breath samples which revealed a blood alcohol content of 155 mg at 3:12 a.m. and 142 mg at 3:36 a.m. Trial judgment [ 12 ] At trial, the respondent admitted to driving with a blood alcohol level exceeding the legal limit of 80 mg of alcohol in 100 mL of blood, but denied that she was impaired at the time.

She also maintained that the appellant had not proved the causal link between impaired driving or driving with a blood alcohol concentration exceeding the legal limit and the victim’s death. [ 13 ] The trial judge accepted the undisputed testimony of expert toxicologist André Dion who determined through retrocalculation that at 12:30 a.m. the respondent’s blood alcohol level was between 158 and 188 mg. [2] The judge added that these levels [ translation ] “reveal without a doubt a state of inebriation or drunkenness”. [ 14 ] According to the judge, the evidence established that the respondent’s language was unaffected, and neither was her perception/reaction time, which fell within the normal range for sober people. [ 15 ] He found, however, that the respondent was [ translation ] “a very poor judge to accurately assess herself in such a situation” and that she might be [ translation ] “honestly mistaken”. [3] [ 16 ] Acknowledging that the case law requires nothing more than evidence of any impairment whatsoever, the judge held that the respondent was impaired at the time of the accident. [ 17 ] Despite this finding, the judge decided that the causal connection between the offence and the victim’s death was not proved.

Although he recognized that, according to the case law, [ translation ] “the degree of intoxication has a critical impact on the causal connection because it affects intellectual, sensory, and motor functions,” [4] he accepted the version of the respondent, who [ translation ] “withstood the harshest of cross-examinations” and whose testimony was credible when considered in light of the evidence as a whole. [5] He concluded: [ translation ] [119] In this case, the accused has provided plausible explanations for the causes of the accident, which I accept.

The victim obstructed her view by leaning over to activate the turn signal, and the accused reacted within a perception-reaction time consistent with that of a sober person, but stepped on the wrong pedal while turning the steering wheel.

Given her lack of driving experience, I believe the accused that this error is not related to her having consumed a large amount of alcohol. [120] Mere evidence that the driver’s ability to operate the vehicle was impaired is not sufficient to establish the causal connection. [121] The causal connection between the blood alcohol level and the accident, as well as that between the impairment and the accident have not been proved beyond a reasonable doubt. Issues [ 18 ] The appeal raises two issues:

(1) What is the burden of proof the prosecution bears with regard to the offence in s. 255(3.1) Cr. C .?

(2) Did the judge err in his analysis of the causal connection that must be established to prove the offence outlined at s. 255(3) Cr. C .? ANALYSIS [ 19 ] The two provisions at issue read as follows:

Impaired driving causing death 255(3) Everyone who commits an offence under paragraph 253(1)(

a) and causes the death of another person as a result is guilty of an indictable offence and liable to imprisonment for life. Blood alcohol level over legal limit — death

(3.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in the death of another person is guilty of an indictable offence and liable to imprisonment for life. Conduite avec capacités affaiblies causant la mort 255(3) Quiconque commet une infraction prévue à l’alinéa 253(1)

a) et cause ainsi la mort d’une autre personne est coupable d’un acte criminel passible de l’emprisonnement à perpétuité. Alcoolémie supérieure à la limite permise : mort

(3.1) Quiconque, tandis qu’il commet une infraction prévue à l’alinéa 253(1)b), cause un accident occasionnant la mort d’une autre personne est coupable d’un acte criminel passible de l’emprisonnement à perpétuité. [Emphasis added.] [ 20 ] Paragraph 253(1)(

a) sets out the offence of impaired driving, while paragraph 253(1)(

b) establishes the offence of driving with a blood alcohol level exceeding the legal limit (80 mg/100 mL of blood). First issue: What is the burden of proof with regard to the offence in s. 255(3.1) Cr. C.? [ 21 ] The appellant maintains that, to prove the offence codified at s. 255(3.1) Cr. C ., it is not necessary to establish a causal link between the accused’s blood alcohol level and the accident resulting in the death of the victim. It urges us to find, as did the Court of Appeal for Saskatchewan in R. v.

Koma , [6] that mere proof of a “temporal” link between these two elements is sufficient. [ 22 ] In the view of the respondent, there is no doubt that the causal connection between driving with a blood alcohol level over the legal limit and the accident resulting in death must be proved. [ 23 ] It is worth noting that the offence under s. 255(3) Cr. C ., which concerns driving while impaired by the effect of alcohol, a drug, or a combination of the two, was introduced into the Criminal Code in 1985 and that its parameters are well established. [ 24 ] The wording of s. 255(3) Cr.

C . provides that anyone who drives while impaired and causes the death of another person as a result is guilty of the offence. In French, the provision reads, “ et cause ainsi la mort d’une autre personne ”. The need to establish a causal link between impairment and the death of another person is clear. [ 25 ] Quebec and Canadian case law applying s. 255(3) is also clear. The prosecution must prove beyond a reasonable doubt that the accused drove a vehicle while impaired and that the impairment caused by alcohol or a drug was a significant contributing cause of the death of another person.

A link between impairment and the death must therefore be established. [7] [ 26 ] The offence set out in s. 255(3.1) Cr. C . is more recent, having been introduced into the Criminal Code in 2008. It covers cases where a driver who has the care or control of a vehicle, while having a blood alcohol level exceeding the legal limit, causes an accident resulting in the death of another person. [ 27 ] It must be acknowledged that the wording used by the legislator in the new offence under s. 255(3.1) Cr. C . differs from that in s. 255(3) Cr.

C ., regarding which the case law has clearly established the need to demonstrate a causal connection between impaired driving and the death. [ 28 ] The objectives of the 2008 statutory amendments were numerous and included facilitating detection and investigation of cases involving driving while impaired by a drug and increasing minimum sentences for impaired driving. Specifically, the amendments authorize trained police officers to impose challenges and tests to determine whether a driver’s ability is weakened by a drug or the combined effect of a drug and alcohol.

One of the goals of the statutory addition was to toughen sentences for impaired driving and, in cases of driving while impaired by alcohol, to limit challenges of blood alcohol test results. [8] The legislator created two new offences in the same vein, including the one before us in s. 255(3.1) Cr. C . When enacting this new legislation, Parliament also amended the English version of s. 255(3) Cr. C . by replacing the word “thereby” with the expression “as a result”. [ 29 ] The parliamentary proceedings reveal that in enacting s. 255(3.1) Cr.

C ., the legislator wished to lighten the burden of proof on the prosecution, who was required, as in this case, to have an expert toxicologist testify to establish that a person whose blood alcohol level was over 80 mg per 100 mL of blood was impaired. [9] [ 30 ] Canadian case law appears to be divided on how the new provision should be applied. Surprisingly, very little has been written on the subject in Quebec. [10]

[ 31 ] In scholarly commentary, Professors Solomon and Chamberlain opine that the new provision exempts the prosecution from having to establish a causal connection between blood alcohol level and the accident. [11] [ 32 ] In its 2012 judgment in R. v. Jagoe , [12] the Court of Appeal of New Brunswick stated its view that s. 255(3.1) Cr. C . requires proof that the accused’s blood alcohol level was a real factor in causing the accident resulting in death. [ 33 ] In that case, the trial judge required the prosecution to demonstrate that the accused’s blood alcohol level contributed to the victim’s death.

On appeal, Bell, J.A. stated his opinion that while the prosecution did not have to establish that driving with blood alcohol over the legal limit was the cause of death, it did have to prove that it was a factor causing the accident: “The ‘over 80 driving’ must, in order to convict, be a real factor in the cause of the accident”. [13] This statement was made in obiter , however, since the Court found that there had been no accident within the meaning of the provision. [ 34 ] In the case before us, the judge applied a variant of this obiter and, regardless of the respondent’s blood alcohol level, required proof that her abilities were also impaired by alcohol and that this contributed to the accident.

Indeed, an expert toxicologist testified on that issue. [ 35 ] This approach, however, is not consistent with the intention expressed by the legislator in drafting the provision. Unless Parliament spoke in vain or created a pointless offence, the introduction to s. 255(3.1) Cr. C. must create a different offence from the one already set out in s. 255(3) Cr. C. What is more, the very drafting of the new provision contradicts this approach. [ 36 ] In 2015, in R. v. Koma , [14] the Court of Appeal for Saskatchewan specifically addressed this issue (although in the context of s. 255(2.1) Cr.

C . [15] ) and decided that the prosecution did not have to establish a causal link between the accused’s blood alcohol level and the victim’s injury or the accident. It merely had to establish a temporal link between the two elements: [27] On a plain and ordinary reading, and in its grammatical and ordinary sense, the wording of the offence under s. 255(2.1) requires the Crown to prove three things beyond a reasonable doubt so as to justify a conviction: (

a) the accused had a blood alcohol concentration of over .08 while operating a motor vehicle or having care or control of a motor vehicle, which is the offence under s. 253(1) (

b) of the Criminal Code ; (

b) the accused caused an accident while so operating a motor vehicle or having care or control of a motor vehicle; and (

c) the accident resulted in bodily harm to another individual. On this straightforward reading, the Crown must establish a temporal link between an accused’s prohibited blood alcohol concentration and the occurrence of an accident that has resulted in bodily harm to another, but it need not establish a causal link between those two elements. [28] This is the

interpretation given to s. 255(2.1) by the judge in this case and by the Court in R v. Carver , 2013 ABPC 140 , 558 AR 50 [ Carver ], where Rosborough P.C.J. observed: [60] Subsection 255(2.1) C.C. does not causally link the “underlying offence” of operating a motor vehicle with a proscribed blood/alcohol concentration with the additional element of causing an accident that brings about bodily harm. Rather, it conjoins two separate proof elements: (1) proof of operating a vehicle with a proscribed blood/alcohol concentration; and (2) proof that the accused caused an accident resulting in bodily harm to a person.

The prosecution must prove beyond a reasonable doubt that the accused caused an accident resulting in bodily harm but there is no requirement of proof that the accused’s proscribed blood/alcohol concentration in any way brought about or contributed to that accident. [29] This observation is well-founded because the plain and ordinary meaning of s. 255(2.1) is not altered by context. Parliament has used different language to describe the causation requirements for other consequence-related offences involving the use of a motor vehicle.

As Rosborough P.C.J. noted in Carver , the word thereby or its equivalent is conspicuously absent from s. 255(2.1); whereas, as the judge in this case observed, the offence of dangerous driving causing bodily harm, for example, is committed when an individual drives dangerously and thereby causes bodily harm.

The absence of thereby or its equivalent from s. 255(2.1) cannot be an oversight by Parliament. … [31] The absence from s. 255(2.1) of a causal connection similar to that found in s. 255(2) reflects the difficulty of requiring the Crown to prove an individual has caused an accident because he or she was over .08, without the Crown leading some form of expert evidence as to the effect of blood alcohol concentrations in excess of .08 on that individual’s ability to operate a motor vehicle that is causally tied to the accident in question.

However, this kind of evidentiary difficulty does not arise in cases of impaired driving or dangerous driving where objective indicia of an individual’s impairment or recklessness provide an evidentiary basis for a court to conclude the causes of an accident might include an inability to operate a motor vehicle brought on by impairment, negligence or recklessness. For this reason, the causation element of the offence of impaired driving causing bodily harm (s. 255(2)) is different.

There, the Crown has to prove a causal link between an individual’s impaired operation of a motor vehicle and bodily harm to another person. [32] Thus, for a conviction to lie under s. 255(2.1) of the Criminal Code , I conclude the Crown must prove beyond a reasonable doubt that an individual, while operating a motor vehicle or in care or control of a motor vehicle, had a blood alcohol concentration exceeding 80 mg of alcohol in 100 mL of blood and the individual caused an accident that resulted in bodily harm to another; but, s. 255(2.1) does not require the Crown to prove the individual’s over .08 blood alcohol concentration caused the accident.

The judge made no error when she concluded similarly. [ 37 ] The Court of Appeal for Saskatchewan cited R. v. Carver , [16] a judgment rendered by the Provincial Court of Alberta in 2013. In that judgment, Rosborough, J. found that s. 255(2.1) Cr. C . requires proof that the accused caused the accident and stated that a causal

link between the accused’s blood alcohol level and the accident need not be proved. This line of authority was followed in Quebec by Anouk Desaulnier, J.C.Q., in two cases. [17] [ 38 ] In my opinion, this is the most fitting approach. [ 39 ] I nevertheless believe that more than a temporal link between driving with a prohibited blood alcohol level and the accident is needed. [ 40 ] A double causal link must be established. First, it must be shown that the driver caused the accident . Then, it must be demonstrated that the accident resulted in injury to or the death of a person .

The use of the word “cause” indicates that the legislator intended to exclude cases where the driver’s wrongful conduct cannot be linked to the accident. The driver must necessarily have been the effective cause of the accident. [ 41 ] This

interpretation is consistent with the language of the statutory provision and the legislator’s choice when it chose different wording for the new offence in 2008. [ 42 ] This

interpretation also ensures that the accused’s blameworthy conduct was in relation to the prohibited consequences. Indeed, an accused should not be convicted merely because, while driving with a blood alcohol level over the legal limit, he or she was involved in an accident that cannot be attributed to him or her in any way [ 43 ] Through his or her conduct or driving, the accused must have acted or failed to act in such a way as to have caused an accident.

The accused’s driving must be evaluated against that of a reasonable driver. [ 44 ] Some wrongdoing must be attributable to the accused, who therefore must be a significant contributing cause of the accident. On this point, the tests adopted by Arbour, J. in R. v. Nette [18] and by Karakatsanis, J. in R. v.

Maybin [19] are generally used. [ 45 ] In short, the accused must have significantly contributed to causing the accident, granting, however, that his or her driving need not be the sole cause of the accident. [ 46 ] The authors Manning and Sakoff also state that any problems that might arise as a result of the relatively low “significant contributing cause” standard can be offset in sentencing.

They add that this is the stage of proceedings where any weaknesses in the chain of causation should be considered: Weaknesses in the chain of causation are regarded as a matter to be assessed as a factor in the sentencing process. … It should be recognized that most problems created by a low causal standard can be rectified, for the most part, in the sentencing process, where the accused’s level of moral responsibility can be more sensitively addressed. [20] [ 47 ] Furthermore, a reading of the trial judgment reveals that requiring proof of a causal connection between the blood alcohol content and the death gives rise to an incongruity. [ 48 ] It has long been recognized that the offence of driving with a blood alcohol level exceeding 80 mg of alcohol in 100 mL of blood does not require proof that the accused’s abilities were impaired by alcohol.

Evidence of a lack of symptoms is irrelevant. [21] If evidence of the symptoms is irrelevant under paragraph 253(1) (

b) Cr. C ., it should also be irrelevant under s. 255(3.1) Cr. C ., which requires proof of the included offence. [ 49 ] In his analysis under s. 255(3.1) Cr. C ., the trial judge was not required to determine whether the respondent was impaired. [ 50 ] Instead, he had to consider whether: - the respondent was driving a motor vehicle with a blood alcohol level exceeding the legal limit, that is, whether she violated paragraph 253(1)(

b) Cr. C .; - she caused an accident, in that she was a significant contributing cause of the accident as a result of her driving, actions or omissions, granting that her driving need not be the sole cause of the accident; - the accident resulted in the death of another person. [ 51 ] Unlike the offence codified under s. 255(3) Cr.

C ., for which the legislator requires proof of the causal connection between the impairment and the death of a third party, the connection required in this case is (1) between the accused and the cause of the accident and (2) between the accident and the death of a person. [ 52 ] A new trial should therefore be ordered on this charge. Second issue: Did the judge err in law in his analysis of the causal connection (s. 255(3) Cr. C.)? [ 53 ] The prosecution may only appeal from an acquittal where there has been an error of law.

The circumstances permitting the intervention of an appellate court include the following: 1. A finding of fact for which there is no evidence; 2. The legal effect of a finding of fact or undisputed facts is erroneous; 3. The assessment of the evidence is based on a faulty legal principle; 4. The judge failed to consider all of the evidence in relation to the ultimate issue of guilt or innocence of the accused. [22]

[ 54 ] In addition, the alleged error of law must have an effect on the verdict. [23] [ 55 ] Cases considering the included offence in s. 255(3) have recognized that the prosecution is not required to prove beyond a reasonable doubt that driving while impaired was the sole cause of death and the only factor at issue. [24] Rather, the prosecution must establish that impairment by alcohol or drugs was a contributing cause of the death in more than a trivial or insignificant way. [25] The link must be sufficient, outside the de minimis range, “a significant contributing cause”.

The causal connection between impairment and the death may be inferred from the evidence as a whole.

For this reason all elements must be considered, including the degree of intoxication of the accused. [26] [ 56 ] The Supreme Court has stated that causation issues are case-specific and fact-driven. [27] It has also recognized that a finding of legal causation is “based on concepts of moral responsibility and is not a mechanical or mathematical exercise”. [28] The debate must always be focused on whether the accused should be held responsible in law for the consequences of his or her actions or whether holding the accused responsible would amount to punishing a morally innocent person. [29] *** [ 57 ] The judge made various findings.

On the one hand, he highlighted that the evidence showed that the respondent’s language was not affected and neither was her perception/reaction time, which fell within the normal range for sober persons. [30] On the other, he found that the testimony of the expert André Dion, stating that levels of 158 to 188 mg of alcohol per 100 mL of blood [ translation ] “reveal without a doubt a state of inebriation or drunkenness”, was uncontradicted, except by the respondent herself who was [ translation ] “a very poor judge to accurately assess herself in such a situation” and who may be [ translation ] “honestly mistaken”. [31] [ 58 ] The judge thus found that the respondent was impaired at the time of the accident.

He also recognized that [ translation ] “the degree of intoxication has a critical impact on the causal connection because it affects intellectual, sensory, and motor functions”. [32] He stated, however, that he accepted the version of the respondent, who [ translation ] “withstood the harshest of cross-examinations” and whose testimony, analyzed in light of the evidence as a whole, was credible. [33] He concluded: [ translation ] [119] In this case, the accused has provided plausible explanations for the causes of the accident, which I accept.

The victim obstructed her view by leaning over to activate the turn signal, and the accused reacted within a perception-reaction time consistent with that of a sober person, but stepped on the wrong pedal while turning the steering wheel.

Given her lack of driving experience, I believe the accused that this error is not related to her having consumed a large amount of alcohol. [ 59 ] The judge erred, however, when he stated that the respondent’s perception/reaction time was consistent with that of a sober person, since the evidence does not establish how much time elapsed from the moment she looked up to the moment she accidentally stepped on the accelerator. [ 60 ] Moreover, there is a contradiction, at least in appearance, between the judge’s finding regarding the consequences on the respondent’s intellectual, sensory, and motor functions as described by the toxicology expert and the fact that he likens her driving to that of a sober person. [ 61 ] What is more, the judge did not meet his obligation to consider the evidence as a whole. [ 62 ] Slamming on the accelerator is only one of the contributing causes of the accident.

The trial judge did not discuss the evidence that the respondent was driving much too quickly for that location, something the latter does not seem to realize, as she stated that she was driving at the proper and normal speed. The abrupt wrenching of the steering wheel 1.3 seconds before the impact should also have been considered. [ 63 ] The judge does not appear to have taken into consideration the respondent’s decision to drive that night, when her blood alcohol level was at least 153 mg/100 mL and when she had no experience whatsoever in driving a motor vehicle.

This decision should have been analyzed in light of the expert evidence on the effects of intoxication on the respondent’s judgment and reactions. [ 64 ] A new trial should also be ordered on this charge. [ 65 ] I would therefore allow the appeal, overturn the trial judgment, and order a new trial on both charges. DOMINIQUE BÉLANGER, J.A.