R. v. Dick, 2011 ONCJ 497

Citation: R. v. Dick , 2011 ONCJ 497 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. P. Fraser, ) for the Crown ) — AND — ) ) BERNARD DICK ) ) Mr. P. Dotsikas, ) for the defendant ) ) ) ) lipson J.: REASONS FOR JUDGMENT [ 1 ] Mr. Bernard Dick pleaded not guilty to charges of impaired operation and over 80 mgs. Overview of the evidence [ 2 ] The Crown called two witnesses, David Stuhl and Marco Sturn, who observed the accused’s driving prior to his arrest. The arresting officer and a toxicologist also testified on behalf of the prosecution. Mr.

Dick’s defence is that all of his drinking took place after his driving and before his arrest. Mr. Dick and his friend Shawn Clarke were defence witnesses. [ 3 ] David Stuhl is a safety compliance manager at a truck transport company. As he put it in his testimony, “safe driving is a high priority” in his line of work hiring truck drivers and ensuring their compliance with licensing and road safety regulations. He observed Mr. Dick driving an Acura on the northbound Don Valley Parkway around 1 a.m. on November 22, 2009. Mr.

Dick’s vehicle “almost sideswiped” the witness’s car on two occasions moving from the centre lane to the right lane where Mr. Stuhl was driving. Both vehicles travelled onto the eastbound 401 from the Don Valley Parkway. Mr. Stuhl saw Mr. Dick try to merge into a lane almost sideswiping another car. At this point, Mr. Stuhl followed Mr. Dick’s car and was calling 911 to report what he was seeing. Mr. Dick’s vehicle exited at Morningside and then got back onto the 401, now travelling westbound. As Mr. Dick’s car merged with other traffic, it almost sideswiped another car. Mr.

Stuhl also observed a tow truck travelling on the 401 westbound. The tow truck driver was Marco Sturn who was a witness in this trial. Both Mr. Sturn and Mr. Stuhl were in communication with one another as they followed Mr. Dick’s vehicle. [ 4 ] Mr. Stuhl did not describe the driving of Mr. Dick on westbound 401 as being erratic. Mr. Dick exited at Victoria Park, travelled northbound and turned right on Sheppard Avenue. The witness said that Mr. Dick was driving “a bit aggressively” and rather quickly leaving the highway. He was travelling around 80kms per hour on Victoria Park. From Sheppard Avenue, Mr.

Dick turned into a plaza, parked and walked into a Caribbean food restaurant. The time was 2 a.m. The police arrived and he saw officers escort Mr. Dick out of the restaurant some 45 minutes later. [ 5 ] In cross-examination, the witness said that on all four occasions of near sideswiping he observed, Mr. Dick corrected his driving. He said none of the cars involved took evasive action except that Mr. Stuhl sounded his horn. Mr. Dick’s car was not drifting between lanes. There was nothing unusual in Mr. Dick’s driving on Victoria Park north or Sheppard Avenue or in the plaza lot.

He didn’t observe any unsteadiness on the part of Mr. Dick when he walked into the restaurant. [ 6 ] Marco Sturn, the tow truck driver, observed Mr. Dick driving on westbound 401 near Markham Road and gave a radically different account of the accused’s driving. Mr. Sturn told the court that Mr. Dick’s vehicle was “weaving everywhere” on the highway. The car was weaving in every lane, “almost hitting a few cars that were in his way”. He stated that Mr. Dick’s car almost struck three cars. The car was slowing down and speeding up. When Mr.

Dick’s car exited the highway at Victoria Park, it almost hit the centre lane divider. [ 7 ] In cross-examination, the witness asserted that he knew from his experience as a tow truck driver how impaired drivers drive and “they are all the same”. Mr. Dick’s speed fluctuated between 80 and 100 km per hour on the highway and between 30 and 50 km per hour on Victoria Park. The vehicle turned onto Sheppard from the middle lane of Victoria Park. The witness did not mention any of this in his statement to the police.

As well, he never told the police that the Dick vehicle was weaving between lanes but that it was weaving within its lane. This witness saw nothing unusual in the accused’s walking as he entered the restaurant. [ 8 ] P.C. Fox was the arresting officer. He investigated information that an impaired driver of an Acura had gone into the plaza restaurant. He entered the restaurant just after 2:20 a.m. and recalled seeing a number of people drinking beer and playing dominos. P.C.

Fox inquired who had been driving the Acura and Mr. Dick came forward and provided identification. The officer observed that the accused had bloodshot and glassy eyes, the strong smell of alcohol on his breath, unsteadiness on his feet and slurred speech. Mr. Dick was verbally confrontational. The officer believed the accused to be intoxicated and arrested Mr. Dick for impaired operation at 2:30 a.m. After being taken to 41 Division, the accused provided two breath samples. The first was given at 4:08 a.m. and the reading was 156 mgs per 100 mls of blood.

The second sample was given at 4:30 a.m. and the result was 154 mgs. [ 9 ] Jean Paul Parmentier is a toxicologist employed by the Centre of Forensic Sciences. He prepared a report, exhibit 1, and gave expert testimony in this trial. In this case, the first sample was taken eight minutes outside the two hour limit from the time of driving. He estimated that the projected blood alcohol concentration (BAC) of Mr. Dick at the time of driving at 2 a.m. was between 150 and 190 mgs. in 100 millilitres of blood.

With a BAC in this range, an individual’s ability to operate a motor vehicle would be impaired by the consumption of alcohol. [ 10 ] Mr. Parmentier’s opinion was dependent on the following factors: 1. A rate of elimination of alcohol from the blood ranging from 10 to 20 milligrams of alcohol per hour. 2. Allowance for plateau of up to two hours. 3. No consumption of large quantities of alcoholic beverages shortly prior to the incident. 4. No consumption of alcohol beverages after the incident and before the breath tests. [ 11 ] The defence evidence challenged the fourth assumption. Mr.

Dick testified that he drank a substantial amount of alcohol after he drove and before he gave breath samples. Mr. Dick told the court that before driving, he got into an argument with his wife at their residence in Mississauga. He decided to go downtown via Highway 427 and the Gardiner Expressway to visit a friend He left his home around midnight to 12:30 a.m. En route, Mr. Dick changed his mind about visiting this particular person downtown and decided to visit some friends in Scarborough. During the drive, he was on his hand-held cell phone arguing with his wife about their marital problems.

He did not take issue with Mr. Stuhl’s account that he made two unsafe lane changes. He testified that he was on the phone and should have “done more checking” on his driving. Nor did he dispute Mr. Stuhl’s account of his driving on the 401. He exited at Morningside and returned to the 401, this time travelling west to meet up with his friend who was now playing dominos at the restaurant which Mr. Dick eventually drove to. He did not dispute exiting the 401 quickly as described by Mr. Stuhl. He planned to drink at the restaurant and stay at the home of a friend named Shawn.

Shawn was at the restaurant and had brought a bottle of 151 proof Bermuda rum containing 70% alcohol. Mr. Dick estimated that he poured two doubles and drank them before P.C. Fox came into the restaurant. He also said he was sipping on a Heineken beer as a “chaser”. Mr. Dick did not dispute the officer’s observations concerning the indicia of impairment. [ 12 ] Shawn Clarke, Mr. Dick’s friend, confirmed Mr. Dick’s evidence as to the type and quantity of alcohol consumed by the accused. Mr. Clarke testified that when he first saw the accused at the bar, Mr.

Dick appeared “vexed” but not under the influence of alcohol. Mr. Clarke had brought the bottle of rum to the restaurant. [ 13 ] In cross-examination, Mr. Parmentier, the toxicologist, testified that had the accused consumed the type and quantity of alcohol he said he did in an approximate 20 minute time frame starting at 2 am, he could have had a reading of 150 mgs at 4:08 a.m. Positions of the Parties [ 14 ] The Crown submitted that the court should reject the evidence of the accused and his witness as to the amount of alcohol consumed. Mr.

Fraser argued that it does not accord with common sense that he would have engaged in this kind of drinking during such a short time span. It was submitted that Mr. Dick was impaired by the consumption of alcohol based not only on the toxicological evidence but also the observations made by independent witnesses of Mr. Dick’s driving. The route that Mr. Dick took was convoluted, confused and consistent with driving while impaired. [ 15 ] Defence counsel submits that there is no evidence that Mr. Dick had any alcohol in his system at the time of driving. Mr. Dotsikas asked the court to reject the testimony of Mr.

Sturn as being exaggerated and embellished. Mr. Stuhl’s testimony was more balanced, detailed and reliable. It was submitted that while the accused apart from three to four unsafe lane change attempts over several kilometres of travel, Mr. Dick’s driving was not egregious. Mr. Dick’s testimony concerning his drinking was confirmed by Mr. Clarke. At the very least, the court should be left in reasonable doubt as to whether the case against the accused has been proven. Analysis [ 16 ] While Mr.

Stuhl saw three occasions of near sideswiping by the Dick vehicle on the DVP and 401 east, he did not observe erratic driving on the portion of the 401 west where Mr. Sturn was also following the accused. I was impressed by Mr. Stuhl who gave detailed, careful and measured testimony. He is a road safety compliance manager with a trucking company and was very precise about the location and driving manoeuvres of the accused. [ 17 ] Mr. Sturn’s evidence did not possess these features. He sometimes resorted to hyperbole and generalization in describing Mr. Dick’s driving.

The accused was driving like “every impaired driver drives” and “they are all the same”. He added important details that he never mentioned to the police when he was interviewed such as the accused’s alleged speed fluctuations and weaving between lanes. [ 18 ] I cannot reconcile these two witnesses’ differing observations but I do tend to accept the testimony of Mr. Stuhl as being

far more reliable and trustworthy than that of Mr. Sturn. [ 19 ] The accused’s driving conduct as described by Mr. Stuhl could reasonably have resulted from impairment by alcohol as submitted by the Crown. Yet the court cannot ignore the evidence of the accused, also plausible, that he was in a state of agitation as a result of arguing with his wife before leaving home and also while on his hand-held phone while on the road. He conceded that in his agitated state, he was not driving with proper care for other motorists. [ 20 ] Aside from Mr.

Dick’s driving, there is no other direct or circumstantial evidence that the accused was impaired at the time of driving. There was no evidence of admissions to the police that he had been drinking before or while he was driving. No bottles of alcohol were found in his vehicle. Neither Mr. Sturn nor Mr. Stuhl observed any unsteadiness on the part of the accused when he walked into the restaurant. [ 21 ] I appreciate that there is exists more than a remote possibility that the evidence of Mr. Dick and Mr. Clarke concerning any post driving drinking by the accused was contrived.

However, I also note that the testimony of both defence witnesses stood up reasonably well under skilful cross-examination by Crown counsel. As a matter of common sense, people do not ordinarily engage in bolus-drinking but the drinking alleged here by the accused and his witness consists of two large and stiff drinks of 70% Bermuda rum which, according to the toxicologist called by the Crown, could account for the readings provided by Mr. Dick just over two hours later. [ 22 ] Having considered the totality of the evidence, I am unable to reject the defence evidence as being untrue.

The court is left in some reasonable doubt on both charges and accordingly the charges are dismissed. Released: September 23, 2011 Justice T. Lipson