R. v. Wannop, 2015 ONCJ 337

Information No. 2811 998 14 00147 Citation: R. v. Wannop , 2015 ONCJ 337 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ALEXANDER WANNOP P R O C E E D I N G S A T J U D G M E N T BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD on May 15, 2015 at OSHAWA, Ontario APPEARANCES : B. Green Counsel for the Provincial Crown S. Khehra Counsel for Alexander Wannop ONTARIO COURT OF JUSTICE R. v. Wannop

Legend [sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – Indicates preceding word has been spelled phonetically. Page Reasons for Judgment, Wakefield, J. 1 Transcript Ordered: May 15, 2015 Transcript Completed: June 13, 2015 Ordering Party Notified: June 13, 2015 FRIDAY, MAY 15, 2015 R E A S O N S F O R J U D G M E N T WAKEFIELD , J. (Orally): Alexander Wannop is charged with one count of over 80, arising from a single motor vehicle accident on the 30th day of January, 2014.

Given the nature of the charge counsel were refreshingly focused on the one live issue in this trial. Defence conceded date and jurisdiction, rights to counsel and cautions, grounds for arrest, the approved screening device and roadside demand wording, the breath demand, all officer notebook and reports to assist memory, breath technician qualifications, voluntariness, and with the Crown concession of the breath test being taken outside of two hours, defence conceded the expertise of the toxicologist.

Defence essentially conceded that if the verdict was not resolved in the defendant's favour on either of the first two branches of an R. v. W.(D.) analysis, then the Crown had, indeed, proven its case beyond a reasonable doubt. The one live issue was the defence of post-driving bolus drinking, which meant that the time of driving was also not conceded. The Crown case was presented through five Crown witnesses; a civilian passer-by, Ms. Ann Russell, O.P.P. Constable Pam Diminie, O.P.P. Constable Jerome Brown, O.P.P.

Sergeant Paul Coolidge, a qualified breath technician and finally the toxicologist, Jean-Paul Palmentier. The defence case comprised the defendant and his father, John Wannop, hence all three branches of R. v. W.(D.) became engaged. Ms. Russell was driving home with her son. Their route was along Highway 7, just east of Brougham, in North Pickering. She believes it was close to 1:00 a.m. when she saw an overturned car in the ditch and stopped. She was understandably nervous and the defendant gets out of or at least walks from the overturned car over to her vehicle, while she is on the phone with 9-1-1.

She is unaware of how long the defendant's car had been there and she did not notice any exhaust or smoke or lights from the defendant's car. The defendant advised that he did not need the police. While that conversation resulted in her terminating the 9-1-1 call it seemed common ground that the defendant did not specifically direct her to terminate the call. She drove on for either a few more seconds or a few more minutes when 9-1-1 called her cell phone back, and she advised them the reason for calling in the first place was the sighting of the overturned car.

Whether seconds or minutes between the two 9-1-1 conversations is still a mystery given the wide-ranging estimates of Ms. Russell, who certainly never expected to end up testifying to the timing estimate between those two calls a year after the event. Her being directed to the courtroom clock to watch minutes pass was not overly instructive, when she reduced the time estimate given the painfully slow sweep of the second hand while everyone was staring at her, as opposed to driving along, unaware of the passage of time, on the date of the accident. Whenever the 9-1-1 calls were they resulted in P.C.

Diminie receiving a radio call at 52 minutes past midnight to attend the scene, and being on the scene at 0122, just after E.M.S. attended and just before the arrival of P.C. Brown, whose notes also reflect an arrival at 0122 hours. P.C. Diminie detects an odour of alcohol, makes an A.S.D. demand, resulting in a fail, places the defendant under arrest, transports him to the Whitby O.P.P. station, where Sergeant Coolidge conducts two breath tests in an approved instrument, resulting in truncated readings of 190 and 180, at three thirty-six in the morning. P.C.

Diminie also facilitated telephone conversations with the defendant's daughter, confirms the defendant was both cooperative and polite. She confirmed her arrival time might be in error and could very well be the time reflected in the E.M.S. and O.P.P. background event chronology report, namely of 0108 hours. P.C. Brown testified to examining the defendant's vehicle. While his recollection was that there was snow blocking the doors, he conceded that a photograph of the vehicle would suggest otherwise.

He recalled only one set of footprints, though he did not walk around the truck, so I am unclear if there are any other footprints on the

other side of the vehicle. The officer did not check for engine warmth. He was not assisted in determining the reliability of his arrival time by either the E.M.S. report or the event chronology. He did help John Wannop in picking up the defendant's tools that were in the back of the truck, and strewn over the area from the truck flipping. P.C. Brown also testified to not finding any empty liquor bottles around the area of the defendant's truck.

Jean-Paul Palmentier gave expert evidence setting out blood alcohol levels at an earlier proposed time of driving, and how earlier bolus drinking would impact on those calculated levels. Assuming care and control of the vehicle by the defendant between 12:50 a.m. and 1:08 a.m., he projected the blood alcohol range of the defendant between 185 and 235 milligrams of alcohol in 100 millilitres of blood. He testified that bolus drinking 15 minutes prior to care and control would increase that projection. Mr.

Palmentier also confirmed that the defendant's breathalyser readings would be consistent with the defendant consuming one standard size can of Coors Light Beer between 10:45 and 11:15 p.m., with an accident at midnight, and post-driving consumption of two mini 50 millilitre bottles of alcohol followed by a mickey or 375 millilitres in the hour leading up to the defendant's arrest. Mr. Palmentier also confirmed that on the basis of that hypothesis the defendant would have had zero blood alcohol at the time of driving if the accident occurred at midnight.

Coincidentally the defendant subsequently testified to that same drinking pattern. Apparently the defendant is an avid snowmobiler, including evening runs after work. He testified to enjoying such an evening on the 29th of January and was in the process of putting his snowmobile back up into the truck when he started chatting with other snowmobilers. That resulted in an offer of sharing a beer with him, to which he agreed, and consumed the standard size can of Coors light between 10:45 and 11:15 p.m. Mr. Wannop then testified that he started the drive home along Highway 7.

Approximately midnight the defendant was approaching Brougham where Highway 7 turns to the north, avoiding the 407. He described hitting a patch of black ice and flipping the truck. His description of the cause of the accident, including an acknowledgement of having badly worn tires, which did not grip the road very well, with that tire's description later being confirmed by Mr. John Wannop. The defendant's father also corroborated the defendant's self description of mental health challenges that have previously resulted in hospitalizations.

The defendant described severe anxiety for which he self-medicate with alcohol to relax himself. He testified that after this accident he had now gained insight into his condition and is following medical advice and a medication regime. However as a result of the motor vehicle accident Mr. Wannop testified to his then usual practice of self medicating by consuming at first the two mini bottles of Crown Royal, followed by the mickey of Canadian Club, while walking from the accident scene into Brougham, looking for assistance or even a phone.

Brougham is described as a small hamlet, much of which has been expropriated by Federal Government, and lacking any convenience stores or even a pay phone. Mr. Wannop walked back to his vehicle, but with time he had finished off his alcohol supply and tossed the empty bottles on the way back. Those bottles were never found. If I accept Mr. Wannop's testimony or am left in a reasonable doubt by it then clearly an acquittal will follow. In analyzing that testimony I must look at both the internal consistency of his testimony as well as assessing the consistency with his utterances while in police custody.

I do take the position that a defendant does not have any duty to provide an explanation to the police and has an absolute right to silence. I would reject any suggestion by the Crown to the contrary. However, I also take the position that where a defendant places an explanation on the record while in custody, cross-examination and Crown comments are clearly warranted. The defendant not advising the police of the drinking pattern at the station does not undermine his credibility. His assertion of the instrument readings being due to a lack of sleep as an alternative explanation does undermine his credibility.

In the case at bar the defendant did state that he had not been drinking. My notes of the police station audio video recording of the defendant's telephone conversation with his father are that "I only had..." the balance of that utterance I could not discern. He then said, "I never really did drink anything." And similarly "I never really friggin' drank anything." He also said that, "I can guarantee that what happened to the truck was not due to..." and again I could not make out the words, to know if that sentence was completed with a reference to alcohol or the state of his tires.

I do remind myself of the danger of assessing one side of a conversation, but it is clear from an enhanced play of the father's conversation that Mr. Wannop Senior was clearly worried about his son being impaired at the time of driving and was suggesting way to reduce the breathalyser readings. In cross-examination the defendant did not fare very well. He clearly undermined his own timeline and even on his own version Mr. Wannop's recollection would clearly have been effected by alcohol. Standing by itself I do not accept the defendant's testimony. Mr. Wannop Senior also testified.

Given his conversation on the phone with his son, at the station, I must clearly treat his testimony with caution. However, to his credit, the defendant's father did not hesitate to agree with the Crown that he was essentially attempting to thwart the police investigation, and was clearly pained at that perception of himself.

The defendant's father testified in corroboration about the defendant's prior hospital admissions, the anxiety issues, the bald truck tires and the time in which he received the first telephone call from his son, and the chance meeting with the driver who let the defendant use the cell phone to call his father. While exceedingly suspicious of the father's testimony, given the relationship and the insight into his character from the recorded telephone call at the station, I am not prepared to reject his testimony.

While I am not prepared to believe the defendant on his unsupported testimony I am obliged to accept that it might be true, especially where corroborated by the father's testimony, and while not corroborated by the toxicologist, is consistent with the evidence of the toxicologist. It follows that on the second branch of R. v. W.(D.) I am ultimately left in reasonable doubt by the defendant's testimony and the other evidence in trial and as such there will be an acquittal.

You are free to go, Sir. M A T T E R C O M P L E T E D FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Roberta McDowell, certify that this document is a true and accurate transcript of the recording of R. v. WANNOP, in the Ontario Court of Justice held at 150 Bond Street East, Oshawa, Ontario L1G 0A2 taken from Recording No. 2811-107-20150515-091124-10- WAKEFIG.DCR, which has been certified in Form 1, by Vickie Hall-Dewey. June 8, 2015 (Signature of Authorized Person) Transcript Ordered: May 15 2015 Transcript Completed: June 13, 2015 Ordering Party Notified: June 13, 2015