R. v. Di Battista, 2011 ONCJ 426

COURT FILE No.: Cambridge 4461 999 10 1161 00 DATE: 2010·09·24 Citation: R. v. Di Battista, 2011 ONCJ 426 ONTARIO COURT OF JUSTICE BETWEEN: R. — AND — Renato Di Battista Before Justice of the Peace M A Cuthbertson Heard on 1 April 2011 Reasons for Judgment released on 5 August 2011 Charge: Careless Driving, s. 130 Highway Traffic Act Cases cited: R. v. Beauchamp, (ON CA), [1952] O.J. No. 495 Statutes cited: Highway Traffic Act, s. 130 R.

Cotter ........................................................................................................... for the prosecution The defendant Renato Di Battista…………………………………………………….. on his own behalf JUSTICE OF THE PEACE M A CUTHBERTSON: 1: THE BACKGROUND [1] On 24 September 2010 at about 8:15 PM, Ontario Provincial Police Officer Sara Havekes while on routine patrolreceived a call concerning an eastbound vehicle driving slowly and erratically on the 401, in the Highway 97 area. The officer havingbeen provided the make, model and licence plate of the vehicle checked where the owner lived.

Based on a Guelph address and as shewas some distance away from the reported location of the vehicle, she decided to try to intercept the vehicle on the Highway 24, whichwas a logical route for the driver to travel from the 401 to Guelph. Officer Havekes was successful in intercepting and stopping thevehicle on Highway 24 just outside Cambridge, at about 8:38 PM. [2] Mr Renato Di Battista acknowledged he had been in London that day. He did travel on the eastbound 401 to get toHighway 24 where he exited. He agreed it was his vehicle that the officer stopped on Highway 24. 2: THE LAW [3]

Section 130 of the Highway Traffic Act (HTA) of Ontario states: Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attentionor without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 andnot more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permitmay be suspended for a period of not more than two years.

3: THE EVIDENCE 3.1 The Evidence of Officer Havekes [ 4 ] The officer testified she observed the motor vehicle weaving badly or drifting between the two northbound lanes of Highway 24. Essentially it was half in one lane and half in the other. The car was travelling at approximately 50 kilometres per hour (kph) while in a 60 kph zone and continued to do so when it passed into a 80 kph zone. [ 5 ] Three or four vehicles were some distance behind the vehicle and unable to safely overtake or pass.

The officer positioned her cruiser between the other vehicles and the slow moving vehicle but stayed back about 6 to 8 cruiser lengths. She followed this car for about 1 ½ to 2 kilometres. [ 6 ] As the vehicle approached Maple Grove Rd, the traffic light turned from amber to red. The vehicle continued to weave and finally stopped on an angle straddling both of the northbound lanes. When the light turned green, the vehicle remained motionless with the brake lights still fully lit.

After 6 to 8 seconds the vehicle slowly accelerated through the intersection but continued to straddle the broken white lane separating the two northbound lanes. [ 7 ] Officer Havekes then activated her emergency lights and the vehicle slowly pulled onto the shoulder of the roadway and stopped. She observed vomit covering the front compartment of the vehicle, including both the driver’s and passenger’s side. Vomit also covered the driver’s face and clothing. The odour was overwhelming. [ 8 ] The officer also observed an ignition interlock device installed in the vehicle.

Once she spoke to the driver in the fresh air outside of the vehicle she was able to satisfy herself that he had not consumed alcohol that evening. Mr Di Battista was the lone occupant and driver. He identified himself with a valid Ontario driver’s licence with photo ID. [ 9 ] The officer indicated Mr Battista made two statements to her which this Court found to have been made voluntarily. While sitting in the back of the cruiser, he stated to the officer the reason he took ill as “It must have been something I ate”.

He then also stated “I didn’t want to stop so I was trying to clean myself off while driving, I just wanted to get home”. 3.2 The Evidence of Mr Di Battista [ 10 ] Mr Di Battista testified he became violently ill while on the 401 near Woodstock, after eating while in London. He vomited several times while driving. He expressed concern that had he stopped and shut off the vehicle and got out of the car when ill, he would have been unable to re-start it.

There was vomit inside and around the tube of the ignition interlock device and he would not have been able to blow into it as required to restart the vehicle. [ 11 ] He indicated he was weaving only slightly on the roadway, was travelling at most only 10 kph less than the speed limit and did not recall waiting several seconds after the traffic light turned green. As he was driving, the device beeped thereby demanding a breath sample.

He indicated the slight weaving was a result of him trying to clean himself, the windshield and the ignition interlock device so he could provide a breath sample. 4: ISSUES BEFORE THE COURT [ 12 ] The following issues require analysis: 4.1 Were the witnesses credible? 4.2 What is required of a driver with an ignition interlock device affixed to their vehicle? 4.3 Did Mr Di Battista drive without due care and attention or without reasonable consideration for other persons using the highway? 5: ANALYSIS 5.1 Were the witnesses credible? [ 13 ] Officer Havekes had a clear recollection of the events and her memory was aided by her notes made contemporaneously.

She was well positioned to observe the vehicle for approximately 2 kilometres before she stopped it. Her evidence was provided without partiality. It was unshaken in cross-examination. In my view, her evidence was an honest attempt to assist the Court. I find her to be a credible witness and her evidence to be trustworthy. [ 14 ] Mr Di Battista had a recollection of the events but his memory was not aided by notes. He was however suffering at the time of the events from being violently ill and was thusly pre-occupied.

This affected his specific memory of key events surrounding his actual pattern of driving on the highways. Otherwise, his evidence was consistent throughout. He made an impartial attempt to assist the Court with honest evidence. I find him not to be credible and his testimony not to be trustworthy on the issue of his erratic driving.

5.2 What is required of a driver with an ignition interlock device affixed to their vehicle? [15] Mr Di Battista provided the Court with his understanding of what he was obligated to do when the device requested abreath sample when he was driving. He indicated he had taken a course on how to properly use the device.

He stated: …you do not need to pull over to breathe into it, that’s impossible, you can’t always pull over, you need to do it while driving, you haveto blow into [it] while driving… NB: The word [it] was added to provide context. [16] The User Guide for the WR3 Alcohol Interlock device which was affixed to Mr Di Battista’s car was tendered as anexhibit. Under the heading of ‘Running retests’ (page 6), the guide describes the procedure when the device, at random intervals,requests the driver to blow into the device’s mouthpiece so it may test the driver’s breath for the presence of alcohol. It states: 1.

The handset beeps and displays Retest. 2. Do not provide a breath test while the vehicle is in motion. The interlock provides sufficient time for you to stop in a safelocation. 3. Provide a breath sample and observe the display message. [17] Mister Di Battista was incorrect in his understanding of what actions he was required to take when the device requested abreath sample. The user guide specifies he was required to pull over. 5.3 Did Mr Di Battista drive without due care and attention or without reasonable consideration for other persons usingthe highway? [18] The Ontario Court of Appeal in R. v.

Beauchamp, (ON CA), [1952] O.J. No. 495 set out standards forthe offence of careless driving. In paragraph 18, the Court held: The standard of care and skill to be applied has been long established and is not that of perfection. It is, I think, correctly stated inMazengarb, op cit., at pp. 176-7, as follows: • "The law does not require of any driver that he should exhibit perfect nerve and presence of mind, enabling him to do the best thingpossible.' It does not expect men to be more than ordinary men.

Drivers of vehicles cannot be required to regulate their driving as if inconstant fear that other drivers who are under observation, and apparently acting reasonably and properly, may possibly act at a criticalmoment in disregard of the safety of themselves and other users of the road. • "But the law does insist upon a reasonable amount of skill in the handling of a vehicle which is a potential source of danger to otherusers of the road. ...

The question always is What would an ordinary prudent person in the position of the plaintiff have done in relationto the event complained of?'" (Pollock on Torts uses the term "average man".) In paragraph 19, the Court stated: It must also be borne in mind that the test, where an accident has occurred, is not whether, if the accused had used greater care or skill,the accident would not have happened.

It is whether it is proved beyond reasonable doubt that this accused, in the light of existingcircumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care andattention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in thecircumstances.

The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legalstandard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factualstandard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably beexpected, and any other conditions that ordinary prudent drivers would take into consideration. It is a question of fact, depending on thecircumstances in each case.

The Court continued in paragraph 21: There is a further important element that must also be considered, namely, that the conduct must be of such a nature that it can beconsidered a breach of duty to the public and deserving of punishment. [19] To apply Beauchamp to the matter at bar, this Court must consider whether the actions of Mr Di Battista were those of an‘ordinary prudent driver’ and whether he exercised the ‘care owing in the circumstances’ to the other users of the highway. [20] I accept Officer Havekes’ testimony that Mr Di Battista was weaving between the lanes while he approached the lights onHighway 24.

I accept her evidence that he straddled the broken white line between the two northbound lanes as he slowly pulled awayfrom the traffic lights at Maple Grove Rd. I accept the officer’s evidence that his speed was 50 kph, in both the 60 and 80 kph zones. Iaccept as fact that Mr Di Battista was very slow to move his vehicle when the traffic light at Maple Grove Rd turned to green. Clearly hewas not focussed on the task of observing the traffic signals and reacting accordingly.

I do accept his evidence that he had been violentlyill and was attempting to clean himself and the interlock device while he was being observed by the officer. His erratic and slow drivingwas a direct result of these circumstances. He was focussed on his own condition and the interlock device not his driving. [21] The officer testified these actions all impeded the other drivers behind him on the roadway. They could not pass his slowmoving vehicle. Had they attempted to do so, there was a substantial risk that Mr Di Battista’s vehicle would have struck theirs.

I acceptthis testimony as fact. [22] In my view, Mr Di Battista should not have continued driving while violently ill. An ordinarily prudent driver would have

pulled over to the side of the road either to wait until the bout of vomiting passed or to wait for police and/or medical assistance. [ 23 ] While this Court has sympathy for his plight of a sudden violent bout of illness, by choosing to continue to drive and to vomit within the vehicle, he imprudently created the situation where the interlock device was covered in vomit. This created concern on his part that he would be unable to blow into when it made a breath sample demand, hence his efforts to clean the device. He certainly could have pulled off the road and stopped to clean off the interlock device.

In any event, he was required to pull over before providing a breath sample to the interlock device. There was no requirement that he turn off his vehicle when stopped. The interlock device would have continued to operate properly with the engine running but the vehicle stopped. This is obvious from the directions set out in the User Guide, as noted above. [ 24 ] There was no evidence that a breath sample demand was made by the interlock device or that he vomited when he was being followed by the officer.

However, as a result of his earlier violent illness and his attempts to clean both the interlock device and himself, I am satisfied his driving was erratic while he was under Officer Havekes’ observation. 6: DECISION [ 25 ] I conclude he was driving without due care and attention and acted without reasonable consideration for other persons using the highway. [ 26 ] I further conclude his conduct was ‘of such a nature that it can be considered a breach of duty to the public and deserving of punishment’. [ 27 ] A conviction will be registered. Released: 5 August 2011 Signed: “Justice of the Peace M A Cuthbertson”