R v Yeo, 2023 NSPC 66

PROVINCIAL COURT OF NOVA SCOTIA Citation: R v Yeo , 2023 NSPC 66 Date: 20231117 Docket: see chart below Registry: Dartmouth Between: His Majesty the King v.

Arnold Bruce Yeo Judge: The Honourable Judge Theodore Tax Heard: December 4, 2019; December 18, 2019; October 22, 2020; December 2, 2020; January 5, 2021; January 6, 2021; January 12, 2021; January 28, 2021; March 15, 2021; March 16, 2021; March 17, 2021; March 18, 2021; June 29, 2021; October 19, 2021; December 15, 2021; January 14, 2022; May 3, 2022; June 27, 2022; December 15, 2022; June 15, 2023, and July 20, 2023, in Dartmouth, Nova Scotia Dockets: 8245364, 8245365, 8245366, 8245367, 8245368 Decision: November 17, 2023 Charge: Section 255(2)x4 & 255(2.1) of the Criminal Code of Canada Counsel: Sarah Lane, for the Public Prosecution Service of Nova Scotia Victor Goldberg, K.C., for the Defence By the Court: [ 1 ] On Sunday, June 10, 2018, Mr.

Arnold Bruce Yeo was operating his car on Nova Scotia Highway 102, between exits 5 and 6, in a southbound direction towards Halifax/Dartmouth just after passing the exit to the Halifax International Airport. Around 12:15 PM, his vehicle suddenly went off the passing lane of the southbound portion of the divided highway, onto the gravel shoulder and then crossed through the centre grassy median, became airborne and began rolling in a southerly direction on the northbound portion of the divided highway. Mr. Yeo’s car collided with several vehicles proceeding in a northerly direction on that side of Highway 102.

The collisions caused injuries to several people in those vehicles. [ 2 ] Mr. Arnold Bruce Yeo was subsequently charged with four counts contrary to section 255(2) of the Criminal Code that he unlawfully had care or control of his motor vehicle while impaired by alcohol or drug and thereby caused bodily harm to four named individuals. Mr.

Yeo also faces a fifth charge that he had care or control of a motor vehicle after having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 mg of alcohol in 100 ml of blood and did cause an accident which resulted in bodily harm contrary to section 255(2.1) of the Criminal Code . [ 3 ] The offences are alleged to have occurred at or near Goffs, Nova Scotia, on or about June 10, 2018. The five charges before the court were contained in an Information which was sworn on July 19, 2018. Mr.

Yeo, through his counsel, made his first appearance in court in relation to these charges on July 25, 2018, and at that time, the Crown indicated that they were proceeding by indictment.

Introduction and Brief Procedural History [ 4 ] On February 25, 2019, Mr. Yeo, through his counsel, elected to proceed in the Provincial Court and pled not guilty to all five charges. Based upon the information provided at that time, the Court scheduled a total of four days for the hearing of the trial on December 3, 4, 10 and 17, 2019. A pre-trial conference was scheduled to be held with the parties on July 3, 2019. [ 5 ] During the pre-trial conference of July 3, 2019, the Crown Attorney advised that, unless certain agreements were made with Defence Counsel, they may be calling as many as 22 witnesses.

Defence Counsel indicated that he was still examining the issue as to whether there would be any Charter applications made prior to or during the trial itself. The Crown Attorney advised the Court that they would be calling an expert relating to extrapolation evidence and Defence Counsel advised the Court that he may be calling two expert witnesses.

The parties estimated that four days would be needed for the trial and the trial was scheduled to proceed on December 4, 10, 17 and 18, 2019. [ 6 ] After a couple of status dates to determine whether there were agreements to narrow the number of witnesses or issues in the trial and to determine whether additional or alternative dates for the trial might be required, Defence Counsel served notice on November 8, 2019, that he would be making a Charter application pursuant to sections 7 , 8 , 9 and 10(

b) of the Canadian Charter of Rights and Freedoms . The notice alleged that there had been breaches of Mr. Yeo’s Charter rights and that any evidence of the Approved Screening Device (“ASD”) demand and any statements made by Mr. Yeo to a person in authority as well as any breathalyzer results should be excluded based upon the analysis in relation to section 24(2) of the Charter , as outlined in R. v. Grant , 2009 SCC 32 . [ 7 ] Given the timing of that Charter application, the voir dire to determine whether Mr. Yeo’s

section 8 Charter right to be secure against unreasonable search and seizure had been violated, had to be heard during two days of the originally scheduled four days for the trial itself. The only witness called on the Charter voir dire was Const. Grant Thomas, who was the police officer that had made the ASD demand for Mr. Yeo to provide a sample of his breath into that approved screening device.

The parties had also agreed that photographs filed as Exhibit 1 and 2 for the purposes of the voir dire could be tendered by agreement without the necessity of calling the police officers who had taken those photographs. [ 8 ] Defence Counsel exercised his right to have the Charter voir dire heard as a stand-alone application in order to have the Court’s Charter decision on whether Mr.

Yeo’s Charter rights had been violated and whether any evidence obtained would be excluded pursuant to section 24(2) of the Charter , prior to making further decisions with respect to the calling of defence evidence. [ 9 ] The evidence on the Charter voir dire was heard on December 4, 2019, and the parties made their oral submissions on that Charter Application on December 18, 2019. At the outset of the voir dire , Defence Counsel stated that the key issue on the Charter application was in relation to the matters leading up to the decision of Const. Thomas to make an ASD demand pursuant to section 254(2)(

b) of the Code. The Court reserved its decision until March 31, 2020, and four additional dates for trial were scheduled for late April and early May 2020. [ 10 ] Unfortunately, in mid-March 2020, a global Covid 19 pandemic was declared by the World Health Organization and shortly thereafter, the Canadian and Nova Scotia public health officials and governments declared a public health state of emergency to control the spread of that virus. As a result, the scheduled trial dates for April and May 2020 were postponed. On June 23, 2020, the parties appeared virtually by telephone and October 22, 2020, was scheduled for the

section 8 Charter voir dire decision to be rendered. In addition, the Court rescheduled the originally estimated four days for the trial proper on December 2, 2020, as well as January 5, 6 and 12, 2021. [ 11 ] On October 22, 2020, the Court provided its oral Charter decision, based upon the evidence heard and exhibits filed during the Charter voir dire , that Const. Thomas honestly held a subjective belief which was found to be objectively reasonable. In those circumstances, the Court concluded that he had formed the required “reasonable grounds to suspect” to make an ASD demand pursuant to section 254(2) (

b) of the Criminal Code and concluded that Mr. Yeo’s

section 8 Charter right to be secure against unreasonable search or seizure had not been violated. [ 12 ] Following the Court’s Charter voir dire decision, the trial evidence called by the Crown was heard on December 2, 2020, and on January 5, 6, 12, and concluded on January 28, 2021. Defence Counsel called evidence on March 15, 16, 17, and 18, 2021, December 15, 2021, May 3, 2022, and Defence Counsel closed his case on July 27, 2022. The Crown called rebuttal evidence on November 21, 2022. [ 13 ] At the conclusion of the trial evidence, but before counsel made any closing submissions on the trial proper, Defence Counsel filed a Jordan

section 11(

b) Charter application that there had been an unreasonable delay in this matter. On December 13, 2022, the parties made their oral submissions on that Jordan application. The decision of the Court denying the Jordan

section 11(

b) Charter unreasonable delay application was rendered on February 1, 2023. The details of the procedural history of this trial and the Court’s decision with respect to Jordan application are set out in R. v. Yeo , 2023 NSPC 11 . [ 14 ] Finally, by way of introduction, the sections of the Criminal Code under which Mr. Yeo was charged have since been repealed by Parliament and were replaced by

section 320.14(2) of the Criminal Code . Those amendments came into force on December 18, 2018. The parties proceeded on the basis of the legislation and the law in effect with respect to that legislation as of June 10, 2018. [ 15 ] In addition, the defence made a series of Admissions , which were filed as Exhibit 1 in the trial and dispensed with proof of the injuries alleged by the Crown.

The documents contained in Exhibit 1 included medical documents and transcripts of audio statements made by Bernard and Sherry MacDonald, Abdulmajeed Faisal, Michelle Robichaud, Josh Brooking, Ronald Hiltz, Chris McQuaid, NaDena Norris, Jeff Pickrem and a series of photographs taken by Const. Thomas and the photographs taken by Sergeant Morrison.

However, it is important to note that all of those admissions were made by the defence without admitting causation. [ 16 ] Some of those statements and medical records were entered in those agreed facts to establish “bodily harm” in relation to the named individuals in the first four counts of the Information before the court. Statements were also admitted by individuals who had provided information to the police relating to the circumstances immediately before and/or just after the collisions occurred. As a result

of the filing of the Admissions in Exhibit 1, the parties had agreed that it would not be necessary to call several witnesses to testify during the trial. [ 17 ] The Admissions also confirmed that the identity of Mr. Yeo as the accused person was not in issue. Moreover, by virtue of the facts and circumstances in those agreed facts, it is evident that the date and jurisdiction in which the incident occurred were not contested.

Positions of the Parties: [ 18 ] At the outset of his submissions, Defence Counsel stated that the evidence established that, shortly after 12:00 o’clock noon on June 10, 2018, there was a serious accident on Highway 102, near Goff’s, Nova Scotia, which involved a vehicle being operated by Mr. Yeo. Mr. Yeo was subsequently charged with four counts contrary to s. 255(2) of the Criminal Code , which alleged that he “did unlawfully have care or control of a motor vehicle, while his ability to operate a motor vehicle was impaired by alcohol or a drug, and did thereby cause bodily harm” to four named individuals. Mr.

Yeo was also charged with an offence contrary to s. 255(2.1) of the Code, which alleged that he, at that time and place, “having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 mg of alcohol in 100 ml of blood, did while having care or control of a motor vehicle, cause an accident resulting in bodily harm.” [ 19 ] Defence Counsel takes issue with the extrapolation evidence provided by the Crown’s expert, Ms. Hackett, and submits that the Crown has not established beyond a reasonable doubt that Mr.

Yeo was, either impaired by the previous consumption of alcohol or that his blood alcohol concentration was over 80 mg of alcohol in 100 ml of blood at the time of the accident on June 10, 2018. [ 20 ] In addition, Defence Counsel submits that, with respect to the bodily harm aspect of the charges before the Court, there is a separate and specific issue that the Crown must establish, beyond a reasonable doubt, namely, the “ cause ” of that bodily harm to the four named individuals.

He submits that the Crown has not established or at the very least, there is reasonable doubt with respect to the separate, but specific issue alleged in the Information that impairment by alcohol or “over 80” element of the charges, were the “cause” of the accident and the bodily harm to the named individuals. [ 21 ] Defence Counsel submits that Mr. Yeo had been suffering from the symptoms of asthma due to cold-like symptoms during that weekend and had frequently used his Ventolin puffer for relief. In the moments before the accident, Mr.

Yeo experienced another asthma attack and a coughing fit and Defence Counsel submits that the evidence established that Mr. Yeo was either reaching for his puffer or had briefly fainted by virtue of the excess coughing, which resulted in a momentary loss of control of the vehicle.

In those moments, the wheels on the driver’s side of his vehicle went off the paved portion of the highway onto the gravel shoulder, and the car went out of control through the grassy median and collided with vehicles proceeding outbound from Halifax on Highway 102. [ 22 ] During his submissions, Defence Counsel noted that this trial involves the offence sections as they were prior to the revisions to the Criminal Code which came into effect in December 2018 and that this is a case where the transitional provisions apply. He referred to the former section 258(1) (

c) of the Criminal Code which created a “presumption of accuracy” and a “presumption of identity” which stated that if , the breath samples were taken not later than two hours after the alleged offence and there was an interval of at least 15 minutes between the samples, the results of the analyses would be conclusive proof of the concentration of alcohol in a person’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed. [ 23 ] However, Defence Counsel submits, and the Crown Attorney does not take issue with the submission that, in the circumstances of this case, the former, so-called “presumption of identity” to also establish the concentration of alcohol at the time of the alleged offence is not available to be relied upon by the Crown as the breath samples were obtained more than two hours after the accident occurred on Highway 102.

As a result, without the Crown being able to rely upon that “presumption of identity,” the parties have called and qualified experts to provide extrapolation opinion evidence with respect to the concentration, if any, of alcohol in Mr. Yeo’s blood at the time of the accident on June 10, 2018. [ 24 ] Furthermore, with respect to the extrapolation expert opinion evidence of Ms. Hackett and the two breath samples themselves, it is the position of the defence that extrapolated opinion evidence is completely inconsistent with Mr. Yeo’s physical and mental status.

In addition, Defence Counsel submits that the expert opinion evidence of Greg Johnstone and Dr. Leblanc casts doubt on the standard of 2100 to 1 as the blood to breath ratio used by the Intox EC/IR II breathalyzer device. Since no actual blood samples were taken from Mr. Yeo and analysed, Defence Counsel submits that the 2100 to 1 blood to breath ratio used by the breathalyzer device, would likely result in a substantial “overestimation” of Mr. Yeo’s blood-alcohol concentration. He points to the opinions of the experts called by the defence, which noted that Mr.

Yeo was in the midst of an asthma attack which would cause his blood pressure to go up and that was compounded by the stress and shock of the accident. [ 25 ] In terms of the essential elements of the offences before the Court, the defence acknowledges that Mr. Yeo was operating a motor vehicle, but they do not admit that he operated it either impaired by alcohol or being over 80 mg of alcohol in 100 ml of blood and that the Crown has the burden of establishing those elements beyond a reasonable doubt.

The defence does not take issue with the “bodily harm” aspect of the charges, which has been admitted as a fact, but they do not admit causation and put the Crown to the strict proof of that essential element of the offence beyond a reasonable doubt. Defence Counsel cited R. v.

Jagoe , 2012 NBCA 72 and R. v, Burdett , 2015 MBQB 69 in support of those propositions, where the court determined that causation of the bodily harm had not been established beyond a reasonable doubt, but the accused was guilty of the included offence of care or control of a motor vehicle with over 80 mg of alcohol in 100 ml of blood. [ 26 ] With respect to the issue of whether the Crown had established that Mr. Yeo was impaired by virtue of the consumption of alcohol, Defence Counsel referred to the case of R. v.

Landes , 1997 CarswellSask 701 at para. 16 , where Justice Klebuc listed the eight common observations or tests listed by police officers or individuals as to whether a person’s ability to operate a motor vehicle was impaired by alcohol. Those common indicia were: (1) evidence of improper or abnormal driving, (2) presence of bloodshot or watery eyes, (3) presence of a flushed face, (4) odor of an alcohol beverage, (5) slurred speech, (6) lack of coordination and inability to perform physical tests, (7) lack of comprehension, and (8) inappropriate behaviour.

[ 27 ] Although those common indicia are not an exhaustive list, Defence Counsel submits that there was no evidence before the court from any of the witnesses or statements in the Admissions that Mr. Yeo demonstrated any of those common indicia of impairment, prior to driving back to Halifax, on the drive to Halifax or during any interactions with police officers at the roadside or at police station. There was no evidence or reports of any improper driving on the highway or any odour of alcohol on his breath despite a close interaction with Const. Thomas. There was no evidence of Mr.

Yeo having any slurred speech or any lack of coordination, staggering etc. and no problem with any fine or gross motor skills as the evidence established that Mr. Yeo chopped vegetables, cut steak, cracked eggs and cooked breakfast that morning. Finally, there was no lack of comprehension of what Mr. Yeo was being asked or stated and no improper behaviour was observed by the police or by the witness who has known Mr. Yeo for over 20 years. [ 28 ] It is the position of the defence that the “Fail” result on the ASD is not proof of impairment, it simply provides grounds for a police officer to make a breath demand.

Given the lack of any of those normal indicia of impairment, Mr. Yeo’s physical and mental state simply does not “jive” with the extrapolated opinion evidence presented by the Crown that Mr. Yeo was 80 mg of alcohol in 100 ml of blood at the time of the accident. [ 29 ] Coming back to the point which had been raised earlier by Defence Counsel with respect to this being a transitional case given the significant amendments respecting offences in relation to conveyances which came into effect in the Criminal Code as of December 18, 2018.

It was noted by Defence Counsel and the Crown Attorney agreed that section 32(2) of the Act to Amend the Criminal Code stipulated that certain provisions under

section 320.31 do apply retroactively to this case. Section 32(2) of the Amending Act read as follows: 32(2) Subsection 320.31(1) of the Criminal Code , as enacted by

section 15 of the [ Amending Act ] applies to the trial of an accused that is commenced on or after the day on which that

section 15 comes into force if the sample or samples to which the trial relates were taken before that day.” [ 30 ] Defence Counsel pointed out that, if the criteria for two suitable samples of breath were provided for analyses by an Approved Instrument, which required a qualified technician to conduct system blank test and that the calibration check was within 10% of the target value of the alcohol standard, there was an interval of 15 minutes between the times when the samples were taken and the results of the analyses were rounded down to the nearest multiple of 10 mg but did not differ more than 20 mg of alcohol, then

section 320.31(1) of the Code would only determine that the lower of the two readings, if they were different, would be conclusive proof of the person’s blood- alcohol concentration at the time when the analyses were made. [ 31 ] It is the position of the defence that the impact of that transitional provision is that if those criteria were met, then the analyses are only conclusive proof of the person’s blood-alcohol concentration at the time when the analyses were made.

In other words, Parliament, through that transitional provision has maintained the so-called “presumption of accuracy,” but not the so-called “presumption of identity.” The legislation did not stipulate that the analyses were, as stated in the former section 258(1)(

c) of the Code to be identical to the person’s blood-alcohol concentration when the offence was alleged to have occurred. [ 32 ] In the absence of the “presumption of identity,” Defence Counsel submits that the Crown is required to establish, beyond a reasonable doubt, through extrapolation opinion evidence, that Mr. Yeo’s blood-alcohol concentration was over 80 mg of alcohol in 100 ml of blood, at the time of the accident. It is the position of the defence that, considering Ms.

Hackett’s extrapolations of very high blood alcohol concentrations and her opinion relating to expected symptoms of an “average social drinker” at different blood-alcohol concentrations, they are totally inconsistent with all of the activities that Mr. Yeo undertook prior to the accident. [ 33 ] Defence Counsel submits that Mr. Yeo’s diagnosis of asthma, which the Crown Attorney confirmed that they were not contesting, may have played a significant role in the actual causation of the accident. Defence Counsel pointed to the opinion evidence of Dr.

Leblanc that asthmatics who are in the midst of a vigorous coughing fit, may temporarily lose consciousness, which he referred to as a “cough induced syncope” and he added that it is well-established in medical literature and that he has observed in his own patients. In addition, Mr. Yeo’s heightened usage of the Ventolin puffer prior to the accident, in Dr. Leblanc’s opinion evidence may have increased his gas transfer rate which may have then resulted in an “overstated” blood-alcohol concentration when Mr.

Yeo provided breath samples for analyses by the breathalyzer device. [ 34 ] Defence Counsel also submitted that the expert opinion evidence of Greg Johnstone raises a reasonable doubt with respect to the accuracy of Ms. Hackett’s opinion evidence and the very high extrapolations in relation to Mr. Yeo’s blood alcohol concentrations, which was based upon an assumption that Mr. Yeo was a “social drinker.” Mr. Johnstone had questioned the reliability of Ms. Hackett’s opinion as it did not consider the very real medical and drug related aspects of Mr.

Yeo’s condition and their contribution to the accident. [ 35 ] Defence Counsel also pointed out that, in Mr. Johnstone’s opinion, the blood to breath ratio has been set as a standard 2100 to 1 ratio, being an indirect measure of alcohol in a person’s blood which does not measure individual differences. He stated that a person’s actual blood to breath ratio may vary on a bell curve from 800-4000 to 1. In addition, Mr. Johnstone pointed out that, in this case, there was no blood sample taken which would have resulted in a specific analysis of Mr. Yeo’s blood-alcohol concentration.

Without a blood sample from him, the presence of alcohol in Mr. Yeo’s body could only be analysed by the indirect means of the breathalyzer device. [ 36 ] In the final analysis, it is the position of the defence that the Crown has not established, beyond a reasonable doubt, that Mr. Yeo was impaired by alcohol and/or that his blood-alcohol concentration was over 80 mg of alcohol at the time of the accident.

Moreover, the Crown has not established, beyond a reasonable doubt, that any impairment by alcohol “caused” the accident which resulted in the bodily harm to the named individuals, in more than a de minimis manner. As a result, Defence Counsel submits that Mr. Yeo should be acquitted of all charges before the Court. [ 37 ] It is the position of the defence that the Crown did not establish, beyond a reasonable doubt, that Mr. Yeo’s prior consumption of alcohol had “caused” the accident on June 10, 2018, and the resultant “bodily harm” to the individuals named in the Information.

In those circumstances, Defence Counsel acknowledges that the Court must still determine whether the included offences of impaired care or control by alcohol and/or over 80 mg of alcohol in 100 ml of blood in the offences, have been established beyond a reasonable doubt. However, looking at the totality of the evidence before the court, Defence Counsel submits that Mr. Yeo should be acquitted of all

charges before the Court. [38] The Crown Attorney submits that they have established, beyond a reasonable doubt, that Mr. Yeo should be found guilty of allfive offences before the Court based upon the totality of the credible and reliable evidence of the police and civilian witnesses, theexhibits, and the expert opinion extrapolation evidence of Ms. Hackett. The Admissions and agreed statement of facts confirmed that thefour named individuals suffered “bodily harm” as a result of the accident which occurred on Highway 102 when Mr.

Yeo’s vehiclewhich had been proceeding southbound towards Halifax collided with vehicles proceeding northbound out of Halifax on June 10, 2018. [39] Given the evidence called by the defence and in particular, the evidence of Mr. Yeo himself, the Court will have to apply theinstructions for triers of fact as outlined by the Supreme Court of Canada in R. v. W.D. The Crown Attorney submits that Mr. Yeo’sevidence certainly raises reliability issues as he candidly stated that his memory of events and times may not be accurate.

In addition, insome cases, since he did not recollect the number of drinks that he had or the time when he went to bed, and he was relying oninformation subsequently provided to him by other people who were with him on the weekend in question. [40] Furthermore, she submits that Mr. Yeo’s evidence that after the amount of alcohol consumed and when he drank alcohol, hestated that he woke up early in the morning and felt “good and sharp,” essentially indicating that he felt no effects from the alcohol.

TheCrown Attorney submits that his statement is not reliable and is hard to reconcile with his other statements that he was experiencing coldsymptoms, asthma attacks, coughing fits, which had all affected his sleep. [41] The Crown Attorney also points out that the defence witness who was present at the cottage for the weekend made nocomment of Mr. Yeo being sick or coughing in the morning when he was preparing food for breakfast. Mr. Morrison did not recall Mr.Yeo having any health issues earlier in the day on the golf course or any issues breathing at the cottage during the evening or the nextmorning.

In addition, he could not comment on the specific amount of alcohol that Mr. Yeo had consumed prior to going to sleep andadded that he did not know when Mr. Yeo went to sleep because he slept in a different area of the cottage. [42] Furthermore, the reliability of Mr. Yeo’s evidence also becomes a significant factor for the opinion evidence of Dr. Leblancand the extrapolation opinion evidence proffered by Mr. Johnstone. She submits that Mr. Johnstone’s extrapolation opinion of Mr.

Yeo’sstated amounts and times of the alcohol consumed by him prior to the accident are entirely inconsistent with the conclusive analyses ofthe second breath sample by the breathalyzer being 160 mg% at 3:29 PM on June 10, 2018. [43] The Crown Attorney submits that the defence experts based their opinions on one unlikely scenario after the other with a viewto questioning the accuracy and reliability of the breathalyzer analyses. Simply put, it is the position of the Crown that Mr.

Yeo’s statedamount of alcohol consumed and the period of time during which alcohol was consumed does not undermine the reliability of thebreathalyzer analyses. She submits that a more logical explanation which would be consistent with the breathalyzer analyses would bethat Mr. Yeo consumed more alcohol over a longer period than he stated, and that he may be a more than a “social drinker” as theexperts had based their extrapolation opinions based on him being an “social drinker.” [44] In terms of the possible scenario put forward by Dr. Leblanc that, just before the accident, Mr.

Yeo may have experienced aparadoxical bronchospasm, she submits that the scenario is not supported by any evidence of Mr. Yeo coughing after the accident, he didnot have to be taken to the hospital, he had no problems speaking with the police officers and he provided suitable samples for analysesby the ASD and the breathalyzer device. In addition, during cross examination, Mr. Yeo confirmed that he had never previously lostconsciousness or become dizzy from the utilization of his puffer.

Therefore, the Crown Attorney submits that the possibility of aparadoxical bronchospasm having been the cause of the accident is an opinion which does not have any evidentiary foundation andsimply amounts to unreliable speculation. [45] In fact, Mr. Yeo stated that he is not sure how the accident occurred, although he did say he was searching for his puffer in themoments before the driver’s side wheels went onto the gravel shoulder.

The Crown Attorney points out that, although no accidentreconstruction was performed by the police, based upon the evidence of the witnesses who were operating their vehicles behind him oron the other side of the highway, they did not see the brakes being applied by Mr.

Yeo or notice any reduction in his speed as he wentthrough the grassy median at a consistent speed then went airborne on the other side of the divided highway and rolled down thehighway colliding with a few vehicles. [46] In terms of the essential elements of the offences before the Court, the Crown Attorney acknowledges that the offence ofimpaired driving causing bodily harm denotes a causal connection between the injury or injuries suffered by others and the drivingconduct of the accused.

She submits that, with respect to the issue of impairment, a clear statement on that essential element wasprovided by the Ontario Court of Appeal in R. v. Bush, 2010 ONCA 554 at para. 47 which held that impairment may be establishedwhere the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), (ON CA), 12 OR (3rd) 90 (ONCA), aff’d (SCC), [1994] 2 SCR 478 (SCC).

Slight impairment to drive relates to a reduced ability in somemeasure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment,and regard for the rules of the road as stated in R. v.

Censoni, 2001 CarswellOnt 4590 at para. 47. [47] Based upon that statement of the essential element, which is also supported by several other authorities cited by the CrownAttorney, she submits that the key aspect of the charges of over 80 or the impaired causing bodily harm is whether the drinking was acause, at least beyond de minimus, of the faulty driving and the bodily harm to the victims.

The cases involving this charge require thecourt to consider the totality of the circumstances and to determine whether the accused’s impairment by alcohol has been proven to be asubstantial, although not necessarily the only cause of the injuries to the victims. So long as it is a contributing cause and somethingmore than de minimus, in her submission, the requisite causal element has been established. [48] In terms of the causation issue, the Crown Attorney points to the evidence of a series of poor decisions having been made byMr. Yeo on the drive back to Halifax from the golf weekend near Pugwash.

Despite having problems with asthma and coughing, evensome momentary dizziness, Mr. Yeo maintained a high speed, according to him, driving 5 km over the speed limit without pulling overto use his puffer. He had repeatedly used the inhaler well beyond the recommended amount according to the Monograph for that inhalerwhich reflected poor judgment. In addition, Mr. Yeo’s use of the puffer while driving without pulling over to the side also reflected poor

judgment, given the way in which the relief must be inhaled. A further example of poor judgment was then placing the puffer on the passenger seat where he had to divert his attention and try to locate and then use his puffer when he felt that he needed to take additional puffs for relief. [ 49 ] The Crown Attorney acknowledges that independent witnesses who were following Mr. Yeo confirmed that there was no weaving on the highway or any poor driving exhibited while they were behind or beside him as he travelled in the passing lane.

Defence Counsel also confirmed with police officers that they had not received any calls that morning in relation to a complaint of a possible impaired driver on the road. However, those aspects must be considered with the totality of the circumstances and when those other issues of poor judgment are considered, it is the Crown’s position that the accident was caused by Mr. Yeo’s actions which demonstrated “some degree of impairment” as mentioned by the Stellato case.

She submits that the Crown is not required to establish, beyond a reasonable doubt that the impairment was a significant or marked departure from what a sober driver may have done in a similar situation. [ 50 ] With respect to the defence submissions that, on the date in question, Mr. Yeo did not exhibit any of the often-cited indicia of impairment, the Crown Attorney points to the expert opinion evidence of Ms. Hackett.

In her opinion, it is certainly possible that some people may not appear to be intoxicated or impaired by the consumption of alcohol but, as a result of the consumption of alcohol their ability to operate a motor vehicle, may be impaired. [ 51 ] With respect to the breathalyzer analyses, the Crown Attorney notes that some experts would say a person’s ability to operate a motor vehicle would be impaired at 50 mg%, but it was certainly Ms. Hackett’s opinion that someone’s ability to perform the complex divided attention tasks of operating a motor vehicle would be impaired at any analyses over 100 mg%.

Even if the Court was to be left in some reasonable doubt as to the possible “overestimation” of Mr. Yeo’s BAC based upon the opinions of Dr. Leblanc and Mr. Johnstone, given the 160 mg% result, on top of the speculation with respect to that possible “overestimation,” it would be highly unlikely that the error factor of the Approved Instrument would so large as to result in the extrapolation of Mr.

Yeo’s BAC being below 80 mg of alcohol in 100 ml of blood at the time of the accident. [ 52 ] With respect to the submissions made by Defence Counsel, the Crown Attorney agrees that, if the Court does not conclude that Mr. Yeo’s BAC was over 80 mg of alcohol and/or his impaired operation of a motor vehicle by virtue of the consumption of alcohol was not greater than a de minimus “ cause” of the accident which occasioned the bodily harm, Mr. Yeo could be acquitted of those charges.

However, in that event, the Court may, in the alternative, convict him of the lesser included offences of having care or control of a motor vehicle with over 80 mg of alcohol in 100 ml of blood or impaired operation of a motor vehicle. [ 53 ] With respect to Dr. Leblanc’s evidence, the Crown Attorney submits that his opinion that the asthma can affect an increased rate of transfer of gases such as oxygen and alcohol between the blood and the lungs, which in his opinion, “could have overestimated” the quantity of alcohol present in the blood, does not have any evidentiary foundation.

Moreover, she points out that Dr. Leblanc’s opinion is qualified by the fact that he stated that asthma is a “variable condition” and he could not determine what Mr. Yeo’s diffusion or rate of gas transfer was or would have been at the time when the breathalyzer test was administered. [ 54 ] Dr. Leblanc also talked about the possibility of a cough induced (or situational) syncope where a patient will lose consciousness after coughing. Once again, the Crown Attorney points out that Dr.

Leblanc stated that, in his opinion, only between 2% and 8% of people with asthma in Nova Scotia have what he would consider to be “severe asthma” as he sees most of the “severe” cases in the province. He also opined that excessive use of Ventolin for a tight chest may create a paradoxical bronchospasm, but it is “uncommon or rare.” During cross-examination, she pointed out that Mr. Yeo had said that he was at the tail end of a cold/flu, which Dr. Leblanc stated was viral and then agreed that it was “unlikely” that Mr.

Yeo would have experienced a “cough induced syncope” at that point. [ 55 ] In addition, the Crown Attorney submits that most of the opinions proffered by Dr. Leblanc, while certainly being within his area of expertise, provide little assistance to the Court in determining the critical factual and legal issues in this case. She points out that many of the opinions expressed by Dr.

Leblanc were significantly qualified by his own statements that they were an “educated theory,” “plausible,” “possible,” that asthma “could have overestimated” the quantity of blood alcohol as measured by the breathalyzer. [ 56 ] Furthermore, with respect to Dr Leblanc’s opinion with respect to the possible “overestimation” of gas transfer, he also qualified his comments that he has not done any work with respect to gas transfer of ethanol in his experience or training.

However, Dr Leblanc added that the gas transfer rate, if elevated, starts at about 20% and for the most severe cases which he sees in Nova Scotia, he has never seen more than a 30 to 40% additional transfer of gas in those asthmatic patients. In those circumstances, the Crown Attorney submits that even if there was that “overestimation” and additional gas transfer of 40%, given the second breathalyzer reading of 160 mg%, Mr.

Yeo’s blood-alcohol concentration (BAC) would still be well over 100 mg% at the time of the accident. [ 57 ] It is the position of the Crown that the expert extrapolation opinion evidence provided by Ms. Hackett is based upon the knowledge of the precise functioning of the specific Approved Instrument (Intox EC/IR II) and the fact that the Instrument is set up to truncate the results down to the “benefit” of the person providing the breath samples.

She notes that her extrapolation is based upon the lower of the two results of the analyses and that the results are rounded down to the lowest 10 mg% by the Approved Instrument. As a result, if the analysis of Mr. Yeo’s breath sample was actually as high as 169 mg%, the Approved Instrument is designed to round that number down to 160 mg%. [ 58 ] Based upon that knowledge of how the Approved Instrument is designed and operates, the Crown Attorney submits that Ms. Hackett addressed the issue of any possible “overestimation” of Mr. Yeo’s BAC as opined by Dr. Leblanc. Without necessarily accepting Dr.

Leblanc’s opinion, Ms. Hackett stated that, even if there was a 30 to 40% overestimation of the BAC, the Approved Instrument is designed to underestimate by almost 20 mg% and, in those circumstances, the difference between the two BAC’s would be 10 to 20 mg% and if that percentage was deducted from the lower of the two breath samples which was 160 mg%, Mr. Yeo’s BAC would still be well over 100 mg per %. [ 59 ] With respect to the reliability of Mr. Yeo’s evidence with respect to the timing and amount of alcohol consumption, the Crown

Attorney submits that there is a significant inconsistency between his evidence and the extrapolations based on that evidence relative to the BAC analysed by the Approved Instrument. She notes that with respect to both extrapolations based upon his drinking, even using different alcohol elimination rates of 10, 20 or 25 mg of alcohol per 100 ml of blood per hour, both experts indicate that at the time of the accident, assuming that he was an “average social drinker” and that his last drink was at 1:30 AM, Ms. Hackett opined that there would be no detectable alcohol and Mr.

Johnstone opined that there would be less than 4mg% at 12:18 PM on June 10, 2018, which would have become 0 mg% at 12:41 PM that day. [ 60 ] Furthermore, both Ms. Hackett and Mr. Johnstone stated that the Approved Instrument (Intox EC/IR II) had functioned properly in producing the results of 170 mg% and the 160 mg% after providing two suitable samples of breath for analysis. Moreover, if based upon Mr. Yeo’s evidence both extrapolations back to 12:18 PM resulted in 0 mg% at that time and there was no evidence of any alcohol having been consumed after the accident, it is a further indication that Mr.

Yeo’s evidence with respect to the timing and amount of alcohol consumed prior to the accident it is unreliable and should not be accepted. [ 61 ] In those circumstances, it is the position of the Crown that Mr. Yeo probably drank more alcohol than he stated for a longer period and he may have been more of a “seasoned” drinker with a greater “tolerance” for alcohol than being a “social” drinker of alcohol as the experts had assumed in their extrapolations. In addition, the Crown Attorney also confirmed with Dr. Leblanc that there is no alcohol in the puffers/inhalers used by Mr.

Yeo for relief from the symptoms of asthma and, in those circumstances, the use of the puffers/inhaler would not have caused a false positive for the detection of alcohol in his breath by the Approved Instrument. In addition, the evidence established that there was no alcohol in the Approved Instrument prior to Mr. Yeo’s breath samples and that he had not consumed any alcohol during the 15 minutes observation period between the breath samples. [ 62 ] Ms. Hackett and Mr.

Johnstone both provided opinions and agreed that a person whose BAC was at 100 mg% would be impaired in their ability to operate a motor vehicle and that some experts might even say there was impairment of the ability to operate a motor vehicle at 50 mg%. In Ms. Hackett’s opinion, a person with a BAC of 170 mg% would be impaired to operate a motor vehicle safely.

In her opinion, the lack of physical indicia of impairment does not necessarily mean that the person did not have some impairment mentally, which would impact their ability to safely operate a motor vehicle, especially, in an urgent situation. [ 63 ] In her closing submissions, the Crown Attorney also pointed out that Dr. Leblanc had discounted the possibility of the accident having caused Mr. Yeo any physiological shock that would have impacted the results of the breath analyses. Dr. Leblanc stated that he could not tell if Mr. Yeo had suffered any physical or physiological shock. On the other hand, in Mr.

Johnstone’s opinion on the extrapolation evidence, he believed that Mr. Yeo experienced physiological shock which then affected the blood alcohol concentration analyses and, as a result, he looked for other possibilities to explain the results of the breath analyses, without considering that Mr. Yeo may have consumed more alcohol for a longer period of time than he stated in his evidence. Therefore, the Crown Attorney submits that Mr. Johnstone’s opinion in this report in relation to this “plausible” explanation for the high BAC readings is speculation at best and was not actually based upon Mr.

Yeo’s trial evidence. [ 64 ] Finally, with respect to the novel argument that asthma and taking salbutamol in an inhaler/puffer significantly impacted the blood-alcohol concentrations as measured by the Approved Instrument, the Crown Attorney submits that there are no reported cases that support that proposition. In addition, she refers to the

article from the Medical Science Law Journal [1991] Vol. 31, No.3 entitled “ The Effect of Salbutamol on Breath Alcohol Testing in Asthmatics , by P.J. Gomm et al filed as Exhibit 12 which concluded, albeit in a limited study, in their Abstract that: “We conclude that the use of salbutamol by asthmatics does not affect the reliability of measurements made by evidential breath alcohol testing devices.

The research was conducted and published by the British Home Office Forensic Science Service. [ 65 ] In the final analysis, the Crown Attorney submits that they have established, beyond a reasonable doubt, that when Mr. Yeo was operating his vehicle and the accident occurred on Highway 102, while his blood-alcohol concentration was well over 80 mg of alcohol in 100 ml of blood, and he should be found guilty of that offence. She also submits that the Crown has also established, beyond a reasonable doubt, that Mr. Yeo’s ability to operate a motor vehicle was impaired by alcohol.

She acknowledges that the Court has to conclude, beyond a reasonable doubt, that the impairment by alcohol was the causation of or causal link to the bodily harm to the named individuals in the Information, beyond a de minimus level.

Summary of the Trial Evidence The Circumstances of the Motor Vehicle Accident – Sunday, June 10, 2018: [ 66 ] The civilian and police witnesses who testified in court in relation to the circumstances of the motor vehicle accident at about 12:18 PM noon, on Sunday, June 10, 2018, on Nova Scotia Highway 102, between Exits 5 and 6, described the day as relatively warm and sunny day, with some scattered white clouds. Sgt.

Lyndon Morrison of the RCMP, who arrived at the scene of the accident at 12:37 PM stated no one mentioned the direction of that the temperature, at that time, was 17 °C and there was a “slight breeze” but no one mentioned the direction of the wind. [ 67 ] Those witnesses stated that, at the time of the accident, shortly after 12:00 noon on June 10, 2018, the conditions on the roadway were clear and dry. There was no precipitation or water on the roadway, nor were there any potholes or other obstructions on the highway.

They also stated that the traffic was steady for a Sunday afternoon in both directions going “outbound” in a northerly direction from Halifax towards the airport as well as on the “inbound” lanes going in a southerly direction towards Halifax. [ 68 ] Photographs contained in Exhibit 1 which were taken shortly after the accident confirmed the witnesses’ evidence that it was a sunny day, blue sky with some high, white scattered clouds and the road surface being clear and dry. Ms.

Tracy Boswell described the driving conditions as she was going “outbound” towards Enfield, Nova Scotia as being “perfect driving conditions.” [ 69 ] The photographs contained in Exhibit 1 as well as the police and civilian witnesses who testified during the trial described the portion of Highway 102 between exits 5 and 6 as being very straight and essentially flat or level with very little, if any, grade or incline in the surface of the roadway.

[ 70 ] Highway 102 is a Nova Scotia 100 Series divided highway with limited access only at identified exits. At the point where the multi-vehicle accident occurred, there are three lanes going in the “outbound” direction towards the airport. On the other side of the grass median, there are two lanes going in the “inbound” direction towards Halifax and Dartmouth. The posted speed limit in the area where this accident occurred is 110 km in both directions. [ 71 ] Cpl. Robert Kellock of the RCMP and Sgt.

Morrison described the scene of the accident by referring to photographs that they had taken of the accident scene and the grass median between the inbound and outbound lanes of Highway 102 between Exits 5A and 6. Those photographs were filed the Admissions , which were filed as Exhibit 1 in the trial. The photographs taken by those two police officers are in Exhibit 1 at Tab #10 and clearly show the vehicles involved in the accident, the highway, and debris on the highway as well as the grass median between the two directions of the divided highway. [ 72 ] In photographs 61 and 62 of Exhibit 1 at Tab # 10, Sgt.

Morrison took pictures of that grassy median and circled the area where Mr. Yeo’s car went off the highway in a southbound direction and crossed through the grassy median and collided with cars proceeding in a northerly direction on Highway 102. Witnesses also described the gravel shoulder on the edges of the paved roadway and the grass median.

They also described the grass median as sloping down to the middle from each side of the divided highway to form a U-shape. [ 73 ] In terms of the width or slope of the grass median between the inbound and outbound sections of Highway 102 between Exits 5 and 6, no witness measured the width of the grass median or estimated the slope. Ms.

Wellwood, who has travelled that highway “often,” estimated that the median might be as much as 30 feet wide, but she freely acknowledged that she was not sure of the actual width despite travelling that highway “often,” and that she could only estimate it’s width. [ 74 ] The civilian witnesses who testified in court and others whose statements and other documents which were filed as Exhibit 1 in the trial, as Admissions , stated that the multi-vehicle collision occurred shortly after noon on June 10, 2018. on the “outbound” lanes of Highway 102.

A black Mazda 6 was being driven in the passing lane of Highway 102 “inbound” going in a southerly direction towards Halifax, went out of control, crossed through the grass median of the divided highway, became airborne, then landed on the “outbound” lanes of Highway 102, rolled several times, and crashed into four “outbound” vehicles. [ 75 ] In the “outbound” lanes of Highway 102, the black Mazda 6 had collided with a white GMC Terrain SUV driven by Mr. Bernie MacDonald with his wife, Sherry MacDonald in the passenger seat, a purple Toyota Highlander driven by Mr.

Abdulmajeed Faisal and a dark blue Mazda 3 driven by Ms. Michelle Robichaud. It also flew over a brown Jeep Liberty driven by Ms. Tracy Boswell with her husband, Kim Walker in the passenger’s seat, causing some damage to her vehicle from the flying debris. [ 76 ] The black Mazda 6 ultimately stopped rolling and landed on its driver’s side, with all four wheels off the ground and the sole occupant of the vehicle being in the driver’s seat.

The exact location and images of where the black Mazda 6 finally came to rest on the “outbound” portion of Highway 102 are clearly shown in photographs #16 and #17 at Tab 10 of Exhibit 1. Photo #1 of Exhibit 3, shows the black Mazda 6, completely demolished, at that point with the roof of the car cut off to extract the driver. The demolished black Mazda 6 is located on the “outbound” pavement of Highway 102, immediately adjacent to a large Provincial highway sign indicating that it is two kilometres to the Exit for the Halifax Robert L Stanfield International Airport. [ 77 ] Const.

Thomas and other police witnesses described arriving at the location where the black Mazda 6 ultimately came to rest on its driver’s side. Since the airbag had deployed and the driver had his seatbelt on, a few witnesses stated that they were able to communicate with the driver of that vehicle to check on his medical condition, but he was not able to extricate himself from the car. As a result, firefighters used the jaws of life to cut the roof off and then remove Mr. Yeo from his car. [ 78 ] Const.

Thomas and a couple of other witnesses stated that gas and other fluids were leaking from the black Mazda 6 on the roadway. Const. Thomas mentioned that the odour of gas was strong around the car. He and other witnesses mentioned, as confirmed by photographs #1 and #2 of Exhibit 3, that firefighters had deployed some absorbent on the highway over those fluids. There are no clear photographs of the black Mazda 6 laying on its driver’s side before the roof was cut off by the firefighters. [ 79 ] Mr. Arnold Bruce Yeo was identified by Const.

Thomas and other police officers as the driver of the demolished black Mazda 6, which was a four-door sedan. Const. Thomas stated that, as part of his investigation which ultimately led to the charges before the Court, he took photographs of the insurance information in Mr. Yeo’s vehicle and his Nova Scotia driver’s licence [see Exhibit 1, tab #10 at photos #4 and #5]. The insurance document confirmed that Mr. Yeo was one of the owners of the “insured vehicle” which was a 2010 Mazda 6 GS. The photo of Mr. Yeo’s Nova Scotia driver’s license [Exhibit 1 at tab #10] had a photo of Mr.

Yeo and stated that his birthdate was March 13, 1958, and that his height was 178 cm. [ 80 ] During the trial, Const. Thomas was asked questions relating to Mr. Yeo’s height and weight and he stated that the driver’s license had indicated that Mr. Yeo’s height was 178 cm and he estimated that Mr. Yeo was about 5’10” tall. In terms of Mr. Yeo’s weight, Const. Thomas said that he had not made any notes about Mr. Yeo’s weight on June 10, 2018, and that he was testifying about two and a half years after the accident, but he estimated that Mr.

Yeo would have been in the range of 170-180 pounds, at that time. [ 81 ] Cpl. Kellock of the RCMP heard a dispatch call at 12:21 PM and arrived at the scene of the accident on Highway 102 at 12:32 PM on June 10, 2018. Other police officers, firefighters and EHS personnel were already there, and he saw Mr. Yeo being extracted from the black Mazda 6 by firefighters. Cpl. Kellock was not close enough to Mr. Yeo to determine if there was any level of impairment, but added that when he saw Mr. Yeo, it was incredible to see that he did not have any visible injuries. Description of the Multi-Vehicle Accident: [ 82 ] Ms.

Shealynn Wellwood was driving her car “inbound” on Highway 102 from Enfield, Nova Scotia, around noon on June 10, 2018. She was travelling in the right-hand lane of the two lanes going in that direction and had just gone past Exit 6 to the airport, when she was passed by a black Mazda, which being driven in the passing lane. After that vehicle passed her, Ms. Wellwood immediately pulled out into the passing lane for “inbound” traffic and proceeded behind that black Mazda 6.

At that point, they were both going between 115 to 120 km/h and she candidly acknowledged that she was “probably too close” as she pulled into the passing lane and began following the black Mazda. She confirmed that the speed limit on the highway at that location is 110 km/h.

[ 83 ] From her position, being only a few car lengths behind the black Mazda, Ms. Wellwood saw that car “drift” to the left and then both of the driver’s side tires went onto the gravel shoulder and began kicking up small stones and dust. She stated that there were no animals, no potholes or any obstructions on the road and that wind was not a problem. The traffic was moving along at a steady pace. [ 84 ] Ms. Wellwood estimated that the driver’s side tires travelled on the gravel shoulder of the highway for about 10 to 15 seconds.

Then, she noticed that the driver who had been leaning to his left as he was driving, straighten up in his seat and then made a quick swerve to the right to try to get his car back onto the paved portion of the highway. [ 85 ] Ms. Wellwood stated on direct examination and confirmed on cross examination that prior to Mr. Yeo’s car drifting onto the shoulder, she had not seen any erratic driving or any weaving on the road.

However, she said that after he tried to “whip back” onto the pavement from the gravel shoulder, the car swerved again to the left and continued down into the grass median and up the slope on the other side of the highway. Ms. Wellwood stated that as the black Mazda went down into and then up out of the grassy median, she observed parts of the car fall off it and added that the “car never slowed down at all.” Then, she saw the black Mazda hit a few cars as it rolled two or three times and ended up on its side. [ 86 ] Ms.

Wellwood had said, on direct examination and confirmed on cross examination, that prior to the driver losing control of the car, the black Mazda had been driving along the highway “fine” and that, according to her, nothing seemed “out of the ordinary.” [ 87 ] Ms. Tracy Boswell was driving a brown Jeep Liberty “outbound” on Highway 102 towards Enfield, around noon on June 10, 2018. At that time, she was travelling in the passing lane closest to the “wide” grassy median between the two directions of traffic.

Near Goffs, Nova Scotia, she and her husband saw a car go down into the grass median from the “inbound” side of highway 102 and start kicking up dust in the median. She thought that the car, which was going through the median directly towards her would stop or slow down, but it never did. [ 88 ] Ms. Boswell stated that Mr. Yeo’s car was still going at the highway speed when it came up the slope of the grass median on the “outbound” lanes of Highway 102 and went into the air. Mr.

Yeo’s car flew over the top of her Jeep and as it did, she clearly saw the undercarriage of the black sedan and then, in her mirror, she saw it rolling down the road behind her. [ 89 ] Ms. Boswell stopped her vehicle and immediately went back to Mr. Yeo’s car which had ended up with the driver’s side on the ground. She asked Mr. Yeo if needed any medical assistance, whether he was having any troubles breathing or if he was bleeding. He said that he had a cut and she advised him to put his hand on it to stop the bleeding.

Once she was satisfied that he did not require immediate medical assistance, she left his car and provided a statement to the police. [ 90 ] Mr. Bernard MacDonald provided a short statement [Exhibit 1 at Tab 1C], which indicated that as he was driving to the airport off on Highway 102, he saw a car driving across the median at a high rate of speed. The car jumped the shoulder and came right at their SUV, in the air. [ 91 ] Ms. Michelle Robichaud provided a short audio statement to the RCMP on June 10, 2018, about a half-hour after the accident.

The transcript of the audio statement was filed in Exhibit 1 at Tab 4A which states that she was on the right side of the highway and all of a sudden, a car on the other side “went really fast into the ditch.” She added that the car became airborne on her side of the highway and smashed into the front side of her car and then hit other cars. [ 92 ] Mr. Josh Brooking, whose information about the accident was contained in a transcript of an audio statement to an RCMP officer which was filed in Exhibit 1 at Tab 5 as part of the Admissions . Mr. Brooking saw Mr.

Yeo’s car go through the grass median and become airborne, going approximately eight to ten feet in the air, and then hit a white SUV. After the rolling car missed his vehicle, Mr. Brooking stopped and immediately went back to check on the people in the cars behind him. He briefly spoke to Mr. Yeo to see if he was okay, and Mr. Yeo said: “yes”. Mr. Brooking did not see anything abnormal but did recall seeing that the driver had a cut on his head. [ 93 ] The transcript of an audio statement of Mr. Ron Hiltz was also contained in Exhibit 1 at Tab 6.

He was travelling “outbound” on Highway 102 when he saw a car proceeding on the “inbound” passing lane, go on to the gravel portion next to the grass median between the lanes of traffic and lose control. He saw the driver “boxing the wheel” to get his tires back onto the pavement, but when those tires hit the pavement, it seemed that the car was pushed back into the grass median. Then, he saw that car, come through the median and go airborne towards the approaching “outbound” traffic. Mr.

Hiltz said that the car was going “a really fast speed” because it became airborne and must have been 10 feet in the air when it came out of the grass median. [ 94 ] Ms. NaDeanna Norris forwarded a letter to Const. Thomas as her witness statement with respect to the June 10, 2018, motor vehicle accident on Highway 102 just past exit 5A. The letter of Ms. Norris was filed as part of Exhibit 1 at Tab 8 as part of the Admissions .

She was travelling north on Highway 102 “outbound” and just past exit 5A, she saw a black Mazda travelling south “inbound” hit the gravel shoulder next to the passing lane, then overcorrect back toward the passing lane, lose control and cross through the median going into the northbound traffic hitting four vehicles just behind her as it rolled down the road. [ 95 ] Ms. Norris, who is an experienced Registered Nurse and immediately pulled over to the side of the highway and ran back to check on the individuals involved in the accident.

She noted that a young lady who had been driving a compact car was out of her vehicle, lucid but screaming in shock and had numerous small lacerations from broken glass. She spoke to a couple of other people who did not require any medical assistance. [ 96 ] The last vehicle that Ms. Norris approached was the black Mazda lying on the driver’s side perpendicular with the road.

When she arrived, she noted several things: there were golf clubs on the ground, “a large can of open beer that was approximately six feet from the front of the overturned car and a cell phone case that was approximately three feet from the beer can.” She retrieved some golfing items from the ditch and placed them next to the back wheel on the driver’s side. The driver was trapped inside. as she and another person tried, unsuccessfully, to open the passenger side door. She did note, however, that the driver was “lucid and able to remove his seatbelt and attempted to crawl up to the passenger door.”

[ 97 ] The final witness statement included in Exhibit 1 at Tab 9 was the transcript of an audio statement of Mr. Jeff Pickrem. He was travelling northbound in the middle lane of three lanes of traffic on Highway 102 between Exit 5A and Exit 6. At that moment, he saw a vehicle proceeding southbound on the other side of the highway, cross through the centre median, come onto the northbound lanes of Highway 102 and collide with four or five vehicles before coming to rest on its side. [ 98 ] Mr. Pickrem stated that the time of the accident was at about 12:10 PM on June 10, 2018.

He works as a tow truck operator and as a Volunteer Fire Chief with the Halifax Regional Fire Department. After seeing the car colliding with several vehicles, he stopped his vehicle, grabbed his portable radio and “called it in requesting RCMP, EHS and fire.” Then, he walked back up the road to check with people and do a “scene assessment” to determine if there were any injuries that needed immediate attention. [ 99 ] Mr. Pickrem was asked about what, if any, contact he had with Mr. Yeo.

He stated that his initial contact was to make sure that the driver was “fine” which he did by “a face-to-face with him through the windshield.” He added that Mr. Yeo was still inside the vehicle, and since they were not able to get him out, he told Mr. Yeo to stay put until the Fire Department arrived.

When asked if he located or observed any items inside the vehicle, he said: “The only thing that was really obstructing my way inside the vehicle was a set of golf clubs at the back window.” He also saw a can of Guinness beer on the road, but “it seemed to be sealed and was split all the way down the side.” [ 100 ] Based upon Mr.

Pickrem’s specific recollection of the time of the accident, which was provided to the police in an audio statement made on June 10, 2018 at 1:21 PM, and when he used his portable radio to call for assistance by the RCMP, EHS and Fire, I find, as a fact, that the time of this multi-vehicle accident would have occurred at about 12:10 PM on June 10, 2018. I find that this timing of the accident is certainly consistent with the other witnesses who had indicated that the accident occurred shortly after noon on June 10, 2018.

Moreover, I find it is also consistent with the information provided by police witnesses relating to the timing of the dispatch call for RCMP members and their arrival at the accident scene. [ 101 ] Sgt. Lyndon Morrison of the RCMP stated that he received a dispatch call to assist at the scene of the accident on Highway 102 at 12:18 PM on June 10, 2018. He arrived at the scene of the accident at 12:37 PM and indicated that he was not the first police officer at that location. He saw a black Mazda on its side, which was leaking gas, and the Fire Department was trying to extract the driver from that vehicle.

He did not speak with Mr. Yeo or any of the injured parties. [ 102 ] Sgt. Morrison stated that he was on scene to supervise the police response, to check with people affected by the accident and to ensure that traffic was detoured around the debris and damaged vehicles on the highway. As he walked along the accident scene, he took photos #36 to #75, in Exhibit 1 at Tab 10 of the “chaotic scene” with debris all over the highway and the vehicles heavily damaged when the black Mazda collided with them.

In particular, he pointed out that photos #61 and #62, are images of the location where the black Mazda went off the “inbound” passing lane of Highway 102, then tore up the grass in the grass median and its tires left a trail of dirt marks as it crossed diagonally through the grass median and then up onto the “outbound” lanes of Highway 102. [ 103 ] Sgt. Morrison pointed out that, when he arrived on scene, the Fire Department was already there and that it took some time for the firefighters to cut the roof off the black Mazda and extract Mr. Yeo from it. He did not take any close-up photographs of Mr.

Yeo’s vehicle before the roof was cut off and added that he was not present when the firefighters cut off the roof. He confirmed that he took photographs #6-#35 between 12:45 PM and 1 PM on June 10, 2018, which were also filed in Exhibit 1 at Tab 10. “Bodily Harm” Sustained by Motorists on “Outbound” Lanes of Highway 102: [ 104 ] The first four counts in the Information before the Court allege that Mr. Yeo unlawfully had care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug and causing bodily harm, contrary to section 255(2) of the Code .

The four counts relate to separate allegations that bodily harm was caused to Sherry MacDonald, Bernie MacDonald, Michelle Robichaud and Abdul Majeed Faisal. [ 105 ] By virtue of an agreement between counsel and Admissions made by Mr. Yeo, pursuant to

section 655 of the Criminal Code , for the purpose of dispensing with proof thereof and for the exclusive purpose of this trial matter and related criminal proceedings, without admitting causation, Mr. Yeo admits that the injuries alleged by the Crown and supported by the documents and statements contained in Exhibit 1, meet the criteria to establish “bodily harm” in relation to all counts in the Information before the Court. As a result of that admission in relation to “bodily harm,” none of the named individuals were required to testify in court. [ 106 ] With respect to Mr.

Bernie MacDonald, the medical information contained in Exhibit 1 at Tab 1 confirms that he had initially been seen by doctors at the Cobequid Center about one hour after the accident which indicated that he had suffered multiple contusions as a result of the accident, had a headache and was feeling lightheaded. A follow-up assessment was done on June 15, 2010, which confirmed that Mr. MacDonald had suffered a concussion and that the symptoms were worsening.

The report also indicated that tinnitus was bilateral, but worse in the left ear and he was experiencing blurred vision, had difficulty reading and tingling in his left foot. Mr. MacDonald had been driving a rental vehicle and was returning to the airport to fly home to Michigan. When he was first seen by doctors on June 10, 2018, he was advised not to travel due to his concussion but was cleared to travel on June 15, 2018, and did so on June 17, 2018. [ 107 ] In Exhibit 1 at Tab 1B, there is a medical report, dated September 28, 2018 from Mr. McDonald’s Doctor located in Ann Arbor Michigan, which states that Mr.

MacDonald is recovering from “traumatic brain injury” sustained during a motor vehicle accident this summer and “that he has been making significant progress over the past few months.” He was cleared to return to work on October 1, 2018. [ 108 ] Mr. Bernie MacDonald had been driving in the white GMC Terrain SUV with license plate number GFB 812 which suffered extensive damage to the driver’s side front panels, broken windshield, smashed driver’s door which caused the airbags to deploy. The extensive damage to that rental vehicle was photographed by Cpl. Kellock in photographs #7 to #11 of Exhibit 1. [ 109 ] Ms.

Sherry MacDonald, who was the passenger in the rental SUV, driven by her husband, was taken to the hospital for examination shortly after their SUV was hit by a vehicle. The airbags in the SUV had deployed and she was complaining of pain in the

sides of her neck. With respect to Sherry MacDonald, counsel agreed by way of admission pursuant to

section 655 of the Criminal Code in Exhibit 1 at tab 1C that as a result of the accident on June 10, 2018, she experienced: (

a) a mild concussion; (

b) headaches; (

c) cuts through her clothing; (

d) a scar on her hand; (

e) pain in her neck, hand and neurological pain down her arm and (

f) weakening of musculature in her neck and swelling result in problems holding her head up and causing shaking and pain when exercising. [ 110 ] Counsel also agreed that, as a result of the injuries suffered by Ms. Sherry MacDonald as a result of the accident, she had undergone physical therapy two times per week for four months and had been ordered medication for pain management (naproxen) which had the side effect of making her drowsy when it is taken. [ 111 ] Mr. Abdulmajeed Faisal was driving his Toyota Highlander vehicle with license plate number FZL386.

The extensive damage to his vehicle was to the front panels and windshield on the passenger side was contained in Exhibit 1 at Tab 10, photographs #12 to #14. [ 112 ] With respect to the injuries sustained by Mr. Faisal, he prepared a letter dated November 7, 2019, which was part of the Admissions contained in Exhibit 1 at Tab 3B. Mr. Faisal stated that following the car accident on June 10, 2018, he continued to have physical health problems and was unable to work for more than six months. In December 2018, he was only able to return to work on a part-time basis - three days a week for four hours per day.

He returned to work on a full-time basis in May 2019. Mr. Faisal added that after the accident, he was referred to physiotherapy sessions and continued with them on a regular basis until July 2019. [ 113 ] Several months into his physiotherapy sessions, Mr. Faisal was advised to see an orthopedic surgeon due to continued and worsening pain in his left shoulder. The surgeon informed him that he had a full tear of one rotator cuff muscle and that there were some arthritic changes in his AC joint. The surgeon recommended a surgical procedure called a “shoulder scope” to repair the tear.

However, since the surgeon had advised him that the procedure is not always successful and would require over six months of physiotherapy post- operation, Mr. Faisal decided to forgo the operation due to the risks involved. Although physiotherapy ended in July 2019, Mr. Faisal was dealing with pain in his left shoulder as of the date of the letter in November 2019. [ 114 ] The fourth individual specifically named in the Information with respect to suffering “bodily harm” was Ms. Michelle Robichaud. She was driving a blue, Mazda 3 compact four-door sedan with license number EYG 130.

The extensive damage to the front-end and crushed hood and windshield as well as to the driver’s side front panels driver’s door and driver side rear panel was photographed by Cpl. Kellock in Exhibit 1 at Tab 10 Photographs, #31 to 35. [ 115 ] With respect to the injuries sustained by Ms. Robichaud as a result of the accident, the medical information was filed as part of the Admissions in Exhibit 1 at Tab 4B. Ms. Robichaud’s primary complaint immediately after the accident, at the hospital, on June 10, 2018, was neck pain to especially her left lateral clavicle. She had also suffered hematoma.

The attending physician at the hospital recommended that she should be off work for one week and to see her general practitioner during that time. “Reasonable Suspicion” and the ASD Demand: [ 116 ] As previously mentioned, Const. Grant Thomas of the RCMP had testified in December 2019 during the Charter voir dire which proceeded on a standalone basis and not as a blended voir dire with the trial proper. As a result, the evidence of Const. Thomas on the Charter voir dire did not form part of the evidence in the trial proper. On October 22, 2020, the Court rendered its oral decision on that

section 8 Charter application and concluded that Const. Thomas had formed the required “reasonable grounds to suspect” to make a valid ASD demand pursuant to section 254(2) (

b) of the Criminal Code and that there was no Charter violation . [ 117 ] On January 6, 2021, Const. Thomas testified in the trial proper with respect to his involvement at the scene of the accident and ultimately making an ASD demand pursuant to subsection 254(2) (

b) of the Criminal Code to require Mr. Yeo to provide a sample of his breath into an Approved Screening Device [ASD] to enable the proper analysis to be made whether alcohol or drug was in his body and that he operated or had care or control of a motor vehicle within the preceding three hours. [ 118 ] When Const. Thomas testified in court, he stated that he had about 13 years of experience as a police officer. He has been qualified as a breath technician and, at that point, had conducted about 100 breathalyzer tests.

He also indicated that he has been the lead investigator on about 20 impaired driving offences. [ 119 ] On June 10, 2018, he was on duty, wearing his RCMP uniform and that, at about 12:18 PM on that date, he heard dispatch information of a multi-vehicle collision on Highway 102 in the outbound lanes near Exit 5A. Based upon the information communicated over the radio, he estimated that the accident probably occurred just prior to the dispatch report. He drove to the scene of the collision in a marked police vehicle and arrived there at 12:47 PM.

Firefighters, EHS personnel and an ambulance as well as some RCMP officers were already at the scene. [ 120 ] On arrival, the first vehicle which Const. Thomas walked by was a black Mazda sedan resting on its side, with firefighters around that vehicle. The driver and only occupant of that car was trapped inside, and firefighters were assisting that person. They were getting ready to cut the roof off the car and extract Mr. Yeo from the overturned vehicle, as he walked by the black Mazda. Const.

Thomas looked through the windshield of the car and noted that the driver was conscious, breathing and was moving his head to look around. He did not notice any injuries on Mr. Yeo. [ 121 ] After those brief observations of the black Mazda, Const. Thomas walked up the highway to the next vehicle stopped on the road which was a Toyota Highlander with damage to its windshield and quarter panels. When he looked up the highway, Const. Thomas saw about 100 metres of debris on the road and other vehicles stopped in the “outbound” lanes of the highway or just off the highway on the gravel shoulder.

He described it as a “chaotic” scene. [ 122 ] Const. Thomas stated that it was “good weather” as it was a sunny day, with some clouds, the temperature was 17 °C and the roads were clean and dry. There was a “light breeze” and, on arrival, he did not see any obstructions on the “inbound” lanes of Highway 102. Const. Thomas stated that the highway, in both directions in that area, is very straight and level for “as far as you can see.” [ 123 ] The driver of the Toyota Highlander was Mr. Faisal, and he was still seated in his driver’s seat. He advised Const. Thomas that

he was quite shaken and sore from the black Mazda hitting his vehicle. Mr. Faisal explained how the accident occurred and that the black Mazda had gone through the grass median, in his estimation at a high rate of speed. Then, Const. Thomas looked at the tire tracks in the median going from the “inbound” lanes of Highway 102 in a diagonal direction toward the “outbound” lanes of Highway 102 and pointed them out in Exhibit 1 at Tab 10, photographs #61 and #62. [ 124 ] After his brief conversation with Mr. Faisal, Const.

Thomas walked back to the black Mazda and by that time, the firefighters had already cut the roof off the vehicle. He saw the firefighters assist Mr. Yeo out of the vehicle, pick him up and then walk with him over to the ambulance, which was parked nearby. Although Mr. Yeo walked to the ambulance, Const. Thomas observed that the firefighters took some of the weight off his feet as they acted like “human crutches.” [ 125 ] Const. Thomas pointed out that, as Mr. Yeo walked the short distance from his overturned car to the ambulance, he appeared to have a “little bit of a limp,” but Const.

Thomas did not note any signs of impairment at that time. He added that there was a strong smell of gasoline which had spilled on the road. In addition, as Mr. Yeo went by him, he did not make any eye contact with the officer. Const. Thomas remained a few feet away from Mr. Yeo and asked him a couple of questions about the accident, as the firefighters escorted him to the ambulance. He noted that Mr. Yeo was “very short with his answers,” but acknowledged that, at the same time, the firefighters were talking to Mr. Yeo to ensure that he was okay. [ 126 ] Const.

Thomas noted that there was already someone in the back of the ambulance on a stretcher and for that reason, Mr. Yeo was placed on a seat through a door on the side of the ambulance. Const. Thomas did not note any abnormal breathing by Mr. Yeo. He added that if he had seen anything “out of the ordinary,” he would have made a note. Const. Thomas stated that Mr. Yeo was not “clinching at anything” and did not appear to be in any “significant pain” and added that nothing really stood out. [ 127 ] It was “crowded” near Mr. Yeo as EHS paramedics and the firefighters were around him, while Const.

Thomas was trying to ask questions about how the accident had occurred. Once Mr. Yeo was seated in the ambulance, he was facing the back of the ambulance, but did not turn his head to make eye contact with Const. Thomas as he asked questions about the cause of this major collision. Mr. Yeo told Const. Thomas that he did not recall what had happened prior to the accident and just remembered rolling down the road. He added that he was coming from Pugwash and was on his way home from playing golf. The Open Can of Beer as part of the “Totality of Circumstances:” [ 128 ] As Const. Thomas was asking Mr.

Yeo questions about what had happened, Sgt. Morrison came over to him and said that there was a can of beer near the black Mazda on the roof of the car. Const. Thomas walked back to the black Mazda and saw a can of Sleeman’s 2.0 beer on the interior part of the

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