R. v. Ostrowski Date:, 2014 BCPC 162

Citation: R. v. Ostrowski Date: 20140522 2014 BCPC 0162 195672-2-C Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Andrew Henry Ostrowski P. D. GULBRANSEN Winston Sayson, Q. C., Angela Lee

Stephen Hutchison Surrey, B.C. Feb. 25, 26, 27; Mar. 19, 25, 26, 28; Apr. 1, 3, 4, 16, 17, 2014 Date of Judgment: May 22, 2014 Introduction [1] On September 6, 2011, at 8:30 p.m., a Honda CRX traveling south on 132nd Street in Surrey entered the intersection at 88th Avenue on a red light. A Nissan SUV traveling east on 88th entered the intersection on a green light and collided with the passenger side of theHonda. When the vehicles came to a stop, the driver of the Honda fled. A passenger in the Honda was badly injured, dying a few hourslater in the hospital.

The police located the accused 20 minutes later walking on a side street about 6 blocks away. They soon came tobelieve that he was the driver of the Honda and that he was intoxicated. [2] Mr. Ostrowski is charged with: 1) Causing death to a person when operating a motor vehicle while his ability to drive was impairedby alcohol and while his blood alcohol level exceeded 80 mg percent. 2) Dangerous operation of a motor vehicle causing death. 3)Leaving the scene of an accident, knowing that a person had been injured, with intent to escape civil or criminal liability. [3] Mr.

Ostrowski denies that he was the driver of the CRX. He testified that he was a passenger sitting in the middle of the car and thathe fled along with the driver almost immediately after the collision. He said that he ran away because he knew there were warrantsoutstanding for his arrest. [4] The Crown relies upon an extensive body of circumstantial evidence which it says proves conclusively that there were only twopersons in the CRX and that the accused was the driver.

This includes testimony of four witnesses who stated that only one person leftthe Honda and evidence that an ignition key for the CRX was found in his pocket. It also includes conduct by the accused after thecollision, which tends to show that he was the driver. These are: his flight from the scene and several false statements in which theaccused denied that he was even involved in a motor vehicle accident. The Crown further says that the accused’s testimony is notcredible. [5] Mr. Ostrowski replies that the testimony of three other Crown witnesses supports his testimony.

One said that there was a thirdperson with the accused and the deceased before the Honda was driven away from the accused’s residence; another said that he sawthree persons inside the Honda and that two of them fled after the collision; the third witness said that he briefly followed two men who appeared to be leaving the accident scene and walking southbound on 132nd. [6] Mr. Ostrowski argues that this evidence, along with his own testimony, must create at least a reasonable doubt as to his guilt. [7] The accused does not dispute that the driving conduct was dangerous.

Rather, the central issue in this trial is whether the Crown hasproven beyond a reasonable doubt that the accused was the driver of the Honda CRX. In determining that issue, the most important taskfor me will be to assess both the credibility of the accused’s testimony and the reliability and accuracy of the testimony of theeyewitnesses. Relevant Legal Principles Reasonable Doubt and the Credibility of an Accused [8] In R. v. W. (D), (SCC), [1991] 1 SCR 742, the Supreme Court of Canada articulated the instruction that must begiven to a jury in a case in which an accused person has testified.

At p. 758, Cory J stated that the instruction to the jury should be asfollows: “First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused,but are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you mustask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidenceof the guilt of the accused.” [9] A judge sitting alone is, of course, bound to apply the same test.

Dangerous Operation of a Motor Vehicle [10] A person commits the offence of Dangerous Operation of a Motor Vehicle if he or she engages in driving conduct whichconstitutes a marked departure from the standard expected of a reasonably prudent driver in the circumstances. In addition, a court mustconsider evidence concerning the actual state of mind of the accused (if there is any such evidence), “… to determine whether it raises areasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by thisconduct.” R. v. Beatty 2008 SCC 5.

Post Offence Conduct [11] The actions of an accused after a crime has been committed may be used as evidence against him.

“It is well-established that an inference of guilt may be drawn from circumstantial evidence such as flight from the scene of a crime orthe fabrication of lies relating to the offence in question. However, in charging the jury, a trial judge must take care to ensure thatevidence of flight is not misused. The danger exists that a jury may erroneously lead from such evidence to a conclusion of guilt if notproperly instructed.” R. v.

Arcangioli, (SCC), [1994] 1 SCR 129 at p 143. [12] The trier of fact must of course consider any explanation given by the accused for fleeing from the scene of a crime and mustconsider any circumstances which suggest that flight may not be evidence of “consciousness of guilt”. [13] The Crown may adduce an exculpatory statement made by an accused for the purpose of proving that the accused made a falsestatement related to his suspected involvement in a specific crime. Such evidence is admissible if the Crown establishes that the accusedfabricated the statement.

The trier of fact may then use this fabricated false statement as “after the fact conduct”. Such false statementsmay also show “consciousness of guilt”. It is circumstantial evidence which may be used in conjunction with all of the other evidence toinfer the accused’s guilt. [14] It is not enough for the trier of fact to disbelieve the statement. There must be evidence independent of the evidence whichestablishes that the statement is false, to prove that the accused fabricated the statement. R. v. O’Connor, (ON CA),[2002] OJ No. 4410 (ONCA).

It is important that a court not give undue emphasis to disbelieved statements. Otherwise an accused risksbeing convicted not because the case has been proven against him beyond a reasonable doubt, but because he lied. Proving that astatement is false does not prove that its opposite is true. O’Connor supra; R. v. Hein 2008 BCCA 109 at paragraph 53.

Impaired Operation of a Motor Vehicle Causing Death [15] A driver who operates a motor vehicle while his ability to drive is impaired by alcohol will be held responsible for causing thedeath of someone if the fact that the driver’s ability to drive was impaired by alcohol was a contributing cause beyond “de minimis” tothe other person’s death.

Presumption of Intent when the Driver Leaves the Accident Scene [16] S. 252(2) of the Criminal Code provides that the driver of a motor vehicle who has been in an accident involving another vehiclemust stop his vehicle, offer assistance to any person who has been injured and must give his name and address. Failure to do so, in theabsence of “evidence to the contrary”, will constitute proof that the accused intended to escape civil or criminal liability. [17] The British Columbia Court of Appeal dealt with the issue of this presumption in R. v. Sadler 2008 BCCA 491.

At paragraph 26, D.Smith JA stated: “Section 252(2) creates a rebuttable presumption that an accused intends to escape civil or criminal liability by leaving the scene of anaccident. Evidence to the contrary that is not rejected by the trier of fact may rebut that presumption. Cases interpreting this sectionconfirm that “evidence to the contrary” does not shift the burden of proof to the accused. Rather, it provides a basis whereby evidencewhich tends to show that an accused may not have possessed the specific intent required will support an acquittal verdict.” Circumstances

a) Before the Collision [18] Over several months preceding September 6, 2011, Andrew Ostrowski and his friend, Sergio Martinez, had been working on two motor vehicles which were being stored at Ostrowski’s residence at 13363 96th Avenue in Surrey. One was a Ford Capri owned byOstrowski. The other was a Honda CRX which had been left there by a mutual acquaintance of theirs, Michael Turko. The Honda CRXwas still registered in the name of Turko’s aunt. Turko had asked Martinez, who had some training as a mechanic, to do enough work onit to make it roadworthy so that it could be licensed.

Turko thought that he only gave Martinez one set of keys for the CRX. Heconceded, however, that he was not certain and that in any event, these were the type of keys that can be easily duplicated. [19] Ostrowski lived in a basement suite at the residence with Laura Williams and her children. Ms. Williams said that on September 6,2011, she made dinner for Ostrowski and Martinez who had been doing some work on the Capri. Ostrowski and Martinez were goodfriends and often worked on the vehicles together. She said that they each drank some rum and Coke at dinner but no more than twodrinks each.

She said that Martinez was becoming intoxicated but that she did not notice any problems with Ostrowski. [20] After dinner, the two men returned to their work outside. Ms. Williams said that shortly afterwards she noticed that there was a thirdman with Martinez and Ostrowski. She never saw his face, only his back. She did not know how long they were together. The next timeshe looked outside, the CRX was gone and none of the men were in the yard. [21] Ms. Williams confirmed that the CRX had been at their property for quite some time. She said that she had seen Ostrowski drivethe vehicle perhaps one time.

She confirmed that the CRX was a very small vehicle designed only to have one driver and a passenger.There were no rear seats. She also confirmed, however, that it was possible for a third person to ride in the vehicle by sitting astride thegear shift in the middle and sitting partially in the back of the vehicle.

She said that she had done it once herself even though she found itto be particularly uncomfortable. [22] Brian Janes, who lived in the upstairs portion of the house, said that he returned home in the evening of September 6, 2011, atabout six or 6:30 p.m., and saw Martinez and Ostrowski working on a vehicle. He recalled that they were both drinking beer. He did notsee any other cans of beer around the area and did not notice whether they were intoxicated. Mr. Janes said that he left the area about6:30 p.m. Martinez and Ostrowski were still working on the car.

When he returned at about 10:00 p.m., Martinez and Ostrowski weregone and so was the CRX.

[ 23 ] It is likely that the accused and Martinez left his residence in the CRX sometime shortly after 8:19 p.m. Records relating to Ostrowski’s cell phone indicate that the phone made or received a number of calls during that evening. Those calls were transmitted by a cell tower which was located very close to his address on 96 th Avenue. The last such call was made at 8:19 p.m. The next call, made at 8:42 p.m., used a different cell tower located close to the scene of the collision.

b) The Collision [ 24 ] The next person to see the CRX was Matthew Fialleau. He drove his vehicle southbound on 132 nd having turned onto it from 96 th Avenue. Shortly after he made the turn, the CRX emerged from a parking lot and also turned south on 132 nd cutting off Fialleau’s vehicle. That made him so angry that he “tailgated” the CRX for a while. During that time, he said he could see inside the vehicle and believed that there were three persons in it. He also became very concerned about the manner in which the CRX was being driven.

He described it as weaving quite badly from side to side within the southbound lane. Mr. Fialleau was so concerned about the driving that he called 911 on his cell phone and reported the bad driving to the police. As they approached the intersection with 88 th Ave., another vehicle or two had got between his vehicle and the CRX. [ 25 ] Mr. Fialleau said that the light for southbound traffic on 132 nd was red. There were some vehicles which had already stopped ahead at the intersection.

He said that the CRX approached those vehicles, stopped, but then moved into the left turn lane, then drove straight into the intersection against the red light. An eastbound vehicle collided with the passenger side of the CRX. [ 26 ] The witness said that he watched until the two vehicles came to a stop. There were one or two vehicles ahead of him when he saw the accident. He had stopped his vehicle or was travelling very slowly when it happened. As well, he was likely still on the phone to the police. He said that two men quickly got out of the CRX and began running or jogging southbound on 132 nd .

He was unable to give anything other than a general description of them. He recalled that one of them was wearing shorts and the other jeans. He believed that they were both wearing shirts. [ 27 ] Sanjay Arora was driving his Nissan Armada SUV east on 88 th Avenue when he entered the intersection at 132 nd Street on a green light. He said that he was driving at about 50 to 60 km/h in the curb lane. He believed that he was halfway through the intersection when a vehicle appeared right in front of him. His SUV struck that vehicle – the Honda CRX – on the passenger side.

Both vehicles spun around several times and came to a stop at the south east corner of the intersection. The SUV ended up still facing the passenger side of the CRX almost at right angles to it. In the photographs of the scene, it appears that the hood of the SUV was only a foot or two away from the passenger side of the CRX. [ 28 ] Mr. Arora was certain that there were only two persons in the CRX. He said that he saw the driver get out of the driver’s door of the CRX and walk away. He said that the driver was a man; was not wearing a shirt and appeared to have some blood on him. [ 29 ] Another eyewitness, Mr.

Herr, is a truck driver who was driving on 132 nd and who stopped at the intersection with 88the Avenue when the accident occurred. He was facing north. He said that the light for traffic on 132 nd was red. He believed that the Honda was speeding although he had some difficulty in stating a particular speed. He said that it must have been going faster than 80 km an hour. He confirmed that the Honda drove right through a red light and that a vehicle proceeding on the green light for 88 th Avenue struck the Honda.

He said that he was the first person to go to the Honda and actually held the door open for the driver to get out. He was certain that there were only two people in the vehicle. His description of the driver is somewhat problematic, maybe because of the fact that he was speaking through an interpreter. He described the driver as being 6 feet or taller and as looking “healthy”. I don’t know what that means. He said that the driver did not have a shirt on. He tried to tell the driver that he needed medical attention but the driver ignored him.

In his statement to the police, it appears that he said that the driver was “middle-age”. The witness did say, however, that in his culture, they regard “middle-age” as being between 30 and 45. There is no question though that he used the phrase “middle-age”. [ 30 ] Scott Roy’s residence is at the southeast corner of the intersection. He and his stepson, Riley McRae, were in the living room when the accident occurred. Mr. Roy said that he heard the squealing of tires and then a loud crash. He immediately got up and went outside to see what happened.

He briefly returned to his living room to get his cell phone and then went back outside again. The two cars involved in the accident were very close to his fence. [ 31 ] Mr. Roy said that he saw a man get out of the vehicle from the driver’s side door. He assumed that this was the driver. He believed that there may have been bystanders who were helping the driver get out. He said that the man looked a little dazed. He described him as heavyset, weighing perhaps 170 to 190 pounds and between 19 to 21 years old. He was wearing black jeans but was not wearing a shirt.

He said that the man had short dark hair and light brown skin. He did not notice any tattoos on this man. [ 32 ] Mr. Roy said that the driver walked away headed southbound. He did not really pay too much attention to the man after that, but instead focused on the passenger, who was obviously in great distress. After he had been observing the scene for about 20 minutes, Mr. Roy heard a cell phone ringing from somewhere in his yard. He saw that there was a cell phone about 3 feet away. He picked it up and later gave it to the police. It turned out that this was Ostrowski’s cell phone.

The person who had been calling was Corina Tanner, Martinez’s fiancé. [ 33 ] On cross-examination, Mr. Roy agreed that he had been shown a photo lineup to see if he could identify anyone as the person who fled from the accident scene. He identified someone, but that person was not the accused. [ 34 ] Riley McRae was 16 years old when this incident occurred. When he and his stepfather heard the sound of the crash, he quickly ran outside and went to the fence facing the southeast corner of the intersection. He said that he was approximately 10 to 12 feet away from the two vehicles.

He was closer to the SUV than he was to the Honda and the SUV thereby partially blocked his view of the CRX. Otherwise, he said that visibility was good. He said that a man got out of the driver’s side of the vehicle looking a little stunned. He said the man checked back inside the car, apparently concerned about the passenger; stood up, looked around and began going south on 132 nd Street. The man at first ran and then started walking.

[ 35 ] He described the man as being between 5 foot 9 and 5 foot 10; weighing about 200 pounds and having dyed blonde hair on the top of his head and brown on the sides. He said the man was not wearing a shirt and was wearing black track pants with a white stripe. He said the man had tattoos on his body that ran across his back and the back of his arm and shoulder. He saw no other persons leave the vehicle. [ 36 ] Mr. McRae said that he had a clear view of the man’s face for about a minute and a half. He was later shown a series of photographs in a “photo lineup” process.

He chose a photograph of the accused as being the driver. [ 37 ] Several Surrey firefighters attended the scene very soon after the accident occurred. (There is a fire hall right at that intersection.). Cpt. Steve Robinson said that when he arrived, someone told him that two men had left the scene. He said that other firefighters were attending to the injured passenger in the CRX so that he thought he would see where the two men were going. [ 38 ] Cpt. Robinson said that the men were walking southbound on 132 nd . He was about 30 to 50 yards behind them. He kept that distance between them for about four blocks.

He noticed that one of these men was not wearing a shirt and then observed him put on a white T-shirt. After following them for four blocks, he stopped and returned to the scene. He was unable to give any specific description of them. [ 39 ] Corine Tanner was not at the accident scene but had spoken on the phone earlier that day with both Sergio Martinez and the accused. Sergio Martinez was her fiancé. She said that she worked at BC Ferries and was working on the evening shift which ended at 8:00 p.m. Her practice was to catch a 9:00 p.m. bus at the ferry terminal to come home to Surrey.

She said that Sergio would often take the bus to meet her at Scott Road Station. [ 40 ] She said that she talked to Sergio several times that day on the phone. Martinez used Ostrowski’s cell phone to speak to her. Ostrowski usually permitted Sergio to use his phone for this purpose. She said that she first talked to Sergio at about 4:00 p.m. She spoke to him several other times that evening. In her opinion, Sergio had been drinking and became more and more intoxicated as the evening progressed.

She spoke once to Ostrowski at about 4:00 p.m. and believed that he was intoxicated as well. (While it was likely that she was able to recognize when her fiancé was intoxicated, she provided little evidence to support her opinion about Ostrowski’s condition.) Ostrowski’s Statements to Police Officers and Medical Personnel [ 41 ] The first police officers at the scene learned that the driver and perhaps another person had fled. Some officers were dispatched to search the general area for this person (or persons).

Just before 9:00 p.m., Constable Zagorsky and Constable Minhas quite unexpectedly came upon the accused when they turned off 132 nd Street onto 82A Avenue to discuss their strategy in doing this search. The accused emerged from the vicinity of some industrial buildings, walking towards 132 nd Street. Because he looked suspicious, Constable Zagorsky decided to ask him some questions. [ 42 ] He was wearing a white T-shirt, which had some blood on it, and black jeans. It appeared that his right wrist or lower arm was injured.

Constable Zagorsky asked, “Are you okay?” Ostrowski answered, “My arm is sore.” The officer asked why it was sore; where was he coming from and where was he going? The accused replied that he had ”Tried to help some guy at an accident down the road.” The officer asked whether Ostrowski was involved in an accident. He replied that he “tried to assist some guy.” She asked the accused if he had been drinking. He replied with a laugh or chuckle, “I had a couple earlier.” [ 43 ] Constable Minhas obtained the accused’s wallet from his pocket and found a piece of picture identification.

When he and Constable Zagorsky checked the accused‘s name on their computer system, it revealed that there were several warrants outstanding for his arrest. Constable Zagorsky arrested Ostrowski on the warrants. Upon being arrested, Ostrowski said, “Thanks, officer”. She said, “What for?” He replied that he had “meant to take care of these” [the warrants]. She told the accused that he had plenty of time before then to do so. [ 44 ] Constable Zagorsky did not notice anything about Ostrowski’s appearance or demeanour which led her to believe that he was intoxicated.

Constable Minhas however thought that Ostrowski was intoxicated. He noticed that Ostrowski had a strong odor of liquor emanating from him; he was unsteady on his feet, swaying from side to side; he spoke slowly and had slurred speech. [ 45 ] Constable Pollock who attended the scene as “cover” for Constable Zagorsky and Minhas also formed the opinion that the accused was intoxicated. Pollock was standing about 5 feet away from the accused as he observed the interaction with the other two officers.

He noted that the accused was swaying from side to side; he had bloodshot eyes, poor balance and the odor of liquor about him. He noted that his speech was slurred. [ 46 ] It was obvious that the accused’s wrist or arm was badly injured and that he needed medical attention. One of the attending officers called for an ambulance to attend and the accused was eventually taken by an ambulance to Surrey Memorial Hospital for treatment. An officer took a few photographs of Ostrowski before he was taken to the hospital.

The photos show that Ostrowski had tattoos on his right upper back and arm. [ 47 ] Darcy Hancock was the first ambulance attendant to deal with the accused. Ms. Hancock said that she believed that Ostrowski’s right wrist was fractured. She said that Ostrowski also complained of pain on his right side – in the ribs and on his right thigh. She assessed him as being fully conscious. When she asked how he got injured, she said that Ostrowski first replied that he injured himself in a fall; then said that the police had beaten him up. She said that he denied several times even being in a car crash.

She also asked him whether he had consumed alcohol and he told her that he had had three beer and some pot. She made no note of Ostrowski being intoxicated. [ 48 ] Ms. Hancock said that one conversation with Ostrowski stood out in her memory. The accused asked her how his “Bud” was. She assumed that he was talking about the person who had been injured in the motor vehicle collision at 88 th Avenue and 132 nd Street. She told Ostrowski that she did not know, but that she believed that an air ambulance had been called, which indicated that the person had suffered a very severe injury.

She said that Ostrowski was distraught and that she tried to comfort him by saying that the ambulance service is very good and it would take the best care of his friend.

[ 49 ] The first nurse at the emergency department to see Ostrowski was Karen Dohaniuk. She recalled that the accused repeatedly said that he had done nothing wrong (this was in the presence of police officers who had followed him to the hospital). In particular, she recalled that he said he “was just walking and did not do anything”. She assessed Ostrowski as being fully conscious. Nonetheless, she also formed the opinion that he was intoxicated. She confirmed that she administered a dose of 5 mg of morphine at 10:30 p.m. to the accused.

She did not believe that this relatively low dose of morphine would have any particularly significant effect on most people. It was meant to relieve pain. [ 50 ] Another nurse who treated Ostrowski at the emergency ward, Dawn Gullan, said that she overheard the accused tell the emergency physician that he was a bystander at an accident when he got hit. She did not observe the accused to be intoxicated. [ 51 ] Constable Pollock was assigned to guard Ostrowski for part of the time that he was in the hospital.

Sometime before Pollock went off shift – about 2:00 a.m. – he had a brief conversation with Ostrowski. (By that time, the accused had been arrested first for “impaired driving” and then for “impaired driving causing death”.) After some confusion about whether he wanted to talk to a lawyer, he eventually spoke to the lawyer to whom he asked to speak. Ostrowski asked Constable Pollock the name of the person who died in the collision. Pollock said that he did not know. Ostrowski asked if his name was Sergio. Pollock said that he did not know.

Ostrowski then said if his name was Sergio, that Sergio was “his best friend and his best man.” [ 52 ] Investigating officers had intended to obtain a blood sample from Ostrowski pursuant to the Criminal Code . However, by the time the demand was made, it was well beyond the time within which the police could lawfully make such a demand. As well, the emergency room physician declined to take the sample because Ostrowski was not his patient. (The doctor who treated Ostrowski had gone off shift.) [ 53 ] But, the accused needed surgery to treat his broken wrist.

Accordingly, medical personnel took several blood samples from the accused for analysis before the operation. These samples were taken at 10:58 p.m. The police subsequently seized the samples for analysis at the RCMP crime lab. They also seized Ostrowski’s clothes and sent his pants for analysis of blood stains found on them. The officer who seized Ostrowski’s clothes searched the pants, finding several keys in the pocket including an ignition key Examination of Items Seized and Expert Evidence [ 54 ] The CRX was towed to an RCMP compound for inspection. No mechanical problems were detected.

It is a very small car, designed to have two occupants – driver and front seat passenger. There are no seats in the back. Eventually, police officers took the ignition key that they had seized from Ostrowski’s pocket and tested it on the CRX. The key turned the ignition. [ 55 ] DNA analysis established that the blood stains on Ostrowski’s pants came from Sergio Martinez. [ 56 ] The blood samples taken by the hospital personnel were plasma as opposed to whole blood. Forensic analysis of the plasma blood sample at the RCMP crime lab revealed that the plasma blood alcohol concentration was 152 mg percent.

Vema Mendes, a forensic toxicology expert, testified that this result translates to a whole blood alcohol concentration of 127 – 138 mg percent. She said that Ostrowski’s (whole blood) alcohol concentration at 8:32 p.m. would have been between 151 and 187 mg of alcohol per 100 ml. of blood. This calculation assumes that Ostrowski had not consumed alcohol within 30 minutes of the collision. [ 57 ] Ms.

Mendes explained that if he consumed alcohol within that 30 minute time frame, it was theoretically possible for Ostrowski’s blood alcohol level to be at only 80 mg percent at the time of the collision but that it could still reach the level of 127 – 138 mg percent at 10:58 p.m. She said that this could occur if Ostrowski consumed 3.82 to 5.7 ounces of 40% liquor or 2.6 to 3.8 bottles of beer or 12.8 to 19.1 ounces of wine. (This calculation assumes that Ostrowski weighed 73 kg.) [ 58 ] Ms.

Mendez said that some people are impaired in their ability to drive when their blood alcohol concentration is as low as 50 mg percent. It depends on the individual’s tolerance to alcohol. Nonetheless, she said that all persons are impaired in their ability to drive when their blood alcohol level is at 100 mg percent or higher. [ 59 ] She said that at blood alcohol levels of 150 mg percent or higher, a person would likely display some overt symptoms of intoxication.

These include decreased inhibition, increased self-confidence, deterioration of visual skills, a marked decrease in balance and coordination when compared to normal and slurred speech. In her report she stated: “Alcohol affects both the motor skills and the ability to use sensory information when operating a motor vehicle”. In particular, she said that consumption of alcohol affects vision; judgment; fine motor control and coordination; and reaction time. [ 60 ] Police experts and an engineer thoroughly examined the accident scene and the vehicles involved in the collision.

This investigation determined that the Nissan was traveling at 58 to 61 km/h at the time of impact and that the Honda CRX was traveling between 35 to 60 km/h. (The relatively high range of estimated speed was a result of the CRX being about half the weight of the Nissan.) At the area of impact, the Honda had travelled 23.3 m south of the stop line for southbound traffic on 132 nd and the Nissan was 9.5 m east of the stop line for eastbound traffic on 88 th Avenue. Testimony of the Accused [ 61 ] Mr.

Ostrowski said that on September 6, 2011, he was living with Laura Williams at a basement suite at 13383 96 th Avenue in Surrey. He and Sergio Martinez were close friends, having known each other for about seven years. They spent a lot of time together. Mr. Martinez had some training as a mechanic and the two of them often spent time together working on motor vehicles. [ 62 ] Mr. Ostrowski owned a Ford Capri which he kept in his garage and which he and Mr. Martinez sometimes worked on. He said that

Mr. Martinez asked him to allow Mr. Turko to leave a 1987 Honda CRX on Ostrowski’s’s property. Martinez and Turko had an arrangement where Martinez would do some repairs on it. Ostrowski said that from time to time he assisted Martinez in working on the CRX. He believed that the CRX had been on his property for about a year. Ostrowski said that both he and Martinez had keys to the CRX. [ 63 ] Ostrowski said that he and Sergio arranged to meet each other in the morning of September 6, 2011, near Ostrowski’s house at about 10:00 a.m. Martinez took the bus to get there.

They did a number of things, including going to Tim Hortons, Canadian Tire and other places. Mr. Martinez got a haircut. He and Martinez went back to Ostrowski’s residence at about 1:00 p.m. En route, Martinez bought a six pack of beer. [ 64 ] The two of them began doing some work on Ostrowski’s vehicle. They did so for a few hours. Later on, perhaps between 5:00 p.m. and 6:00 p.m., they had dinner prepared by Ms. Williams. Mr. Ostrowski did not remember having any drink containing alcohol during dinner, but did not dispute Ms. Williams testimony that he did.

After they had finished dinner, the two men went outside to do some more work on the car. [ 65 ] Ostrowski said that after they had been working on the vehicle for a while, a third person came to the property. He said that this man was a friend of Sergio’s. He did not recall his name and had not seen him before. The man spoke in Spanish to Martinez. Ostrowski said that Martinez told him that this man was going to drive the CRX to Martinez’s residence. He said that his friend was able to do this because he had a driver’s license (Martinez did not have a licence).

Ostrowski said that he was relieved to hear that the CRX would be taken off his driveway, because his landlord was getting annoyed at this vehicle being parked in the driveway for so long. [ 66 ] Ostrowski said that he began to clean up the area underneath the Capri – he had to clean up some shards of metal. Once he had finished, he said that he went to the garage and retrieved a half full bottle of rum. He shared that liquor with Martinez and his friend. They just passed the bottle around and drank from it. Once they had finished, he said that Martinez got into the CRX and drove it to the front of the driveway.

He said that the three of them had decided to go to Martinez’s residence and continue drinking there. The plan was that they would buy some liquor on the way. [ 67 ] Ostrowski said that he and Martinez had a “mock” fight over who would get to sit in the passenger seat of the CRX. Ostrowski said that he lost, so he had to sit in the middle between the driver and the passenger. Ostrowski said that he sat in the middle of the car with his legs straddling the gear shift box or the console.

That is, his legs were in the front of the vehicle, the rest of his body was seated just behind the front seats, in the rear. [ 68 ] Ostrowski said that the third man drove the CRX to the parking lot of a store on 132 nd but did not stop to buy any liquor. Instead, the driver turned the vehicle back onto 132 nd heading southbound. Ostrowski recalled the CRX cutting off a southbound vehicle. [ 69 ] Ostrowski agreed that the CRX was driven down 132 nd in a very erratic manner.

He recalled that as the vehicle approached the intersection with 88 th Avenue, the vehicle came to a stop, and then the driver moved the car into the left turn lane, accelerated and drove into the intersection on a red light. [ 70 ] The accused remembered that there was a crash; the car spun around and eventually came to a stop. He said that the driver immediately got out of the car and headed southbound on 132 nd . Ostrowski said that he got out about five or ten seconds later and also headed south. He said that he fled the scene because he did not want to be arrested on warrants that he knew were outstanding.

He believed that the police would be coming to the scene. [ 71 ] Ostrowski said that he was not wearing a shirt when he got out of the car. (He had taken his shirt off in the car because it was too hot.) He said that he jogged or ran at first and eventually walked. He caught up to the driver of the vehicle and when he did he asked the driver to give him a shirt. The driver already had one shirt on over another. He said that the driver gave him a white T-shirt, which Ostrowski put on.

He said that he just wanted to get away and hide somewhere. [ 72 ] The accused recalled going on to 82A Avenue and trying to climb a fence on that street. He was unable to do so and only then realized that his wrist or lower arm had been injured. He started to walk away, but was confronted by the two police officers who had just arrived on that street. Ostrowski said that he remembered very little, if anything, about his conversations with anyone after he first encountered the police officers. [ 73 ] Nonetheless, Ostrowski did try to provide some explanation for his conduct after he left the accident scene.

He said that he believed that it was an offence, even as a passenger, to leave an accident scene. That is why he did not try to return and why he did not try to apprehend the driver. He also said he was afraid of being arrested for being intoxicated in a public place. [ 74 ] Mr. Ostrowski points to his consumption of alcohol, and later to his being administered a small amount of morphine, and eventually being operated upon at the hospital under general anaesthetic, as explaining why he does not remember anything he said after his arrest.

He also suggested that he was very hostile to the police at that time of his life. He had no interest in cooperating with a police investigation, even if it meant that the driver of the CRX would escape justice. [ 75 ] With the Crown’s consent, the accused filed a very brief video taken from the surveillance camera of a business right at the intersection of 132 nd Street and 82A Avenue. It depicts a man walking on 132 nd wearing a white T-shirt. Mr. Ostrowski identified that person as himself. The video also shows a second man, wearing a white T-shirt, who crosses 132 nd , as the other man walks southbound.

Ostrowski said that this second man was the driver of the CRX. The video was taken at about 8:42 p.m., close to the time when Ostrowski probably arrived at 82A Avenue. Assessment of the Eyewitness Evidence [ 76 ] Whenever there is a sudden, unexpected and violent collision, it is inevitable that witnesses to the event will have differing,

sometimes contradictory, recollections of what occurred. This case is no exception to that general proposition. The most obvious conflict among the witnesses to the accident is between Mr. Fialleau and the other four eyewitnesses concerning how many people were in the CRX and whether one or two persons got out of it. [ 77 ] There is no dispute that the four witnesses closest to the collision saw Mr. Ostrowski get out of the driver’s side of the CRX and flee southbound on 132 nd . They were consistent in describing Ostrowski as not wearing a shirt.

Only one of these witnesses positively identified the accused in a photographic line up. Their descriptions of his physical appearance differ from one to the other, illustrating that their observations were not always consistent or accurate. But, they were consistent and certain that only one person left the CRX. [ 78 ] Of these four witnesses, Mr. Arora and Mr. Herr had the best opportunity to observe the occupants of the CRX. Mr. Arora’s vehicle was much bigger and higher off the ground than the CRX.

When it came to rest after the collision, the Nissan faced the passenger side of the CRX and was only a foot or two away from it. Mr. Arora was in a good position to observe anyone getting out of the CRX. If he tried to look through the passenger side windows, his view of the interior would be blocked by Mr. Martinez. Nonetheless, in his position, so close to the Honda and higher off the ground than the Honda, he had a good view of anyone who got out of the driver’s door of the Honda. Mr. Arora was not injured in the accident.

Although he was shocked and perhaps shaken up by the collision, his ability to observe what happened was not adversely affected to any significant extent. [ 79 ] Mr. Herr also had a good opportunity to observe the collision and its aftermath. His pickup truck was also higher off the ground and provided a good vantage point. His vehicle was stationary having stopped at the red light. After the collision, he went immediately to the CRX and helped the person in the driver’s seat to open the door. That person was Mr. Ostrowski. [ 80 ] Mr. Roy and Mr.

McRae were not present at the intersection when the collision occurred. However, they were at the scene very shortly afterwards. Most significant is that they made the same observations that Mr. Arora and Mr. Herr made – one man, not wearing a shirt – got out of the driver’s side door and left, heading south on 132 nd . No other person got out after that. [ 81 ] Mr. Fialleau was not as close to the collision scene as these other witnesses. By the time that the CRX entered the intersection, one or two vehicles had pulled in between Fialleau and the Honda.

Although he had either stopped or was driving very slowly at the time of the collision, Mr. Fialleau was somewhat distracted by the fact that he was speaking to the police on his cell phone. As well, he did not describe either of the men he saw leaving the Honda as not wearing a shirt. It is likely that more than one person approached the CRX on foot after the accident and later walked away from the CRX. Mr. Fialleau may have mistaken one of those persons as getting out of the vehicle. [ 82 ] Mr. Fialleau said that he believed there were three persons in the CRX.

He drove very close behind the vehicle for a few blocks. It was dark but he presumably had his headlights on. He therefore had a decent opportunity to see into the interior of the CRX. For part of that time, however. Mr. Fialleau was on the phone to the police, reporting the driver of the CRX for his bad driving. [ 83 ] Mr. Fialleau was a careful and honest witness, but I cannot give any weight to his evidence that a second person left the CRX. The cumulative effect of the observations of the other four witnesses is such that it excludes the possibility that there was a third person in the vehicle. Mr.

Herr and Mr. Arora were right at the scene of the accident. They had a better opportunity to observe than Mr. Fialleau. Their observations were corroborated by the testimony of Mr. McRae and Mr. Roy to the effect that one man, not wearing a shirt (who was undoubtedly the accused), got out of the vehicle and left the scene, going South on 132 nd . No other persons got out of that vehicle [ 84 ] Cpt. Robinson’s evidence is of little significance. It is likely that he saw Ostrowski walking down 132 nd Street because he saw a person put on a T-shirt.

There is no reason to believe that Ostrowski was walking with someone else at this time of the evening on 132 nd . For example, Constable Zagorsky spoke to a group of pedestrians on 132 nd as she made her initial patrols looking for the person or persons who left the accident scene. [ 85 ] Ms. Williams was not an eyewitness to the accident. She did however say that there was a third person with the accused and Martinez before she noticed that the CRX was gone. I cannot give any weight to this testimony. It was clear that Ms. Williams still had some affection for Mr. Ostrowski, even though they are now separated.

Her description of this mysterious third man was vague in the extreme. She only saw him from the back at a distance. She never actually saw him get into the vehicle. Is Ostrowski’s Evidence Credible ? [ 86 ] Many aspects the accused’s testimony are improbable and unbelievable. His claim that he has no memory of what he said to anyone after he was arrested is inconsistent with the rest of the evidence. Both the ambulance attendant and nurse in the emergency department assessed Ostrowski as being fully conscious and aware.

He demonstrated that he knew that he had been arrested for impaired driving causing death and that he understood that he had the right to retain and instruct counsel. He actually spoke to a lawyer whom he had asked for by name. [ 87 ] The evidence also establishes that Ostrowski knew that his friend Sergio had been injured badly in the accident. He asked the ambulance attendant how his “Bud” was and was visibly disturbed about his friend’s possible condition. He also understood that it was Sergio who had died in the accident, which he revealed in his conversation with Constable Pollock.

It is not believable that while Ostrowski was aware of the circumstances of the collision; aware that his friend had been very badly injured; aware that he was suspected of being the driver who caused the accident; aware that he had the right to consult a lawyer and consulted a lawyer, was, at the same time, in such a disorganized mental state that afterwards he could not remember what he did or what he said. [ 88 ] That he was fully aware of the circumstances is further illustrated by the false statements that Ostrowski made, denying that he was involved in any car accident.

If he was not the driver of the CRX, why did he so adamantly deny that he was even involved in the collision? While his attempts at deception were clumsy, Ostrowski was clearly trying to divert suspicion from himself by fabricating false statements about what had happened to him. As well, by purporting to have no memory of his conversations, Ostrowski avoided the difficulty of having to explain to the court why he told these lies.

[ 89 ] He speculated that because he believed at the time it was an offence for a passenger to leave the scene of an accident, that it must have been the reason that he lied. In any event, his asserted belief that a passenger committed a crime if he or she left the scene of an accident is not believable. [ 90 ] Mr. Ostrowski’s account of how he ended up in the CRX with Sergio and the third man driving down 132 nd Street is also fraught with inconsistencies. First, why would Sergio Martinez decide to have the CRX moved to his residence when it had been at Ostrowski’s place for many months? According to Mr.

Ostrowski and Mr. Turko, it was Martinez who had requested that Ostrowski permit Martinez to have the vehicle stored at Ostrowski’s residence. [ 91 ] Why didn’t Martinez tell Ostrowski that he intended to have the CRX moved when he met Ostrowski that morning? On Ostrowski’s account, the third man suddenly appeared at Ostrowski’s residence ready to move the vehicle, and this was the first that Ostrowski had heard of this plan. [ 92 ] Why would Ostrowski not know who the third man was? He and Martinez had been friends for many years. From Ostrowski’s account, Martinez and the third man were apparently good friends.

It seems quite unlikely that Ostrowski would not at least have heard about this friend from Martinez before. [ 93 ] Why would Ostrowski possess an ignition key to the CRX? According to Ostrowski and Ms. Williams, he had only driven the vehicle perhaps one or two times. The accused, on his account, had no intention of driving the vehicle on September 6. Ostrowski said that it was Martinez who drove the CRX to the front of the driveway. On this account, Martinez must have given an ignition key to the third man. There is no reason for Ostrowski to have an ignition key in his possession, on his version of events.

It is much more likely that he possessed the ignition key because he was the person who drove the vehicle. [ 94 ] For the foregoing reasons, I find that Mr. Ostrowski’s testimony was not credible. Was Ostrowski the Driver of the Honda CRX ? [ 95 ] The prosecution’s case on this issue is based on circumstantial evidence. The issue is whether, having considered all of the evidence, I am satisfied that the Crown has proven that Ostrowski was the driver, to the standard of beyond a reasonable doubt.

The Crown’s argument is based on the circumstances surrounding the collision and on Ostrowski’s conduct afterwards. [ 96 ] The circumstances include the fact that Ostrowski had possession of the CRX for many months before September 6, 2011. Although it belonged to someone else, it was on his property and he controlled it. There is no question that he was in the vehicle when the collision occurred. Blood stains on the right side of Ostrowski’s pants were determined to be blood that came from Martinez.

That is, Ostrowski was to the left of Martinez, when the collision occurred. (In a motor vehicle with 2 seats, the person to the left of the passenger is the driver.) An ignition key to the CRX was found in Ostrowski’s pants pocket. [ 97 ] Ostrowski fled from the accident scene almost immediately after the collision had occurred. When questioned by police, he denied that he had been involved in a motor vehicle accident at all. He repeated similar denials to the ambulance attendant and to hospital personnel.

Ostrowski’s flight from the scene tends to show “consciousness of guilt” in that he knew that he was intoxicated and that he had caused a serious accident. His lies to the police and others to the effect that he was not involved in a motor vehicle accident, also tend to show “consciousness of guilt”. The purpose of these lies was to avoid being suspected of being the driver of the CRX and who had been responsible for this collision. [ 98 ] Ostrowski’s explanations for having the keys in his pocket and for running from the scene are not worthy of belief.

He was unable to explain the lies told to the police and others because he purported to have no memory of what occurred after he was arrested. His assertion that he had no memory is not credible and his speculation as to why he might have told these lies is also not credible. [ 99 ] The observations of the four witnesses closest to the scene establish that there were only two persons in the CRX at the time of the collision. There is no doubt that the person whom they saw leave the vehicle and run away was Ostrowski. Mr. Fialleau’s evidence that a second person left the vehicle is, in my view, an honest mistake.

Ms. Williams suggestion that there was a third person with Martinez and Ostrowski before the car was driven away is not credible. [ 100 ] The video clip from the surveillance camera on 132 nd does not assist the defence case. Mr. Ostrowski may be depicted there but there is no reason to believe that the other man depicted was the “third man”. [ 101 ] Considering all of the evidence described above, I conclude that the only rational inference to be drawn in the circumstances is that Ostrowski was the driver of the CRX. That is, the Crown has proven this fact to the standard of beyond a reasonable doubt.

Did Ostrowski’s Blood Alcohol Level Exceed 80 mg Percent at the Time of Driving ? [ 102 ] It is quite possible that Ostrowski consumed some liquor within 30 minutes of the collision. I do not believe his assertion that he consumed a large amount of rum minutes before he left his premises. That evidence seems contrived to provide a technical defence to the charges he is facing.

Nonetheless, I must examine all of the evidence to determine whether the Crown has proven that his blood alcohol level was over 80 mg percent at the time of the collision. [ 103 ] Ostrowski’s argument is that although he was intoxicated when he was arrested, that was only because enough time had passed for the recently consumed alcohol to be absorbed in his blood. That argument is refuted by the manner in which he drove the CRX. That is, the expert toxicologist said that once a person’s blood-alcohol level approaches 150 mg percent, certain symptoms of intoxication become more apparent.

Ostrowski’s driving conduct is consistent with him being in such a condition. [ 104 ] Ostrowski drove the CRX on 132 nd Street in a very erratic manner, weaving conspicuously from side to side. That is, he was unable to control the steering of the vehicle because his fine motor coordination had been adversely affected by the consumption of

alcohol. By driving into the left turn lane and then directly through a busy intersection on a red light, he showed an appalling lack of judgment and a severely impaired ability to perceive the prevailing circumstances.

That is, vehicles had stopped for a red light, all the other motorists could see that the light was red. [ 105 ] This driving conduct establishes that Ostrowski’s judgment, perception and physical ability to control the motor vehicle were significantly affected by the consumption of alcohol and consistent with the more severe symptoms of intoxication that occur in someone whose blood-alcohol level is in the range of 150 mg percent. [ 106 ] That is, although Ostrowski may have had something to drink just prior to the collision, the evidence is nonetheless consistent with his blood alcohol level being over the legal limit at the time he entered the intersection.

Was Ostrowski’s Ability to Drive Impaired by Alcohol ? [ 107 ] The nature of the driving, the observations of various witnesses that Ostrowski was intoxicated, and the results of the analysis of his blood, all establish beyond a reasonable doubt that Ostrowski’s ability to drive was impaired by alcohol at the time of the collision.

Causation [ 108 ] It is clear on the evidence that the fact that Ostrowski’s ability to drive was impaired by alcohol was a contributing factor, beyond de minimis , to the death of Sergio Martinez. [ 109 ] There is no question that Ostrowski operated the CRX in a manner that was dangerous to the public, and thereby caused the death of Sergio Martinez. Driving a motor vehicle while intoxicated, in an erratic manner on 132 nd Street, going around cars which were stopped at a red light, and deliberately driving into a busy intersection on a red light, can only be described as dangerous.

Intent to Escape Civil or Criminal Liability [ 110 ] I have rejected Ostrowski’s evidence that he fled the collision scene because he feared that he would be arrested on outstanding warrants. That was in the context of assessing his evidence that he was a passenger in the CRX and explaining why he left the scene. It may be that Ostrowski was concerned about being arrested on warrants. Nonetheless, the evidence is clear that he was the driver of the CRX; he was intoxicated; he drove dangerously causing a very serious collision resulting in major injuries to his passenger.

It would have been immediately obvious to him that Martinez had been severely injured. Regardless of whether he was concerned about being arrested, Ostrowski’s conduct in leaving the scene and trying to divert suspicion from himself as the driver are consistent only with him having the intent to escape civil or criminal liability. Conclusion [ 111 ] For these reasons, I find Ostrowski guilty on all four counts of the Information. The rule in R. v. Kienapple , [1995] 1 S.C.R. 729 prevents him from being convicted on both the impaired and “over .08” charges.

I therefore direct a conditional stay of proceedings on count 2. The Honourable Judge P. D. Gulbransen Provincial Court of British Columbia