R. v. Sutherland, 2014 ONCJ 599

Citation: R. v. Sutherland , 2014 ONCJ 599 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JEAN CATHERINE SUTHERLAND R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE R.E.W. CARR, on June 26, 2014, at TIMMINS, Ontario

APPEARANCES : G. Verbeek Counsel for the Crown T. Tichinoff Counsel for Jean Sutherland ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S W I T N E S S E S Examination Cross- Re- WITNESSES in-Chief Examination Examination E X H I B I T S EXHIBIT NUMBER ENTERED ON PAGE Transcript Ordered: June 26, 2014 Transcript Completed: August 28, 2014 Ordering Party Notified: September 8, 2014 CARR, J. (Orally):

Jean Catherine Sutherland stands charged with the offences of having impaired care and control of a motor vehicle, contrary to section 253(1) (

a) of the Criminal Code of Canada , and with failing without reasonable excuse to provide a roadside breath sample following a demand to do so by a peace officer, contrary to section 254(5) of the Criminal Code of Canada . The offences allegedly took place not far from the Quebec border on Highway 101 in Halloway Township in the District of Cochrane on June 30 th of 2013. It is not disputed that the defendant was in care and control of her motor vehicle there and then. The Crown withdrew the charge of impaired care and control. EVIDENCE OF P.C.

BORDEN OPP Constable Todd Borden was on duty at 3:15 a.m. on June 30 th , 2013 when he received a radio call from the OPP communications centre telling him to be on the alert for a vehicle coming from the Province of Quebec into Ontario with its driver possibly under the influence of alcohol. Accordingly, he drove towards Quebec on Highway 101 on the lookout. He saw a moose on the highway as he travelled. At about 10 kilometres from the Quebec border Officer Borden saw, at 4 a.m., the headlights of an oncoming motor vehicle some 400 or so metres away.

He activated his radar unit and noticed that the oncoming vehicle was travelling at 10 kilometres per hour before its speed dropped to zero, and when the cruiser reached the vehicle it was stopped on the road in its, that is to say, the westbound lane. P.C. Borden saw immediately that the stopped vehicle was damaged in the front and that the windshield was smashed. The vehicle matched the description given over the radio communications: a white compact car.

The cruiser stopped in its lane beside the other vehicle, two feet separating the vehicles, and Constable Borden observed the defendant exiting the white compact car from the driver’s seat and door. He could see a small cut on her forehead and he could smell the odour of alcohol coming from her. He asked if she was okay to which she replied, “I don’t know. I’m in shock, I think.” At this point he was able to smell the odour of alcohol on her breath and he, as a result, concluded that she had alcohol in her body. He observed the defendant to be unsteady on her feet.

He asked her if she had consumed alcohol, to which she replied, “A little bit,” and he observed blood trickling down from the cut on her forehead. The defendant was instructed to come to the cruiser so that he might see her better in the light, and for her safety. She told him that she had to “go to the bathroom”. That’s a quotation from him. As to whether or not it’s a direct quotation from her to him, I was not sure. So she walked to the passenger side of her car. She squatted out of sight of the officer for one to two minutes before returning to him.

While this was happening, an intoxicated male who had been a passenger in the defendant’s motor vehicle, appeared on the roadway and told the officer to “Look out for a moose.” It appears from the photos tendered by the Crown and by the defence that the motor vehicle driven by the defendant had collided with a moose that night. Although there is no evidence as to when that occurred, Mr. Tichinoff, for the defendant, argued that the collision took place immediately before the officer arrived. P.C. Borden conceded this as a possibility.

At 4:04 a.m., Officer Borden read to the defendant a demand that she provide forthwith a sample of breath suitable for roadside

approved screening device testing pursuant to section 254(2) of the Criminal Code . Constable Borden asked her if she understood the demand and she said she understood, at which time she was asked to attend the back seat of the cruiser. She told the officer that she would not provide a sample of her breath into the approved screening device. The defendant was seated in the rear seat which was separated from the driver by a Plexiglas divider, but that window was open so that Borden could hear and see the defendant clearly.

The inside lights were on so that he could observe the defendant, and in particular, he looked at her pupils for any abnormality consistent with head injury. He saw nothing unusual. At 4:06 a.m., Officer Borden re-read the demand as per section 254(2) of the Code . The defendant refused again at which time, and he said, “I explained the ramifications” of a refusal to the effect that the legal consequences would be the same as for an impaired driving conviction, at which time Ms. Sutherland replied, “I don’t care.

I’m not blowing into that machine.” The smell of alcohol was very strong inside the cruiser said the officer. Once again, P.C. Borden read the demand the third time and the defendant replied, “I’m not blowing. I’m refusing.” Although her words were slurred they were understandable he said, and at 4:10, the defendant was placed under arrest and charged with the offences at bar. Her Charter rights to counsel,

section 10(b), and the standard police caution were read, and when asked if she understood, she replied in the affirmative. At this point, P.C. Borden called for an ambulance in order that she receive medical attention given the accident. He observed a bump on the forehead, a small cut which looked to be superficial, and some bleeding from the area of the cut. There was no discharge from the eyes or nose, and Ms. Sutherland was crying. When P.C. Borden asked the defendant for her identification he was instructed by her to retrieve her driver’s licence from the side pocket of her phone, which she did.

The cruiser, with the defendant in the rear seat, travelled towards the Town of Matheson leaving the scene at 4:48 a.m. It met up with the ambulance coming in the opposite direction at 5:05 a.m. The defendant was transferred into the ambulance and the cruiser followed it to Matheson Bingham Memorial Hospital arriving at 5:38 in the morning. The defendant was assessed by a physician for about 10 minutes. Officer Borden remained in the room at the other end. The physician asked the nurse to place a Band-Aid on the defendant’s forehead and he left. That is to say, the doctor left. P.C.

Borden served the appearance notice, spoke to the defendant about the fingerprinting requirements at the Ontario Provincial Police South Porcupine detachment, about the 90-day suspension, and about the 7-day motor vehicle impoundment. He offered to drive the defendant home. She asked to be driven to a residence in Iroquois Falls, which happened. THE DEFENDANT’S EVIDENCE The defendant did not challenge or deny the evidence of P.C. Borden although she had no memory of some of his recollections of her interactions with him as set out below.

The defendant admitted that she was driving a small white car at the material time, and she had with her a passenger, Dave Black, both of the Wahgoshig Reserve. She had driven Mr. Black to La Sarre, Quebec at his request. Mr. Black had consumed alcohol there as had the defendant while she waited for him. She says that she had two drinks between one and two (I assume a.m. from the tenor and context of her testimony. She did not specify) and that she had consumed no other alcohol in the 12 hours preceding these drinks.

She left Quebec at 3 a.m. (I believe she was referring to La Sarre), travelling at 105 to 110 kilometres per hour, but she does not remember the collision with the moose or the speed of her motor vehicle at the time of the collision. From there on her memory is “like a blur”, “spotty” and in “fragments”, she said. She remembers being in the car after the accident, looking at her passenger who was screaming. The windshield was smashed and she was wondering “what was going on,” she said.

She remembered the following: 1) red/blue cruise lights flashing on the cruiser; 2) female officer tending to her cut with a tissue; 3) Todd Borden at the scene and talking with vague memories of what he was saying; 4) P.C. Borden reading “my rights”; 5) feeling “scared” at the scene; 6) leaving the scene for the Town of Matheson; 7) seeing three moose en route to Matheson; 8) being transferred to the ambulance from the cruiser and seeing two paramedics there; 9) being at the hospital being examined by the physician with P.C. Borden sitting at the end of the room.

She had and has no memory of: 1) the collision with the moose; 2) the breath demands; 3) the warning or “ramifications” (P.C. Borden’s word) given by Borden to her re the legal consequences for failing to provide a sample pursuant to the demand; 4) her responses to the demands; and 5) crying in the cruiser. She did not deny the demands, the warnings or ramifications, and refusals. She had no memory of same, and she stated that she would have no reason to refuse such a demand.

In addition to feeling scared at the scene, she said that she “did not know what was going on.” Her head was pounding and she felt numbness. It felt like “it would blow off”. Her neck was stiff, her ears were ringing. She was “really, really sore,” she said. The photo of the defendant taken a few days after June 30 th shows a number of cuts and abrasions to the forehead, one on the bridge of the nose, and between the nose and lip on the right side. As mentioned, she was discharged from Bingham Memorial Hospital in Matheson after a 10-minute consultation with the attending physician.

He had a nurse place a bandage on the defendant’s forehead.

On July 3rd, 2013, some four days after the accident and arrest, the defendant attended at Timmins & District Hospitalemergency ward for assistance for recent head injury. The hospital records were entered as an exhibit. The concussion protocol wasadministered following which the physician’s impressions were “headache”. As mentioned, the defendant did not challenge the existence or efficacy of the breath demands, P.C. Borden’s warning withrespect to the “ramifications” of a failure to provide a breath sample or that she refused to comply in the words recorded by and testifiedto by P.C. Borden.

She simply can’t recall. In any event, I have no doubt but that the demands were given as was the warning or“ramifications” as Borden put it, for refusing, as stated by the officer. Likewise, I accept that the defendant did, in fact, refuse to providea breath sample on three separate occasions after three separate demands and one warning or “ramifications” was given after the seconddemand, and all as in the words recorded by the attending officer. Mr.

Tichinoff for the defence argues that the head injury sustained by the defendant from the motor vehicle accident with themoose was such that she was not able to properly understand the demands, the warning and/or be consciously able to formulate areasoned response or responses to the demands and/or that she was in a state of non-insane automatism as was the defendant in theHickey case upon which he relied.

He points to the following: the clear evidence of a significant collision with a moose resulting in a smashed windshield anddamage to the front end of the defendant’s car; the strange behaviour, that is the sudden need to urinate on the roadway, albeit out of theview of P.C. Borden; the injuries to the defendant - blood and bump on her forehead; Borden’s decision to call an ambulance and havethe defendant examined by a doctor; and the fact that the officer actually made three demands of the defendant to produce a roadsidesample. Mr. Tichinoff presented two cases for the court’s review.

The first case is indexed as R. v. Hickey S.Q. 2000 BCPC 171, [2000] B.C.J., No. 2627, a decision of the British Columbia Provincial Court. Ms. Hickey was involved in a motor vehicleaccident. When police arrived, the defendant was staggering and the smell of alcohol was on her breath. She was diagnosed at hospital ashaving received a concussion, and a physician testified to the effect that the “symptoms exhibited by Ms.

Hickey were equally consistentwith concussion as they were with impairment by alcohol.” Also, the court found on the evidence that her blood alcohol reading at thetime was about 70 milligrams of alcohol in 100 millilitres of blood, based on an acceptance by the court of her evidence of what andwhen she had consumed alcohol prior to the collision as interpreted and analyzed by an expert. In conclusion, the court held the following, and I quote from page 12 at paragraph 45: “In this case, all of the evidence relating to Ms.

Hickey on that night and in the days and weeks subsequent, combined with themedical evidence and the evidence of the experts, satisfies me that Ms. Hickey’s actions immediately after the accident and at the policestation were all the result of her being affected by concussion.

There is certainly no suggestion that she was ever unconscious, but I amsatisfied on a balance of probabilities, that her consciousness was indeed impaired, such that she had no voluntary control over heractions, even though they were actions undertaken by her.” And, paragraph 48 of the judgment: “In conclusion, I am satisfied that on the night of October 16th, 1998, as a result of a blow that Ms. Hickey received to her headin a motor vehicle accident, she received a concussion. I am further satisfied that that concussion resulted in Ms.

Hickey being in a stateof non-insane automatism from a time immediately following the accident until some time after she refused to supply samples of herbreath pursuant to a demand made by Constable Hamner. The effect of these findings is that I am left with a reasonable doubt as towhether or not Ms. Hickey’s ability to drive a motor vehicle was impaired by alcohol at the time of the accident. I also find that Ms.Hickey had a reasonable excuse for failing to comply with the breath demand, by reason of being in a state of automatism as a result ofher concussion.” Mr.

Tichinoff also points to a decision of the late Justice Yvon Renaud, a learned justice of the Ontario Court of Justice. Thecase is referred to as R. v. Smith, 2009, ONCJ 290. In this case, the defendant was operating his motor vehicle when it crashed into a rockcut. The defendant suffered bruising, contusions and cuts. The breath demand was properly made, that is to say, it was in a timelyfashion, and reasonable and probable grounds were present, and the defendant provided a sample, but 17 minutes later when asked toprovide a second sample he would not comply.

Justice Renaud said this, page 13: “The officer believed the defendant was then alert but when asked to provide a second sample, the defendant immediatelyclosed his eyes. The defendant repeated the procedure again four times, and each time the defendant would open his eyes and make a

comment. The officer related four such comments made by the defendant, “Holy, what are you doing?”, “They are hitting me”, “I already blew once” and “I already (f’ing) blew.” The defendant was loud when he made these comments which the officer felt was simply to get attention of people in the hospital area. The officer felt the defendant was refusing.

The Intoxilyzer timed-out and he informed the defendant that he would be charged with refusal whereupon the defendant nodded in the affirmative while keeping his eyes closed.” And Justice Renaud said this at page 17, paragraph 55: “On this count, although I have found that the officer had reasonable and probable grounds to make the section 254(3) demand, the evidence does not satisfy me beyond a reasonable doubt that the defendant consciously or intentionally refused to provide a breath sample.

The combination of the injuries and trauma resulting from the accident, and the hour of the night, make it reasonably possible and perhaps likely that the defendant was slipping into some form of deep sleep (though not necessarily loss of consciousness or coma) and he became difficult to arouse and to be kept attentive just before the second test.

I am not satisfied that the refusal at that point was intentional as opposed to being related to exhaustion or injury.” THE LAW Section 254(5): “Everyone commits an offence who without reasonable excuse, fails or refuses to comply with the demand made under this section.” The Crown has the burden of proving beyond a reasonable doubt the essential elements of the offence, that is the actus reus and the mens rea .

Section 794(2): “The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information.” The British Columbia Court of Appeal, in the recent case of R. v.

Goleskei, 2014 BCCA 80 , considered section 794(2) in holding that “the accused was required to establish factual foundation for reasonable excuse on a balance of probabilities”, and I take that from the headnote otherwise found in the body of the case. In my view, the case at bar is different from the facts in the cases cited and can be easily distinguished.

Although the defendant was involved in a motor vehicle accident and sustained injuries to the head and neck areas, she attended for treatment at two hospitals with two physicians on two separate occasions, and she was not diagnosed with having suffered a concussion, only a headache. Also, alcohol was not reduced or marginalized as a contributing factor to the unusual behaviour (the roadside urination and memory loss) as was in the case of R. v. Hickey where on the evidence the court found the blood/alcohol concentration to be 70 milligrams of alcohol in 100 millilitres of blood at the relevant time.

There was no suggestion in the evidence of P.C. Borden that Ms. Sutherland was possibly sleeping or dozing at the time of the demands or responses as was the case in R. v. Smith , or that she was having any difficulty concentrating, paying attention or understanding what was being required of her or that she was in any way unable to comply with the request by reason of exhaustion, injury or otherwise. In fact, at the time, he was keeping a close eye on her as she sat in the rear of the cruiser, actually looking into her eyes and pupils for signs of abnormality.

Lastly, there were no responses as in Smith that were strange or at odds with reality such as “Holy, what are you doing”, “They’re hitting me,” et cetera . The only evidence of the defendant was that she had no memory of the section 254(5) conversations. Note that she does remember her rights being read and many other things at the scene: in the cruiser, in the ambulance and at the hospital. She replied in the negative to the demands that she provide a sample of breath suitable for roadside analysis on three separate occasions. Her language was clear, concise and unequivocal.

Her words were responsive to the demands made of her which she stated she understood. In fact, after the warning or ramifications that were told to her by Borden, her immediate response was “I DON’T CARE” (emphasis mine), “I’m not blowing into that machine.”

I am persuaded that although the defendant did bang her head as a result of the collision and that she had a headache and other sequelae, that her refusal to tender a sample of her breath was intentional and was not, as in the case of Smith , “related to exhaustion or injury” or non-insane automatism as in Hickey . Of course, she has the burden of establishing the factual foundation for a reasonable excuse for failing to tender a sample on a balance of probabilities and this, in my respectful view, has not happened here. There will be a finding of guilty. **********