2019 NBPC 16, 2019 NBPC 16

2019NBPC16 File No.: 04903811 CANADA PROVINCE OF NEW BRUNSWICK BATHURST PROVINCIAL COURT HER MAJESTY THE QUEEN v. JOËL ANDRÉ GAUVIN Decision delivered by the Honourable Brigitte Sivret, Judge of the Provincial Court, at Bathurst, New Brunswick, on November 15, 2019. Dates of trial : July 30 and 31, 2019, and August 1, 2019 Counsel: René Dumaresq, for the Crown Luc Roy, for the defendant [TRANSLATION] 1 . The defendant, Joël André Gauvin, is charged with having had the care or control of a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1) (

b) of the Criminal Code of Canada . This charge was laid in Court following a motor vehicle accident that took place near Allardville on the morning of December 7, 2017. 2 . The Crown called the following witnesses at trial: Alain Duguay and Michael Plourde, both volunteer firefighters from Allardville; Raphaël Cyr, a paramedic; Justin Leblanc and Christopher Dobson, two medical laboratory technicians at Chaleur Regional Hospital; Jean-Marc Chiasson, the first person who stopped at the accident scene; Constable Bruno Savoie and Constable Jeannine Breton, both members of the Bathurst RCMP; Lynn Roy, a nurse in the emergency department at Chaleur Regional Hospital; Lisa Vienneau, a person

who was sleeping at her mother’s residence near the accident scene on the morning of December 7, 2017; and, finally, Christine Frenette, a forensic toxicology specialist whose testimony was heard as an expert witness. 3 . The defence presented no evidence and called no witnesses. 4 . The material facts of this case are undisputed. 5 . At 1:14 a.m. on December 7, 2017, 911 emergency services received a telephone call from Lisa Vienneau. Ms. Vienneau placed the call at the request of a young woman, identified as Stéphanie, who was with Jean-Marc Chiasson. Ms.

Vienneau explains that she lives in Petit-Rocher but that she sleeps over at her elderly mother’s house in Allardville several times per month when her mother needs her help. She says that she was sleeping and was awakened by Stéphanie, who knocked on the door and asked for help. Ms. Vienneau, who was alone with her elderly mother, was somewhat reluctant to answer. She was frightened and wondered if this was really a legitimate request for assistance. She decided to trust Stéphanie and agreed to respond to her request for assistance.

However, she asked Stéphanie to remain outside the house while she made the 911 call. She spoke with Stéphanie and the 911 dispatcher by going back and forth between where the telephone was located and the outside of the house, where Stéphanie was waiting. 6 . The 911 call lasted approximately five minutes. Ms. Vienneau then gave Stéphanie a blanket and Stéphanie returned to the accident scene to join Jean-Marc Chiasson. When Stéphanie left the residence, Ms. Vienneau went out to the side of the road.

She says that she saw the firefighters arrive at the scene but that she could not make out anything else at the scene because it was too dark. 7 . Jean-Marc Chiasson and Stéphanie were traveling in the same vehicle. In fact, they were headed for Bathurst on Route 134, which links Allardville to Bathurst. At about 1:00 a.m., Mr. Chiasson saw some debris on the road but dismissed it until he thought he saw something white further away, near the trees. He decided to stop when he had almost passed the site of the collision. He realized then that there had been an accident involving a motor vehicle. 8 .

He passed the accident scene before stopping his vehicle. He said that the location where the accident took place was dangerous. He turned on his emergency flashers and went to where there was some debris. He says that the vehicle involved was completely demolished. There was debris all over the place. He thought then that he would find someone dead. He and Stéphanie began shouting to see if anyone could hear them. At some point, he heard a sound, like the groan of someone who is in pain but cannot speak. He then asked Stéphanie to go call 911 while he stayed at the accident scene.

According to him, Stéphanie used the car to drive to the nearest house because this was a location with no nearby houses. He then climbed down into the ditch. He saw the accused moaning on the ground, lying face down with his stomach on the ground and a piece of metal stuck on one leg. He tried to help the accused by turning him onto his side. 9 . There are no street lights in this location, nor any nearby residences or houses. Mr. Chiasson had trouble seeing and lit the scene using a lighter. 10 . Mr.

Chiasson says that he looked for other people but there was no one other than the accused at the scene when he arrived. He says that the accused was in shock and could not speak; he got the impression that something was obstructing the accused’s breathing. 11 . Mr. Chiasson described the condition in which he found the accident scene and car. According to his testimony, the accident had happened some time before he arrived. He says that there was no smoke or steam on the scene, nor were there any marks on the road. A light snow was falling and the road was a bit icy. The white car was broken into several pieces.

In his opinion, nobody else was involved in this accident. 12 . The car at the scene, a white Honda Civic, was split into several sections. The engine, console, steering wheel and driver’s seat were in one

section on the left and the back of the car as well as the passenger seat were crushed against a tree 50 or 60 feet from the console. The accused was lying between the back and front of what remained of the car. 13 . At 1:18 a.m., the Bathurst detachment of the RCMP received a call from the dispatcher regarding an accident in the Allardville area, along Route 134. Three patrol cars rushed to the accident scene.

14 . The three police officers reached the scene at about 1:38 a.m. Constables Savoie and Breton approached the accused, who was being brought out of the ditch on a stretcher by the firefighters and paramedics. They both detected the smell of alcohol coming from the accused. They also noticed a 26-ounce bottle of Grand Marnier near the debris. Constable Breton then decided to follow the ambulance that would be taking the accused to the hospital as she had grounds to suspect that there was alcohol in the accused’s body. 15 .

The ambulance left the scene at 2:00 a.m. and got to Chaleur Regional Hospital at 2:28 a.m. After observing the condition the accused was in and speaking with the emergency room doctor and nurses, Constable Breton concluded that as a result of his injuries, the accused was unable to understand and consent to a demand to provide a breath sample. She concluded that it would therefore be necessary to try to obtain a warrant to seize the blood samples that the medical team would be taking. 16 .

At 2:40 a.m. on December 7, 2017, Lynn Roy, the emergency room nurse, took samples of Joël André Gauvin’s blood as ordered by the emergency physician. These blood samples were immediately sent to a hospital lab for analysis via the pneumatic system. 17 . Justin LeBlanc, a medical laboratory technician, received the blood samples at the lab at 2:42 a.m. on December 7, 2017, via the pneumatic system. He analyzed the samples and drew up a report. 18 .

At 6:30 p.m. on December 11, 2017, Christopher Dobson, a medical laboratory technician at Chaleur Regional Hospital, gave Constable Breton the three blood samples taken and analyzed by Justin LeBlanc on December 7, 2017. 19 . These blood samples were seized and held in Constable Breton’s custody until January 23, 2018, when the samples were sent to the RCMP forensic laboratory in Ottawa for analysis to determine their blood alcohol concentration. 20 .

Christine Frenette, an expert in forensic analysis and science as well as toxicology, received the samples on March 1, 2018, and analyzed them as requested by Constable Breton. According to Ms. Frenette, the blood taken from the accused at 2:40 a.m. on December 7, 2017, contained 260 milligrams of alcohol in 100 millilitres of blood. 21 . Ms. Frenette also drew up an expert report showing, by extrapolation, that Mr.

Gauvin’s blood alcohol concentration would have been as follows at the material times identified by the Crown: Material time and date Blood alcohol concentration in 100 millilitres of blood 1:10 a.m. 07/12/2017 275-290 12:30 a.m. 07/12/2017 282-303 12:00 a.m. 07/12/2017 287-313 11:15 p.m. 06/12/2017 294-328 9:30 p.m. 06/12/2017 312-363 22 . Ms. Frenette testified at trial and offered expert evidence. She explained that her expert report was based on the assumptions that Mr. Gauvin had not consumed much alcohol in the 30 minutes either before or after the accident and that Mr.

Gauvin’s weight at the time of the accident was 100 kilograms, give or take five kilograms. 23 . Ms. Frenette also calculated the minimum amount of alcohol that Mr. Gauvin would have had to drink 30 minutes before or after the accident but before his blood was drawn at 2:40 a.m. to have had a blood alcohol concentration equal to 80 milligrams in 100 millilitres of blood at the material times identified by the Crown. Below are the results of Ms.

Frenette’s calculations: Material time and date Ounces of 40% alcohol Bottles of beer with 5% alcohol (341 millilitres) 1:10 a.m. 07/12/2017 14.0 – 15.1 9.3 – 10.1 12:30 a.m. 07/12/2017 14.5 – 16.1 9.7 – 10.7 12:00 a.m. 07/12/2017 14.9 – 16.8 9.9 – 11.2 11:15 p.m. 06/12/2017 15.4 – 17.8 10.3 – 11.9 9:30 p.m. 06/12/2017 16.7 – 20.4 11.1 – 13.9

ISSUES 24 . In my view, this matter raises the following issues: 1. Is the evidence sufficient to prove beyond a reasonable doubt that the accused was driving the white Honda Civic, debris from which was found at the scene when it crashed into a tree along Route 134 near Allardville on the morning of December 7, 2017? 2. If so, has the Crown proved beyond a reasonable doubt that the accused did not drink a large volume of alcohol as calculated by Ms. Frenette, the expert, 30 minutes before the accident? ANALYSIS CARE AND CONTROL 25 .

In order to answer the first question, the Court must weigh all of the evidence presented at trial. None of the witnesses saw the accident take place and no evidence was presented regarding the accused’s activities before the accident. We do not know where the accused was coming from, where he was going and what he had done in the hours before the accident. In fact, the Court has to decide this issue in light of purely circumstantial evidence.

It is useful to remember that circumstantial evidence can have persuasive value insofar as it is deemed reliable and sufficiently conclusive to draw an indisputable inference from it. In fact, circumstantial evidence must be such that, in the absence of other evidence, a judge can draw only one reasonable inference from it, R. v. Hodge, 1838 CanLII 1 (FOREP) . 26 . In the instant case, this evidence reveals that the accident occurred before Jean-Marc Chiasson and Stéphanie arrived at the scene at about 1:00 a.m.

The 911 call was placed at 1:14 a.m., after Stéphanie drove to the residence where Lisa Vienneau was sleeping. According to Mr. Chiasson, the white Honda Civic was completely destroyed and no one other than the accused was involved in the accident. Only the accused was found at the accident scene, seriously injured, moaning on the ground amid the debris, unable to speak and having difficulty breathing. 27 . Mr. Chiasson, his girlfriend Stéphanie and the firefighters, Alain Duguay, Michael Plourde and Kevin McGraw, reached the scene before the paramedics.

They began administering first aid to the accused and they all searched for other people, but there was nobody else. Paramedic Raphaël Cyr says that he administered suction to the accused upon arrival at the scene to clear his airways, which seemed to be obstructed. The accused also suffered several fractures, including one to the jaw. Constables Bruno Savoie and Joanie Breton arrived at the scene at 1:38 a.m., after the firefighters and paramedics. They examined the accident scene and also determined that the accused was the only person involved in this accident. 28 .

The evidence given by the witnesses who were at the accident scene on the morning of December 7, 2017, between 1:00 a.m. (when Jean-Marc Chiasson and Stéphanie arrived at the scene) and 2:00 a.m. (when the ambulance left the scene with the accused, headed for Chaleur Regional Hospital), also establishes that the accused was the only person at the scene and that he was seriously injured and unable to drink because he could not speak and seemed to have a broken jaw. In addition, the white Honda Civic was completely destroyed, split into several pieces and unserviceable.

The accident took place some time before 1:00 a.m. because, upon Mr. Chiasson’s arrival, there was no smoke or steam coming from the debris and there were no marks in the falling snow. 29 . Is it reasonable, based on this evidence, to infer that the accused was alone in the white Honda Civic at the time of the accident and, therefore, that he was driving? One thing is certain: someone was driving that car at the time of the accident. It did not crash into the ditch near the trees by itself. Is it reasonable to conclude that perhaps someone else was present and driving the car at the time of the accident?

If that were plausible, where did that person go? Did he or she climb out of the debris and leave the scene without leaving tracks or clues indicating or suggesting his or her presence? Could he or she have been in that Honda Civic at the time of this terrible crash without sustaining any serious injuries that would have prevented him or her from leaving the scene? If so, why would he or she have fled the scene, leaving the accused alone, moaning on the ground along a rather deserted road in the middle of a December night? 30 .

Believing in the theory that someone else was in the Honda Civic at the time of the accident seems unlikely to me. The most probative evidence that undermines this theory is the condition in which the Honda Civic was found after the accident. It was completely destroyed, scattered in pieces, broken into two parts separated by a distance of 50 to 60 feet. According to the witnesses, the car had

sustained a significant impact. In addition to this evidence there is the fact that nobody noticed anything at the scene that might suggestthe presence of another person. 31. In my opinion, it would be unreasonable to conclude that someone could have climbed out of the debris and left the scene beforeMr. Chiasson arrived. In fact, it is my view that the only reasonable conclusion, based on the evidence presented, is that the accused wasalone in the Honda Civic and that he was driving at the time of the accident.

Accordingly, I am satisfied beyond a reasonable doubt thatthe accused had the care and control of the Honda Civic at the time of the accident on or about December 7, 2017, at or near Allardville,New Brunswick. BLOOD ALCOHOL CONCENTRATION 32. Having answered the first question in the affirmative, I am now going to analyze the evidence as to the accused’s blood alcoholconcentration at the time of the accident. 33. It has already been determined that the accident took place before Mr. Chiasson arrived at the scene, i.e., before 1:00 a.m.

However,there is nothing in the evidence presented that establishes the exact time of the accident. We do know that samples of the accused’s bloodwere taken at 2:40 a.m. on December 7, 2017, and that his blood alcohol concentration was 260 milligrams of alcohol in 100 millilitresof blood at that point. 34. The samples having been taken more than two hours after the accident, the Crown cannot invoke the presumption of validity unders. 258(1)(

b) of the Criminal Code of Canada. The Crown must try to establish the accused’s blood alcohol concentration at the time ofthe accident through expert evidence by extrapolating from the results obtained from the samples taken at 2:40 a.m. on the morning ofthe accident. According to Ms.

Frenette, the accused would have had a blood alcohol concentration of 275-290 milligrams of alcohol in100 millilitres of blood at 1:10 a.m. and 282-303 milligrams of alcohol in 100 millilitres of blood at 12:30 a.m. on December 7, 2017.The closer the time of the accident gets to December 6, 2017, the higher the accused’s blood alcohol concentration would have been. 35. The defence asserts that the reliability of the results presented by Ms. Frenette depends on prior conditions that the Crown has notproved.

In fact, the defence submits that the accused’s levels of intoxication are unreliable as no one can establish when the accident tookplace. In the defence’s further submission, the Crown has not proved that the accused did not drink a large amount of alcohol in the 30minutes prior to the accident. With respect to the consumption of alcohol after the accident, I am satisfied beyond a reasonable doubt thatthe accused’s injuries left him unable to ingest anything in the 30 minutes following the accident.

As for the possibility of heavy drinkingin the 30 minutes prior to the accident, I agree with the defence that the Crown has to prove the facts on which the expert’s opinion inextrapolation is based, including that the accused did not drink alcohol heavily in the 30 minutes prior to the accident. (See R. v. Gosse, (ON CA), 29 O.R. (3d) 785; R. v. Bouchard, (NB BR), 233 NBR (2d) 182; and R. v. Steven VanceRasmussen, 2013 NBPC 2) 36. It is true that the exact time of the accident has not been established.

We do know, however, that the accident definitely took placebefore the 911 call, which was placed at 1:14 a.m., and before Jean-Claude Chiasson and Stéphanie arrived at the scene at about 1:00a.m., according to the evidence. I therefore find that the accident took place before 1:00 a.m. on December 7, 2017. 37.

Legally, the Court can consider circumstantial evidence to draw a reasonable inference that the accused did not engage in unusualexcessive drinking behaviour, unless the accused can point to indications in the evidence that suggest he might have engaged in suchheavy drinking behaviour a short period of time before the accident. In this case, the defence argues that the 26-ounce bottle of GrandMarnier found among the debris may imply that the accused could have engaged in heavy drinking in the 30 minutes before the accident.I do not share this view. 38.

First, very few details were presented in Court regarding the presence of this bottle. Apart from the fact that both police officers sawthe bottle at the scene of the collision, no further details were presented in Court. The Court is therefore not in a position to assess theconnection between the bottle’s presence and the possibility that the accused drank alcohol to excess 30 minutes before the accident. Atthe very least, it would have been necessary to establish what it was and how the bottle might have been connected with alcoholconsumption.

Other than the presence of this bottle, there is nothing in the evidence to suggest excessive alcohol consumption behaviourby the accused in the 30 minutes before the accident. 39. On the contrary, the accused was found alone at the accident scene at about 1:00 a.m., in an isolated location with neither housesnor businesses nearby, in December. In addition, the evidence given by the toxicology expert, which does not hinge on non-heavydrinking conditions, establishes that the amount of alcohol the accused would have had to consume in the 30 minutes prior to the

accident, in order to support the calculated blood alcohol concentrations, is so large that most human beings would be physically unable to drink so much. The body could not take in the required volume of 5% alcohol beer because there would not be enough room in the stomach to accommodate such a quantity of fluid. In the case of 40% alcohol, the body would try to purge the alcohol by inducing vomiting. 40 .

In my view, even in the absence of evidence to accurately establish the time of the accident, the evidence allows for the inference that the accused did not drink a large volume of alcohol, as described in paragraph 23 above, in the 30 minutes prior to the accident and, therefore, the expert evidence by extrapolation of the accused’s blood alcohol concentrations is reliable. 41 .

Based on the expert evidence, the accused’s blood alcohol concentration between 1:00 a.m. on December 7 and 9:30 p.m. on December 6 was between 275 and 363 milligrams of alcohol in 100 millilitres of blood, well above the legal limit of 80 milligrams in 100 millilitres of blood. In my opinion, the only conclusion the Court can reasonably accept, regardless of the exact time of the accident, is that the accused was in a very advanced and even health-endangering state of alcohol intoxication at the time of the accident.

According to the expert, when someone’s blood alcohol concentration approaches or exceeds 300 milligrams of alcohol in 100 millilitres of blood, the individual is at risk of cardiac complications, the loss of physiological control and even death. According to Ms. Frenette, the accused would have reached this critical concentration at about 12:30 a.m., half an hour before being found by Jean-Marc Chiasson and Stéphanie. 42 . Before concluding, I have to deal with another argument raised by the defence.

It was also argued that the calculations advanced by the toxicology expert are not reliable because she relied on the accused’s weight as indicated in the accused’s medical record. According to the defence, the Crown ought to have checked the accuracy of this information before assuming that the medical record reflected the accused’s actual weight on the day of the accident. I cannot accept this argument. 43 . The accused’s medical record includes the details of his admission to the emergency department at Chaleur Regional Hospital in Bathurst on the morning of December 7, 2017.

The Crown introduced that record in evidence with the consent of the defence. The Court received the document in evidence as relevant to this case. The defence neither disputed nor contradicted the information contained in the record. It was therefore reasonable for the expert to rely on it in preparing her report. The Court has received no evidence capable of raising any doubt as to the reliability of this information. 44 .

Having considered the totality of the evidence presented, I find that Joël André Gauvin was the driver of the vehicle involved in the accident on or about December 7, 2017, and therefore that he had the care and control of it at the time of the accident, when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood. Accordingly, I find him guilty of the offence under s. 253(1) (

b) of the Criminal Code of Canada . Judgment delivered at Bathurst, this 15th day of November 2019. ________________________________________________________ Brigitte Sivret Judge of the Provincial Court of New Brunswick