2011 ONCJ 654, 2011 ONCJ 654

TUESDAY, NOVEMBER 8, 2011 R E A S O N S F O R J U D G M E N T PUGSLEY, B. (Orally): The defendant, Charlie Butler, faces three Criminal Code allegations relating to his driving on August 27, 2010: Impaired driving, dangerous driving and failure to provide a proper breath sample into an approved instrument. Although scheduled originally for a 1½ day trial, the matter consumed parts of three days. The facts can be briefly summarized as follows: On August 27 th , 2010, the defendant played golf with three other persons. They had invited the defendant to make up their regular foursome on an occasional basis.

After the round of golf, they met at a local bar in Bolton, where the defendant consumed some non-alcoholic beer and some regular beer. He left the bar and on the way home, he collided with the rear of a motor vehicle that was stopped at a red light. The police attended and believed that he was impaired by alcohol. They arrested him and took him to the detachment for breath tests. At the detachment he was apparently in need of medical attention. He was carried bodily into an interview room and paramedics were summoned.

Part of the time that the paramedics were present was captured on the cameras in that interview room. The defendant was prone on the floor, being held down by the police officers and was complaining of extreme pain. Various persons in the room were appealing to the defendant to stop resisting and to allow the paramedics to help him. Eventually the defendant was transported to the Headwaters Hospital in Orangeville at his request, where he was seen by a doctor. The police brought an Intoxilyzer approved instrument to the hospital for the purpose of obtaining breath samples.

The device was set up and was readied, and when the defendant received medical clearance, the officers required the defendant to provide the breath samples originally demanded. The defendant took the mouthpiece into his mouth but did not provide a suitable sample. He was twice cautioned but did not supply an adequate sample and was then charged and released by the police at the hospital. He later went home from there, in the evening. The police believed that the defendant was feigning injury and deliberately did not provide a sample.

The defendant states that he was doing his best, and that he knew to a certainty that he would not blow over the legal limit because he had not had enough alcohol to do so. He tried to do so, but due to his medical condition at the time, was unable to provide a sample. The first crown witness was Mr. Jorg, J-O-R-G. Mr. Jorg was stopped at a red light on Regional Road 50 at Columbia Way, near Bolton, in the mid-afternoon of August 27 th , 2010. At this intersection there are three lanes for northbound traffic on Regional Road 50, as Columbia Way is approached.

To the right of the witness was a curb lane that started well south of the intersection in downtown Bolton, and where there were two northbound lanes for traffic, but that lane ended up being a turn lane for right turns only onto Columbia Way. To the left of the witness was a left turn lane to go west into a factory. The witness’ vehicle was in the centre lane, which was the only lane of Regional Road 50 that continued northbound, north of Columbia Way. Mr. Jorg’s vehicle was behind another vehicle, also stopped in the centre-most lane of Regional Road 50, waiting for a red light to change.

As he waited, the witness noticed that the vehicle approaching him from behind, later found to be driven by the defendant, was not slowing down. The witness pulled out of line to the left to try to avoid being hit by the defendant’s car but was struck anyway. The defendant’s car continued on and hit the rear of the vehicle that had been ahead of the Jorg vehicle at the red light, a blue Dodge. Mr. Jorg got out and observed that the defendant’s Ford Taurus had hit the rear of the blue Dodge vehicle. The driver of that vehicle was not injured.

The defendant was out of his car, and looked to the witness to be in shock. Mr. Jorg was angry at the defendant and asked in rather crude terms what had happened. The defendant stated, I don’t know, I don’t know. Mr. Jorg thought that the defendant’s words were slurred and that the defendant was in shock. He testified that he had seen the defendant stumble slightly a bit later, and that he was leaning against his vehicle. The road surface was clear. The day was sunny when the accident took place.

In cross-examination, Mr. Jorg stated that, as he approached Columbia Way, he was always in the lane that was going to be the northbound through lane after that intersection. At the time of the accident, he had been completely stopped at the traffic light. The police arrived at the scene about 10 minutes after the accident. Mr. Jorg agreed that the defendant’s words to him after the accident were not in his statement, recorded in the officer’s notebook. The second crown witness was the driver of the blue Dodge pickup truck hit by the defendant’s vehicle, a Ms McMahon.

While stopped at a red light facing northbound on Regional Road 50, she heard a loud bang, saw Mr. Jorg’s car beside her to the left, and then her large pickup truck was pushed forward by the impact of the defendant’s car. She described the road conditions as being perfect and the day clear and sunny. After the collision, Ms McMahon got out and went to see the defendant. She saw him half in and half out of his car. She asked Mr. Butler for his driver’s licence and insurance documents and the defendant agreed and walked around. She felt that the defendant didn’t look right.

She asked again for the defendant’s papers and he said they were in the trunk. By her observation, the defendant seemed confused and scattered. She was concerned that he would leave the scene so she took a photograph of his licence plate. She told her passenger that she thought he was drunk due to his odd behaviour and because he seemed more concerned with the damage to his car than about anyone else. She smelled no alcohol. The police arrived shortly after the accident. The officer happened upon the scene within minutes. The police spoke to her and then the defendant was seen to be arrested.

In cross-examination, the witness disagreed with a defence suggestion that they had just stopped when the accident took place. She believes that the defendant was confused and scattered after the accident and described him to the officer as impaired or drunk, although the impairment could have been by shock, she guessed. Constable McGee of the O.P.P. was the third crown witness. At about 3:40 p.m. on the 27 th of August, 2010, he was on general patrol in Bolton, when he came upon the collision already described. All the parties were out of their vehicles. No one required an ambulance.

He spoke to the defendant who was leaning into the rear seat of his Ford Taurus car at the time, looking at a laptop computer. The defendant stated to the officer he was looking for his documents. He advised the defendant to speak to him, but the defendant was not able to do so as he was looking for his driver’s licence. Constable McGee noted that the passenger side air bag in the defendant’s car had gone off, but not the driver’s side air bag. Constable McGee told the defendant that he needed to speak to him to see what had happened, and to make sure he was okay.

The defendant came out of the back seat area of his car and started to go to sit in the front driver’s seat, but the officer told him not to do that because the air bag had not gone off and the officer was concerned that it might go off after the accident and injure the defendant. Mr. Butler was able to produce his ownership and insurance, but not his driver’s licence at that time. Constable McGee noted that the defendant had spoken to him briefly, but appeared to be avoiding being close to the officer and did not look at him in the face when he spoke. He thought the defendant was being evasive.

The defendant denied being injured or needing an ambulance and appeared to move quite easily, except for what the officer took to be signs of impairment. The officer described those signs as bloodshot and glassy eyes, slow and slurred speech, somewhat unsteady on his feet, and a surprisingly heavy odour of alcohol on his breath. He asked the defendant where he’d come from and the defendant told the officer that he was coming from Toby Jug’s, a bar in Bolton. The defendant stated that he had non-alcoholic beer there.

Adding together his observations and what the defendant stated, Constable McGee determined that he had reasonable and probable grounds to believe that the defendant’s ability to drive a motor vehicle was impaired by the consumption of alcohol. At 3:48 p.m., he arrested for the defendant for impaired driving. He handcuffed Mr. Butler and placed him into the back of the police car. Mr. Butler at first dug in his heels and did not want to go into the car but then did so without problem. In the police car the officer provided the defendant with his rights to counsel.

When asked if he understood, the defendant said, no, I’m not sure why. The rights to counsel were read again. This time the defendant said he didn’t know if he understood. He then agreed that he wanted to speak to a lawyer. The defendant was provided a caution which he understood and then was read the breath demand. When asked if he understood the demand, Mr. Butler said no. Constable McGee explained what the demand meant, and the defendant stated he had not consumed any alcohol. Constable McGee said that if that was the case, he’d be free to go.

The officer re-read the demand and asked if the defendant understood and the defendant replied he was not sure and could he speak to his wife to see if he understood. Constable McGee said that was not possible. At 3:59 p.m., Constable McGee left the scene to drive to the nearby police station with the defendant for the purpose of breath tests. The defendant’s demeanour was frustrated and angry at that time. He was adamant that he had drank nothing alcoholic. Part way during the brief journey to the police station the defendant became quiet. They arrived at the Bolton sub-detachment of the O.P.P. at 4:04 p.m.

Constable McGee got out of the car and observed that the defendant was in the rear of his police cruiser and was unresponsive. His eyes were open and staring. He blinked and the officer could see the defendant’s pulse in his neck. Constable McGee asked Mr. Butler to get out of the cruiser. He made no reply but did make some

moaning noises. Constable McGee was concerned that the defendant was in medical distress. He called for an ambulance and he and Constable Smith carried the defendant into an interview room in the station. He described the defendant’s legs as giving out while he walked, and that his eyes were open and blinking. The defendant was making no sounds, and did not respond to what they said to him. They took off the defendant’s handcuffs and placed him on the floor in the interview room in the recovery position so that he did not choke.

He then observed the defendant to have seizure-like symptoms and called for the ambulance to be expedited. The defendant made more intense moaning noises. When the ambulance arrived, the defendant became combative with the police and paramedics and his limbs had to be physically held down by three police officers. He was described as flailing his arms and kicking with his legs. At one point the defendant spoke, complaining that his neck was in in intense pain and that he had had fused discs from a prior accident.

The defendant wouldn’t let the paramedics treat him or check his blood sugar and could not recall his date of birth. Constable McGee’s observation was that what started out as a seizure, calmed down to being angry before the arrival of the paramedics. The defendant agreed that he wanted to go to the hospital on a backboard with a neck brace. These were applied and the defendant travelled by ambulance to Headwaters Hospital in Orangeville. Constable McGee followed by police car. He was at the emergency department at 5:22 p.m., and they waited for a doctor to see the defendant.

Meanwhile, the defendant’s wife also arrived and spoke to Constable McGee. A Dr. Yu, Y-U, saw the defendant at 6:06 p.m., and after that told the officers that the defendant was cleared to do a breath test. At 6:16 p.m. and then at 6:31 p.m., Constable McGee called duty counsel. At 6:36 p.m., duty counsel returned the telephone call and the defendant spoke to the duty counsel lawyer in private by way of a portable telephone. During this time, Constable McGee observed that the defendant was complaining of neck pain and was somewhat combative, although strapped down at the time.

At 6:40 p.m., the telephone call completed and Constable Roberts, the qualified technician, took charge of the defendant for breath tests at the hospital. At 6:54 p.m., Constable McGee received Mr. Butler back into his custody. Constable Roberts told Constable McGee that the defendant had failed to provide a proper breath sample. He processed the defendant, serving documents on him at the hospital, and then departed from the scene. Part of the time that the defendant was in the interview room at the Bolton Detachment, the video recording equipment for that room was activated, apparently by Constable Roberts.

That video was made part of the crown’s case as Exhibit 1. On the video, the defendant is seen to be on the floor and Constable Deol is holding the defendant’s left arm, Constable McGee his right arm, and Constable Smith the defendant’s feet. They asked him to stop fighting and the defendant said he wasn’t fighting. The paramedic is seen to be talking to the defendant, telling him that they needed to take a blood sample to check his blood sugar. The defendant stated that he was not a diabetic. As he was speaking, he was moving his neck around. The defendant stated he’d been drinking non-alcoholic beer.

He said his neck was hurting, and he asked the officers why they were hurting him. He said that he had a fused disc in his neck, that he remembered that. He was asked by the paramedic to stop resisting and that he should stop playing games. The defendant said he took 30,000 pills a year for arthritis. The paramedic attempted a question and answer session. The defendant stated his neck was killing him and that his back hurt and his toes and his hands were tingling. He was told he could go to the hospital, but that the neck collar and backboard would be very uncomfortable.

The paramedic said going to the hospital was a precaution based on the defendant’s thrashing about. The defendant agreed to go to the hospital. In cross-examination, Constable McGee stated that he was flagged down at the scene by Mrs. McMahon. At the scene the defendant showed no signs of pain and his speech was slurred during their normal conversation. The seizure-like symptoms that Constable McGee saw at the police station, before the paramedics arrived, were movements of the arms and legs without any apparent control by Mr. Butler. When the defendant started to fight the officers, they held him down.

Constable McGee held the defendant in a way that was intended not to hurt him. He believed that the defendant’s neck was, indeed, hurting him. At the hospital, diagnostic imaging was done after the breath test attempts. At the station the defendant gave a very wrong date of birth to the paramedic on request. The defendant may have received oxygen at the hospital by the evidence of this officer, but he did not know for sure. Provincial Constable Dwayne Smith was the fourth crown witness. He arrived at the scene of the accident 3:52 p.m.

The defendant was seated in the rear of Constable McGee’s cruiser at the time of his arrival. The roads were bare and dry, and the weather clear and warm. At 4:01, he followed Constable McGee and the defendant to the Bolton station. He noted that the defendant was not answering the police request to exit the rear seat of the cruiser. His eyes were open, he was blinking and breathing. His tongue was sticking out of his mouth and he was moaning. They took him into the interview room. Once there, Constable Smith observed that the defendant had a strong odour of alcohol on his breath and was slurring his speech.

He was described as combative with the police while he was on the floor in the recovery position waiting for the paramedics to arrive. Constable Smith held his legs to stop the defendant from kicking.

Constable Smith accompanied the defendant in the ambulance to the hospital. He sat a few feet away from the defendant while in the ambulance. He noted that the defendant had a strong odour of alcohol and his eyes were red and glassy. He answered some questions but not others. He could not identify the year correctly. At the hospital, a technician came to draw blood for the doctor, but the defendant refused to allow any blood to be drawn. At 7:00 p.m., the defendant was taken to x-ray. A nurse asked for a urine sample and the defendant refused that sample, too.

When released by the arresting office, the defendant’s demeanour changed. He was observed to be calm, cooperative and compliant. In cross- examination, the officer suggested that it was at about 9:45 p.m. In the ambulance, Constable Smith observed the odour of alcohol on the defendant’s breath from about two feet away. He could not tell if it was beer or not. It was the odour of alcohol he smelled. Constable Smith testified that the defendant seemed to be in pain, but that he believed that the defendant was faking the pain.

He removed the handcuffs shortly after arriving at the station at 4:05, in the interview room, and the defendant was laid down on the floor at that time. The last crown witness was the qualified technician, Constable Roberts. He was informed that he would be needed to test the defendant at 3:45 p.m., on the date of the alleged offence. He was already at the detachment because his shift started at 4:00 p.m. When Mr. Butler was brought in, he saw that the defendant was vocal and combative and an ambulance was called for to assess his condition.

By combative, the officer meant that the defendant was yelling and screaming and was incoherent. He was seen to be struggling on the floor as the officers tried to calm him. The ambulance attended and at 4:55 p.m., they left to take the defendant to Headwaters Hospital. Constable Roberts had noted a smell of alcohol from the area of the defendant but did not attend closely to him at the detachment. He described turning on the record button to start the video record of the events in the interview room, which is also used as the breath room at that detachment.

Constable Roberts went to the hospital, stopping in Caledon East, the main detachment of the O.P.P., to pick up an Intoxilyzer 8000C approved instrument, to take to the hospital to test Mr. Butler. He got to the hospital at 6:18 p.m., and set up the instrument in an available patient room. He readied the instrument which was ready to take the first breath sample at approximately 6:43 p.m. Constable Roberts inputted the defendant’s particulars into the device and the defendant was brought into the room in a hospital bed by a nurse. The defendant was wearing a cloth neck brace.

The defendant appeared to be calm and was seen to be speaking to the nurse. The bed had been raised so that the defendant was sitting at about a 45 degree angle. The defendant had spoken to duty counsel. The officer introduced himself and made the formal technician’s breath demand. As soon as he did so, the defendant immediately started to breathe very rapidly and started to yell that he couldn’t breathe and was in intense pain. He then was seen to calm down and continued to fail or refuse a breath sample.

As the defendant yelled, Constable Roberts observed him to squirm in the bed and rotate from side to side as he yelled. Constable Roberts explained the consequences of failing to provide a proper a proper breath sample and the defendant then calmed down and said, okay, yeah, and was normal and relaxed again. Constable Roberts had been told by Constable McGee that the defendant was medically cleared to give a sample. He saw the defendant calm and saw him speaking to the nurse, so agreed that in his view, the defendant was able to give a sample.

When the defendant came into his charge, he observed that the defendant’s eyes were very red and glassy and very bloodshot, and Constable Roberts immediately smelled a very strong odour of alcohol upon the defendant’s being brought into the room. The defendant’s speech was slurred and the defendant was described as speaking slowly. Constable Roberts had the defendant brought over to the machine which, in his view, was perfectly positioned so that the breath hose could be presented to the defendant without the defendant having to moving his head at all.

All the defendant then had to do was provide a sample by breathing into the tube. The defendant was calm, was sitting up in bed and was breathing normally. Constable Roberts opened up a clear, clean mouthpiece and the defendant took it from the wrapper and, as instructed, blew through it very briefly to make sure the mouthpiece was clear. The defendant then immediately turned his head away and started heavy breathing and began to yell incoherently.

The defendant was instructed on the procedure and cautioned about refusing, because the officer could see no reason why the defendant could not provide a proper sample. The defendant said, ouch, and asked who said he was able to do this, that there was too much pain.

He said he wanted the doctor to tell him that he could do this and complained that his neck was in pain. The defendant then was seen to calm down and said that he wanted to do the test. Constable Roberts put the mouthpiece in the breath tube of the instrument and placed the end of the mouthpiece in the defendant’s mouth. The defendant did not exhale any air. There was no tone, no condensation on the mouthpiece and the defendant’s chest was not moving. There was no sound of any air being exhaled by the defendant.

The defendant stated he could not do it, that the pain was too much and then was seen by Constable Roberts to take three deep breaths and sigh. Constable Roberts told the defendant how to provide a sample and that asthmatics and persons with diminished lung capacity have still been found to be able to give adequate samples. None of the three initial attempts by the defendant resulted in the defendant exhaling any air into the breath tube for analysis. At 6:52 p.m., the defendant was again cautioned and then was given four more tries.

Up until the mouthpiece was put into the defendant’s mouth, he breathed normally. As soon as the mouthpiece was put into his mouth, he stopped breathing at all. After five minutes the instrument timed out. Constable Roberts advised Constable McGee of the failure to provide a breath sample and Constable McGee again took charge of the defendant. In cross-examination, the officer noted that in the interview room the defendant appeared to be struggling and had initiated some seizure-like behaviour. He simply pressed the record button in the constable’s room to commence the video record.

The interview room is used as the breath room in that detachment so the video was ready for him to use, anticipating the breath tests to come. He glanced into the breath room and saw the defendant being restrained by other officers, not forcefully, such as kneeling on the defendant’s back, but restraining his movements. When he saw the defendant at the hospital, the defendant was in a soft neck collar and raised 45 degrees, so he was obviously not still on a backboard. At the detachment the defendant’s voice was yelling and incoherent.

When he heard him at the hospital, the defendant was calm and his speech pattern was detected and was found by the officer to be slurred. He understood what the defendant was saying at the hospital even though the speech was slurred. When the defendant was given the mouthpiece to present his sample, at no time did the instrument emit a tone indicating that the proper airflow requirements were being met. This occasion was the first time that this qualified technician had sought to obtain breath samples from a test subject at the hospital.

In the seven attempts made by the defendant, the defendant simply provided no air into the mouthpiece at all. He observed no condensation from the defendant’s breath in the clear mouthpiece. The defendant was the first defence witness. Mr. Butler, at the time of the trial, was 61 years of age and had a degree in civil engineering, and had been a real estate broker for some 23 years. He had no criminal record and had been married for almost 40 years. On the morning of the day of the alleged offences, he was filling in as the fourth member of a golf group.

He got to the golf course near Bolton at 8:00 a.m., for an 8:15 a.m. tee time. He testified that the game ended at about 12:45 p.m. He had no alcoholic beverages at the golf course. After the golf round he was invited to meet the other three players for a beer at the Toby Jug’s Pub in Bolton. He went home, had a fast shower and a bite to eat, for about 45 minutes or so, and then joined the group at the pub. He testified that he got to the pub at 12:45 p.m. He then realized that he left his wallet in his golf bag in the other car. He arranged with his wife to have her come and pay the bar tab later.

He then ordered an O’Doul’s dealcoholized beer on ice for himself, and a Coor’s Light for his golf partner. Mr. Butler described that he worked the room, seeking to develop contacts for future real estate work. He knows that after he finished the first O’Doul’s, he had a Coor’s Light beer on ice. He figured it took about half an hour between beers so he started the Coor’s Light at 1:15 p.m. At probably 1:45 p.m., he had another O’Doul’s and then another Coor’s Light.

At that point he bought his golf friend another Coor’s Light and his wife arrived around that time, perhaps 3:00, and he got her a glass of white wine, and at the same time, had another O’Doul’s, on ice. In total, therefore, he had three O’Doul’s and two beer by his reckoning. The beer were Coor’s Light because, as the defendant said,

everyone knows I drink Coor’s Light. His wife paid the tab by Visa and then they went out to the parking lot. His wife asked him if he was all right to drive and the defendant said he was fine since he knew what he’d had to drink. He and his wife, he said, have left cars parked before, when he felt he shouldn’t drive and as he testified in chief, many times he let her drive him home. Mr. Butler testified as well, that on at least three occasions he’s been stopped by the police and has had to provide ASD samples to the police. Each time he thanked the officers for keeping the roads safe.

He always had told his children not to drink and drive. He testified that Mr. Sago, S-A-G-O, his golfing friend left a little before he and his wife left. As he drove home north on Regional Road 50, he approached the intersection with Columbia Way. He was sure that he saw the lights ahead as green. He knows that a lot of the time people use the curb lane to pass cars in the centre lane and then come upon Columbia Way and find out that the curb lane has to turn right and so move abruptly left.

On the day of the accident he saw a green light ahead and a white car was in the right-hand curb lane and seemed to be getting close to him. The best he can figure was that he was distracted by that car and did not notice how fast the light turned to red. All he can recall is that he looked up and was upon the stopped vehicle and barely had time to brake before he struck it. He believed that he only hit the pickup truck. The white car to his right had seemed to be encroaching onto his lane. After the collision, he instantly recalled that he did not have his driver’s licence with him.

He immediately checked his computer in the back seat, because the computer is his lifeline and is very important, and he telephoned his wife to have her bring his driver’s licence from his golf bag to the scene of the accident. He was not aware of any injury at the time of the collision. The passenger air bag had deployed but not the driver’s air bag. Photos of his car and the scene were taken later and filed as exhibits at the trial. At the scene the defendant recalls other people being there, and then the police, and his wife arriving with his wallet.

The defendant described his medical condition at the time of the accident. He stated that he had had a fused disc at top of his neck since birth, chronic arthritis and past athletic injuries. He has a disability parking permit for his vehicle. The next thing the defendant recalled after being in the police car, was when he woke up on the floor with people holding him down. The person holding his legs was really hurting him. Those holding his arms were not. He was very uncomfortable. In no way, shape or form, he testified, was he aware of fighting the officers and he was absolutely not combative with them.

He was only trying to get the officer to give him some slack for his legs. He did not want his blood sugar checked by the paramedics because he gets two needles a week and is a blood donor and doesn’t want any more needles. Mr. Butler also testified that at no time did anyone ask for a blood sample for any other analysis other than blood sugar. He described his neck, arm and back as hurting. During the ride to the hospital in the ambulance, he recalls having an oxygen mask on and pushing it away, and that he was strapped to a backboard that made the ride very uncomfortable. Mr.

Butler testified that he vomited at the hospital but no one came to see if he was okay. He also stated that he’d been having breathing problems and that his chiropractor had told him previously that he had a floating rib. He constantly asked for pain pills but was never given any by anyone at the hospital. He testified that he only x-rays and a CT scan after the attempted breath test. He recalls only two tries at providing breath samples, not the seven tries that Constable Roberts testified about.

The first try he described, he was obviously trying to blow and the second try, the officer wrongly accused him of pushing the mouthpiece out with his tongue when he was only obviously licking his lips because they were dry. He remembers Constable Roberts telling him to blow as if he was blowing up a balloon. He then said he did not recall that and that he does not recall ever being told how hard he had to blow. He thought Constable Roberts was frustrated or angry. He does not recall asking to see the doctor and believes that he remembers saying that he wanted to give a sample.

He does not recall telling Constable Roberts specifically that he was in a lot of pain but that he had told everyone that on many occasions and no one believed him. He knew that he certainly could not have blown up a balloon because of the pain from his back. He thought that his computer in the car had struck him in the back in the accident, aggravating his old thoracic problem, causing the back to be

uncomfortable again and that led to him not being able to blow into the instrument. The defendant also told the officer he was unable to sign his release papers and did his best to scratch a mark. The defendant pointed to these as evidence of his then disability. He also could not believe how he could have been sitting up at the time of the breath test attempts. He testified that he firmly believed that he was still on the backboard up until the discharge from the hospital. He was not allowed to use the washroom before his discharge and ended up urinating in his clothes. Mr.

Butler testified that his wife bought him a neck brace and that he used it for two weeks full-time and then off and on for a further two to three weeks after the accident. The persons at the hospital gave him nothing for his pain. At home he took Tylenol, had a shower and went to bed. The next morning there was blood on his bed and he realized that he must’ve hit his head in the accident and that it had bled in the night-time. He also found his arm to be uncomfortable as well. He visited his family doctor some three days after the accident. The defendant was cross-examined at length by the crown.

After the accident he had a chance to collect his thoughts and reduce them to writing and he understood the value of this having seen the video, because he questioned whether he recalled some events or just saw them on the video or recalled events because of what other witnesses had said in their testimony. Mr. Butler testified that his golf game ended at 11:45 a.m., and that when he said 12:45 p.m. in his evidence in chief, he had corrected that to 11:45. The defendant was asked if he had ordered anyone else a beer and stated that he ordered his O’Doul’s and Mr. Sago’s Coor’s Light, took Mr.

Sago the Coor’s Light and then returned and got his O’Doul’s. He did not buy anyone else any beer. Mr. Butler was asked if it was not unusual to play golf with this group. He answered that it was not common but that if he was needed he was available. He was asked if he had a number of times before golfed with this group before and said, no, only once. He was asked if he went to the pub regularly with Mr. Sago and said, no. When asked how he knew what Mr. Sago wanted for his beer, he corrected himself saying that while he doesn’t go to the bar with Mr. Sago, he sees Mr.

Sago at the bar once or twice a week, when Mr. Sago’s in town. He knew Mr. Sago from regularly playing poker with him at Mr. Sago’s home and elsewhere. Mr. Butler ran a tab for his drinks, knowing that his wife would be in later to help pay. He testified that he kept track of what he had to drink, not the timing of his drinks, saying that he alternates his drinks very carefully, that he’s very organized in that way.

He recalls the pattern of one O’Doul’s, one Coor’s Light because, in addition to his other medical conditions, he’s also afflicted with obsessive- compulsive disorder and takes medication for that as well. In addition to what the defendant purchased as thank yous for Mr. Sago, he also saw Mr. Sago drinking other alcohol. The defendant disagreed that O’Doul’s and Coor’s Light would look the same in a glass, stating that he can tell the difference by looking at the glass. The crown asked Mr. Butler how he could recall the amount he had had to drink.

His answer was that he seldom drank more than two beers on any trip to a bar. He is a real estate broker and it is very hard to do business without having a driver’s licence. Mr. Butler was asked if his wife had asked him if he was okay to drive. He confirmed that yes, she did. This was a fairly regular exchange that they have, because they are very conscious of practicing what they preach. It was a regular exchange and Mr. Butler did not believe at that time that his wife believed that he’d only had two beers. Mr.

Butler agreed that on the road approaching Columbia Way, northbound on Regional Road 50, he has seen a pattern of vehicles tending to act in certain ways as they approach that intersection. He described himself as an extremely conscientious driver who obeys the two second rule religiously, but was undoubtedly distracted due to the green light and the car that seemed close to him in the curb lane. Mr. Butler testified that he didn’t believe there was a vehicle directly in front of him as he approached the intersection within the two second following distance.

He recalls traffic on the road and in both his lane and the right turn lane where the white car was. He agreed that he didn’t slow to let the white car move in front of him because he was undecided on what to do, even though the white car was beside him and he described it as wandering in its lane. He was undecided and distracted by that car. The defendant testified that he was not allowed to go to the washroom when he needed to do so at the hospital. He asked the x-ray technician but was told he’d have to wait until he returned to the triage area.

He did not recall a police officer asking if he wanted to go to the washroom nor any request for a medical urine sample by a nurse.

He does recall some person at the hospital asking him for a blood sample to check his blood sugar and again, he responded as he had told the paramedic earlier, that he was not diabetic. He agreed that he refused to give a blood sample for the purpose they told him they were taking it. By this he meant, he did not need his blood sugar checked. He conceded that he was in and out of full consciousness at points during this time. Mr. Butler agreed that there were substantial gaps in his memory and that he was confused to hear some of the crown evidence during this trial.

When asked if he was in and out of consciousness, he denied that he was unconscious, just at times foggy and not completely with it. He had had a couple of drinks and the events were nearly one year before, but he did not think he had consumed enough alcohol to impair his judgment driving or he would have gone home with his wife in her car. He was not sure if his wife was heading home or if she had other errands to run on the way home. He didn’t want to have a blood sample taken but described being used to lots of needles. He did, however, describe trying to give a proper breath sample.

The defendant testified that he couldn’t recall more than two tries at giving a breath sample and anyway, that the qualified technician only had five minutes to do the rights to counsel and everything, so the defendant did not see how he could have done any more than two tries in five minutes. The crown asked the defendant if he recalled his evidence in chief when he stated that on the first of his two attempts he “obviously I tried to blow”. The defendant answered that he did not recall saying those words but knows he tried to blow.

The phrase had no particular significance to him, rather he did not have enough breath to complete the test as the officer requested. The following question and answer sequence then took place in cross-examination: The crown asked the defendant to provide more detail: The mouthpiece was in your mouth, what did you do? The defendant: I try to do as I’m instructed. The crown: Which is what? The defendant: To provide a complete sample. The crown: How? The defendant: By blowing into the device. The crown: You blew into it? The defendant: I did. The crown: You knew what you had to do. It wasn’t foreign.

The defendant: I’ve done it in the past so, um, I can’t say I recall it being easier or harder to blow than the other times. This time I was unable to provide a sample, prolonged and strong enough to register on the device. The evidence then continued with the defendant testifying that on the second attempt Constable Roberts accused him of pushing the mouthpiece out of his mouth with his tongue, when what really happened was that his lips were parched and he was licking his lips to moisten them. Constable Roberts was angry at him and didn’t let him try to provide a sample this second time. Mr.

Butler was reminded that in his evidence in chief, he testified that he denied any knowledge of Constable Roberts telling him how much air pressure he had to apply to provide a proper sample. The defendant replied that he stated several times that he’s confused about what he recalls himself, or what he saw on the video and that he did not recall Constable Roberts telling him how hard he had to blow.

When given a chance to qualify what may or may not have happened, the defendant was more inclined to say that the officer, in fact, had not told him how hard to blow and he recalls this because he was more lucid by that time. In the end, Mr. Butler was confident that he

was not told how hard to blow into the device. Mr. Butler was sure that he was still on the backboard when his wife came to take him home. No one at the hospital gave him any pain medication but he was seen by a doctor there. Robert Sago was the second defence witness. On August 27 th , 2010, he golfed with the defendant at Glen Eagle, between 8:00 a.m. and 11:45 a.m. Mr. Butler was asked to golf instead of a member of their regular foursome. No one in the group had alcohol at the golf course. He has known the defendant since the 1970’s and they used to work for the same company.

After golf he went home, had a sandwich and ran a couple of errands and then went to Toby Jug’s Pub. He got there between 12:30 and 12:45 p.m. It was a regular place to meet after golf. Before Mr. Butler arrived at the pub, Mr. Sago started a beer. When the defendant arrived, the defendant had an O’Doul’s and brought Mr. Sago a Coor’s Light. One more beer was purchased for him by the defendant before Mr. Sago left at 3:00. Mr. Sago recalled that between 12:30 and 3:00 p.m., Mr. Butler may have had two beers. When Mr.

Sago left around 3:00 p.m., there were no noticeable effects of alcohol in the defendant’s demeanour. His speech was normal but he had not noticed the defendant walking. In cross-examination, Mr. Sago stated that he had had a beer with the defendant regularly in the past, more than once a month. He does not keep track of the number of drinks people he drinks with have. He does believe that when they drink a limited amount his estimates of what they had drunk were more accurate, within one beer for sure, if not exactly accurate. He does not keep a tally, however.

He made notes after talking to the defendant a number of weeks later, then qualified that to say 10 days later. When the defendant first told him what happened, he didn’t talk about it. They only spoke later when he returned from Florida. Most likely, the defendant ordered the drinks at the bar. The witness was seated outside on the patio. He does not recall the server ever coming outside nor being there when the defendant ordered the drinks. Mr. Sago drinks from the bottle, while the defendant drinks from a glass with ice, whether alcoholic or non-alcoholic beer. Mr.

Sago agreed that one cannot tell by looking at a glass whether the contents are beer or near-beer. He recalls the defendant specifically having an O’Doul’s and told the defendant, if you need a witness I’ll come and testify that you drank an O’Doul’s. In re-examination, the witness agreed that he sent the defendant an email with his recollection of events in late October of 2010, before he went to Florida. Charlene Butler, the defendant’s wife was the final witness. On August 27 th , 2010, Ms Butler was getting ready for the start of the new school year at the school where she’s a teacher.

The defendant called and said he’d left his wallet at home. She told him she’d pick him up around 3:00, at the Toby Jug’s Pub. She went there around 3:00. She’s been to that pub many times before. She had a glass of white wine. The defendant had one beer, a low alcohol beer. She left around 3:45 p.m., after she paid the defendant’s bill with her Visa card. The defendant appeared to be fine to drive when they left the pub together. She did not ask if he was okay to drive, but described that the defendant usually tells her if he feels he’s had too much to drink. His diction was fine.

They left in their separate vehicles to go home, north on Regional Road 50. When she got home the defendant was telephoning to say that he’d been in a car accident and to bring his wallet to the scene. She did so, arriving at the accident scene about quarter to 4. The defendant was slouched down in the rear seat of the police car at the time. She went home to await. She then called the police a couple of times and learned the defendant was at the Orangeville Hospital. She travelled there but could not see the defendant at first because he was in custody.

She described hearing the defendant moaning and gagging or retching from outside the room. The police officer there told her that the defendant was fine. They suggested she go home and they’d call her later. She did so and they did call around 9:00 p.m. She returned to the hospital and a police officer explained certain release papers to her. The defendant was still in bed. She could not tell if he was on a backboard but did say that there was neck brace on the floor. She spoke to a nurse and a doctor. They got a wheelchair for her because the defendant stated that he couldn’t walk and she took him home.

Ms Butler produced and identified the bill from the Toby Jug’s Pub and her Visa transaction receipt related to that bill, and they were both filed as exhibits.

Ms Butler agreed in cross-examination that they kept alcohol at home. When they left the pub, she believed the defendant was fine to drive. When she attended at the accident scene with the defendant’s wallet, she did not pause to ask if he was hurt, he just said it’s bad and she left home with the wallet. She was worried about whether he’d been injured but knew that her husband would be more upset if he knew she was there, so she went home to wait. After they left the hospital, the defendant described his neck hurting and he was obviously shaken up.

He told her the accident had taken place after some guy had come up on the inside lane but she could not recall exactly what he told her about the accident. The defence submits that none of the charges have been proven beyond a reasonable doubt. In particular, the defendant submits that, because of his injuries, the defendant could not provide an adequate breath sample although he tried to do so.

With regard to the impaired driving count, the defence points out the conflicting evidence as to the signs of impairment and speculates that the odour of alcohol described by the witnesses may, in fact, have been an odour of the non-alcoholic beer. There was no evidence of bad driving before the accident, no evidence of how the defendant walked, other than the defence evidence, stating that it was fine and that the officer’s evidence of slurred speech was absent from the video taken in the interview room. It was submitted that the accident was caused by a momentary inattention by the defendant.

Against the crown evidence, the defendant noted that the defendant only had two real beer, and Mr. Sago and Ms Butler both said the defendant was not showing any signs of impairment moments before the accident, that other witnesses saw him as dazed and in shock, and that the defendant himself was credible as to his alcohol consumption.

With regard to the dangerous driving count, the defence submits that the accident was caused by a momentary distraction and that while the defendant had consumed some alcohol, the amount consumed was very low, and there was no reason for the defendant to think his judgment might be impaired by that alcohol. The crown submits that all counts have been proven beyond a reasonable doubt, although there was little enthusiasm for this submission on the dangerous driving count.

On the impaired count, the crown notes that the test is whether the defendant had any degree of impairment of his driving ability by alcohol consumption. Here the crown submits that the accident was inexplicable. It was a clear, warm, dry day and the defendant hit two vehicles fully stopped at a stop light. The crown submits that the defendant’s admitted distraction was really impairment. Further, the crown notes that the defendant’s memory is admittedly fuzzy of the events of that accident. The crown submits that Ms Butler’s evidence was incredible and not to be believed.

Further, the crown suggested that the defendant’s speech on the video was not clear at all. At the scene of the accident, the two civilian witnesses noted that the defendant was not acting normally and Constable McGee, Constable Smith and Constable Roberts all noted signs of impairment by alcohol. Further, the crown suggested the defendant deliberately avoided giving blood and urine samples to avoid those substances later being seized for analysis. With regard to the refuse breath sample, for seven attempts the defendant blew no air at all through the mouthpiece.

His breathing and general demeanour were fine until he was put in the position of having to give a sample and then he was suddenly unable to breathe. I start my analysis by noting that the defendant at all times when seen by the crown witnesses, had recently been in a motor vehicle accident. Notably, the passenger air bag was deployed and the defendant’s driver’s side air bag was not. Although seat belted, the defendant had been involved in a moderate car accident and the effects of this accident on someone of his medical background must be considered. I note as well, however, that although Mr.

Butler described his medical issues in detail, emphasizing his disability, he did, in fact, golf for 3½ hours that morning without apparent ill effect. Further, in his evidence in chief, as well as in cross-examination, Mr. Butler was his own worst enemy. He prevaricated continuously, was argumentative and, on at least one occasion, angry with the crown, and was quite capable of papering over cracks in his recall by extrapolating from what his usual experience was; in short, not at all an impressive witness.

This does not, of course, mean that he’s guilty of these offences, or any of them, even if I disbelieved the defendant as I am inclined to do, nonetheless, on a Regina v. WD analysis, his evidence may be capable of raising a reasonable doubt, or the crown may fail in proving

each charge beyond a reasonable doubt on the evidence that is admissible. On the dangerous driving count, the crown relies upon, first, the fact of the accident, and second, the fact of the defendant’s alcohol consumption, to make out the charge. I do not find these factors sufficient to prove this count beyond a reasonable doubt. There is no real evidence about the cause of the accident from the crown evidence. Mr. Jorg only saw Mr. Butler’s car coming an instant before the impact and Miss McMahon not at all.

The crown led no evidence at all of any physical signs left at the scene explaining how the collision had taken place. Mr. Butler’s distracting white car could have been there, and although the two vehicles he hit had been stopped at the red light for some time, neither driver could say for exactly how long. The evidence does not make out this count beyond a reasonable doubt and that count is dismissed. The impaired driving count is more problematic for this defendant. Clearly, all three officers smelled an odour of alcohol, not beer, on the defendant’s breath.

Beyond this, however, the physical signs of impairment, save for his eyes, could as clearly be related to the effects of the car accident as the effects of alcohol, a factor making the need to test the defendant’s blood alcohol concentration all the more important. I repeat, the defendant, a person with a significant medical history, albeit perhaps not as dramatic as Mr. Butler would have me believe, had just had a moderately severe motor vehicle accident where there had been a partial air bag deployment.

Constable McGee, first on the scene, was worried that the driver’s side air bag might fire after the fact, and kept the defendant out of the car for that reason. Constable McGee does not himself doubt that at least part of Mr. Butler’s subsequent medical episode at the station was a genuine medical emergency, although it was apparent from the video and from Constable Smith’s evidence that some attending the defendant felt he was putting on

an act. I add to this the sincere and apparently credible evidence of Mr. Sago and Ms Butler as to the defendant’s apparent lack of impairment, and conclude that it would be unsafe to find that the signs of impairment cited by the crown are signs of impairment by alcohol of this defendant’s ability to drive a motor vehicle, such that the charge may be proven beyond a reasonable doubt. The impaired driving count, therefore, is also dismissed.

Much of what I have observed with regard to the defendant’s sign of impairment bears on the final count of failing to provide a proper sample for analysis by an approved instrument. The defendant had some effect from the accident and was in some degree of pain, judging by the video evidence. The defendant’s evidence of what happened during the breath test process is hazy and I note, the defendant’s version of what Constable Roberts did and said was never put to that officer in cross-examination.

The defendant is a very poor witness on the particulars of the attempted breath test, other than as to his general level of pain. For example, even when given the option of saying that he did not recall if Constable Roberts told him how hard to blow, the defendant insisted, after very sober thought, that the officer had never done so, although in his earlier evidence, he described being told to blow up a balloon when he was blowing into the device. Notably, when not confronted with an imminent request to provide a breath sample, the defendant’s demeanour, conversation and breathing was noted to be normal.

Only when physically presented with the device to provide his sample did the defendant instantly and inexplicably become incapable of breathing. On the events surrounding the breath test, the defendant’s credibility is not assisted by Mr. Sago or Ms Butler, but rather stands on shaky legs alone. Clearly, given the defendant’s repeated evidence as to his fuzzy recall, I have to prefer the evidence of Constable Roberts over that of the defendant on the critical events that took place during the breath test process. Clearly there were, as the officer testified, seven attempts and more than one caution. Mr.

Butler testified that there were but two attempts and even then, on the second attempt, Constable Roberts never let him try to blow, believing that Mr. Butler was instead pushing the mouthpiece away with his tongue, when, as Mr. Butler described it, he was just licking his lips. On the single attempt, therefore, by his evidence, Mr. Butler testified that obviously he was trying his best, but just had no breath available at all. Further, he insisted that throughout he was still strapped flat on a backboard and could not, therefore, have been at the 45 degree angle sitting up as described by Officer Roberts.

Indeed, Constable Roberts’ evidence was that the angle that Mr. Butler was sitting at was ideal given the position of the approved instrument such that Mr. Butler did not even need to move his head to take the mouthpiece into his mouth and provide the sample. When he did take the mouthpiece into his mouth to provide the sample, by the evidence of the qualified technician, the defendant did not exhale at all, not even a little bit. When not seeking a sample from the defendant, Officer Roberts observed that the defendant’s breathing was quite normal.

Here, I’m not presented with a defendant who, presented with the mouthpiece refuses to provide a sample, nor is this a case where air is blown into the instrument but is insufficient for analysis. Rather, the defendant, able to breathe and thus sustain his life before, during

and after his hospital visit, simply does not exhale at all. In answer to his clear failure to provide the required sample, the defendant’s excuse is that he obviously tried once, but a floating rib diagnosed once by his chiropractor must have interfered with his breathing such that he could not provided the demanded sample on that occasion. With respect, the defendant is simply unbelievable in this assertion.

For example, as stated earlier, his recall of the events of this afternoon and evening was very poor, to the point where, by his own admission, he could not tell whether he was testifying as to what he recalled or what he saw on the video or what he heard from other witnesses. Second, he was unshaken in his evidence on points that are clearly wrong, such as being continually on a backboard and never able to sit up to give a sample, and he was undoubtedly given more than one try to blow into the device. Indeed, Mr.

Butler seemed uncertain whether to cast his evidence against the assertion that he didn’t blow at all, or that he tried to blow once but just couldn’t and his second and final try was angrily stopped by Constable Roberts. Constable Roberts, as previously described, never had this incident put to him in his evidence. Third, the defendant had chatted without problem with the nurse when being brought into the breath room, and had spoken at length to the duty counsel without apparent complaint or inability to speak.

Further, the defendant’s credibility is undoubtedly affected by, what I find to be, his obvious attempt to avoid providing blood or urine samples for medical purposes. Mr. Butler was in the hospital at his request, after having had a car accident. The attending doctor ordered blood and urine analysis and the defendant was, he said, in terrible pain but, in fact, he declined to cooperate with the medical treatment he himself sought. Why? He says because they were only going to check his blood sugar and after all, he wasn’t a diabetic, therefore they didn’t need any of his blood or urine. This is just not credible.

The real reason he declined the samples, I conclude, is because he was not as sanguine as to his feared blood alcohol concentration as he would have me believe, and feared that any blood or urine sample might be used against him later. Mr. Butler admitted that he knows how to provide an approved screening device sample since, on three occasions before, he has provided those samples. In spite of his protests of careful avoidance of drinking and driving, it is clear that the defendant is not nearly as careful as he thinks.

His wife wondered if he was okay to drive, by his evidence, that day after exiting the bar and often drives him home. Ms Butler’s evidence is that the defendant usually knows, usually knows , when he’s had too much to drink. Mr. Butler’s job, as he said, basically requires a driver’s licence. These all combine to suggest that when he was about to be tested, the defendant pondered what would happen if he was over the legal limit and I accept, took the mouthpiece into his mouth and simply failed to exhale at all.

In that act he made out the offence because he did not try and fail to give a suitable sample of his breath for analysis, he didn’t try at all. Notably, the defendant was discharged from hospital without any treatment or medication at all. After the fact, his doctor, seen three days later, also described no treatment for any accident related injury but did say he could continue to wear the collar that Ms Butler had purchased. When being processed on the criminal charge soon after the failure to provide the breath sample, the defendant was again seen to be breathing normally, and was cooperative.

His breathing only troubled him when he was expected to breathe into the approved instrument. On the last count, I don’t believe the defendant’s evidence nor does it raise a reasonable doubt in my mind. Rather, I accept the evidence of Constable Roberts who was dispassionate, had not been drinking, and was recording his observations as they happened. Most particularly, at no time did the officer see any condensation in the clear, plastic mouthpiece, when the defendant was supposedly trying to exhale his breath through that mouthpiece to provide the required breath sample. The defendant simply held his breath.

The crown has proven the final count beyond a reasonable doubt and the defendant is found guilty on that count.

. . . Information No. 10-1236 Citation: R. v. Butler , 2011 ONCJ 654 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. CHARLES BUTLER R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE B. PUGSLEY on November 8, 2011, at ORANGEVILLE, Ontario APPEARANCES: L. MARCON Counsel for the Crown A. WAINWRIGHT Counsel for C. Butler