R. v. Wilson, 2011 ONCJ 820

COURT FILE No.: Brampton 10-7347 DATE: November 29, 2011 Citation: R. v. Wilson , 2011 ONCJ 820 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — michael wilson Before Justice Richard H.K. Schwarzl Heard on March 29, June 30, and October 31, 2011 Reasons for Judgment released on November 29, 2011 Ms. Megan Ward and Ms. Julie Quirt..................................................................... for the Crown Mr.

John May for the Accused SCHWARZL, J.: REASONS FOR JUDGMENT 1.0: INTRODUCTION [ 1 .] Michael Wilson stands charged that on June 21, 2010 at the City of Mississauga he operated a motor vehicle while his ability to do so was impaired by the consumption of alcohol and further that he operated a motor vehicle while his blood alcohol concentration exceeded the proscribed legal limit.

He has pled not guilty to each charge. [ 2 .] The central issues in the trial are whether the Crown has proven the following beyond a reasonable doubt: (i.) that Spencer Hughes, a civilian eye witness who observed erratic driving prior to police involvement, is a reliable witness; (ii.) that the ability of Mr. Wilson to operate a motor vehicle was impaired by the consumption of alcohol; and (iii.) that Mr. Wilson drove a motor vehicle with more than 80 milligrams of alcohol in one hundred millilitres of blood. [ 3 .] The Crown led evidence from four witnesses. The defence called two witnesses. Mr.

Wilson did not testify. 2.0:

SUMMARY OF EVIDENCE 2.1: Prosecution Evidence [ 4 .] On June 21, 2010 Mr. Spencer Hughes (“Hughes”) was the passenger in a car operated by his fiancé. At around 5:00 p.m. he was travelling northbound on Erin Mills Parkway in Mississauga in heavy, stop-and-go traffic. At that time, Hughes observed a dark

Lexus SUV veering from its lane into his without signalling causing his fiancé to slow down and honk her horn. The Lexus delayed braking thus nearly hitting the vehicle in front. It then returned to its original lane. [ 5 .] Hughes watched as the SUV partially veered into his lane without signalling again forcing Hughes’ fiancé to brake to avoid a collision and causing his fiancé to honk her horn a second time.

The SUV suddenly sped up close the car in front of it and then suddenly braked. [ 6 .] Hughes noticed that when the SUV was not driving erratically, it was driving at a relatively constant speed and never exceeded the limit over the few hundred meters Hughes was watching the motor vehicle. Hughes estimated that he had the car in his sight for approximately five minutes. [ 7 .] Hughes called 911 to report the erratic driving. He reported the licence plate to be ASMR-630 and he described the driver as male, lighter skin, 40 to 50 years of age, mustachioed, and wearing sunglasses.

Hughes had a brief, but clear, view of the driver as the SUV turned onto another road and out of sight. [ 8 .] At 5:10 p.m. P.C. Stephanie Gorrill (“Gorrill”) responded to the dispatch of Hughes’ 911 call. She patrolled the area and at 5:21 p.m. observed a black Lexus SUV bearing licence plate AFMR-630 and watched it drive slowly for some 15 seconds before it pulled into the driveway of a private residence on Brittania Road in Mississauga. Once it stopped, Mr. Wilson (“Wilson) got out of the driver’s side and unloaded some items from the rear.

Wilson was the sole occupant of the motor vehicle. [ 9 .] Gorrill made observations of Wilson outside his car including: • stumbling and poor balance; • the strong odour of alcohol on his breath; • flushed cheeks; • red-rimmed eyes; • his speech was slow, deliberate, and slurred; and • he had to lean on the trunk of the police car for balance. [ 10 .] At 5:24 p.m. Gorrill formed reasonable grounds to believe that the ability of Wilson to operate a motor vehicle was impaired by the consumption of alcohol and arrested him for impaired driving. By this time, P.C.

Michael Baillargeon had arrived to assist Gorrill. [ 11 .] Baillargeon made his own observations of Wilson including: • being unsteady on his feet; • having trouble holding himself up; • the odour of alcohol on his breath; and • red, glossy, and bloodshot eyes. [ 12 .] The officers both had trouble handcuffing Wilson because of his balance problems. [ 13 .] At 5:35 p.m. Gorrill made a lawful breath demand upon Wilson and then radioed for directions of where to take him for breath tests. Wilson’s Lexus was searched. The police found a ¾ empty 375 ml bottle of Smirnoff vodka and an empty 750 ml wine bottle.

[ 14 .] Gorrill took Wilson to 11 Division, arriving there at 6:02 p.m. After speaking with counsel in private, he was turned over to P.C. Paul Haramis (“Haramis”), a Qualified Technician. Using an approved instrument, Haramis received two samples of Wilson’s breath both of which were suitable for analysis. The first test was taken at 6:57 p.m. with a blood alcohol concentration result of 253 milligrams of alcohol in one hundred millilitres of blood.

The second test was taken at 7:21 p.m. with a blood alcohol concentration result of 246 milligrams of alcohol in one hundred millilitres of blood. [ 15 .] Between breath tests, Haramis interrogated Wilson. He who told the officer that he was last driving around 4:30 p.m. after leaving a storage facility. He said that he was alone. When asked what he had been drinking, Wilson replied, “Coke. Grapefruit juice.” Despite not yet knowing the test results, Wilson told Haramis, “I’m over the legal limit.” [ 16 .] Haramis made his own observations of Wilson.

They included: • the strong odour of alcohol on his breath; • flushed face; • little confidence in his ability to walk; • bloodshot eyes; and • slow, slurred speech. [ 17 .] Haramis agreed that drinking most of a mickey of vodka quickly would be an example of bolus drinking. However, he is not an expert and could testify about not what effect bolus drinking could have on the breath test results. 2.2: Defence Evidence [ 18 .] Brian Post (“Post”) lives in Apsely which is a long drive north of Mississauga. On June 21, 2010 at around 8:00 a.m. he met Wilson at Wilson’s cottage near Apsley.

Wilson was moving out and over the next two hours or so the two men loaded a truck completely full of furnishings. Post noticed that Wilson occasionally had balance problems while carrying heavy loads. Post had a couple of missteps, too. Post did not notice any odour or effects of alcohol on Wilson. [ 19 .] When they were done at around 10:00 a.m. Wilson drove away in his dark-coloured Lexus SUV to Mississauga. Post picked up his son-in-law, Tim Mosher (“Mosher”). The plan was for Post and Mosher to meet Wilson in Mississauga and unload the truck’s contents into a storage unit.

Post and Mosher arrived at the storage facility around 2:00 or 2:30 p.m.. Wilson arrived separately about twenty to thirty minutes later. Neither Post nor Mosher saw Wilson between leaving Apsley and arriving in Mississauga several hours later. All three unloaded the truck. Neither Post nor Mosher noticed any signs of alcohol on Wilson nor did he drink anything alcoholic, although he did lose his balance the odd time and complained of back pain. Wilson offered Mosher a coke to drink while unloading. [ 20 .] The truck was unloaded in approximately one and a-half to two hours, or anywhere from 4:00 to 5:00 p.m.

Neither Post nor Mosher had anything more than a general recollection about times. Wilson told Haramis he believed he left the storage facility on Winston Churchill Boulevard around 4:30 p.m.. At that time, Wilson paid Post and Mosher and the two parties went their separate ways. 3.0: ISSUES AND ANALYSIS 3.1: Was Spencer Hughes a reliable witness? [ 21 .] The defence submits that the evidence of Spencer Hughes was not reliable. They argue that there were several aspects of his evidence that should result in little or no weight being given to his observations.

[22.] First, Hughes recalled seeing the Lexus for some five minutes over a distance of only a few hundred metres. It was submittedthat given the relatively short distance, there would be no way that it would take as long as five minutes to cover that space. Second,when asked in court to identify the colour of Mr. Wilson’s suit, Hughes described it as brown or brownish when it was suggested to himthat it was in fact green.

Third, the defence submits that the failure of the Crown to call Hughes’ fiancé as a witness entitles the court tomake an adverse inference about Hughes’ credibility. [23.] I am unable to agree with the defence that Spencer Hughes was an unreliable witness. [24.] With respect to failing the call Hughes’ fiancé, I find no basis to impugn Hughes’ evidence with this fact. His fiancé was notinterviewed by the police so there is no foundation to presume she had any inconsistent observations from Hughes.

Also, the Crown isnot obliged to call every possible witness, but only those it feels are needed to prove their case: R. v. Cook (1997), (SCC), 114 C.C.C. (3d) 481 (S.C.C.). [25.] Regarding Hughes’ description of Mr.

Wilson’s suit in court, I note when Gorrill was asked the same question, she said itlooked brown while Baillargeon testified it looked “greenish.” I am not persuaded that the evidence concerning the colour of Mr.Wilson’s suit in any way compromised the credibility of Hughes or any other witness. [26.] As to duration and distance of the observations made by Hughes, they were of little importance to him. His attention wasriveted to the erratic driving, the car and its driver. His description of the driver was entirely consistent with how Mr. Wilson lookedwhen stopped by the police.

Hughes described the motor vehicle as a dark Lexus SUV with a certain plate. The police saw Mr. Wilsondriving a black Lexus with the same plate as described by Hughes but for one digit. Post said that Mr. Wilson was driving a dark LexusSUV. Lastly, Mr. Wilson admitted to P.C. Haramis that he was the sole occupant and driver of the SUV. [27.] I found Spencer Hughes’ evidence to be both credible and reliable. He had a good vantage point and a direct view of thedriving and, at the end, the driver. The strength of his evidence is enhanced by the evidence of P.C. Gorrill, Bryan Post, and thestatement of Mr.

Wilson to P.C. Haramis that he was the driver of the black Lexus SUV. It is further bolstered by the evidence of bothP.C. Gorrill and P.C. Baillageron that Mr. Wilson was drunk when he got out of his car. [28.] I find that Hughes’ evidence that Mr. Wilson was driving erratically at approximately 5:00 p.m. on June 21, 2010 to be entirelyreliable and trustworthy. 3.2: Was the ability of Mr.Wilson to operate a motor vehicle impaired by the consumption of alcohol? [29.] The defence submits that the evidence of impairment by alcohol is ambiguous.

They submit that: • the odour of alcohol witnessed by the police officers merely indicates recent consumption; • Mr. Wilson’s poor balance can be explained by a hard day of packing, driving, and unpacking; and • The breath room video shows Mr. Wilson speaking carefully and deliberately, without a slur. [30.] The Crown submits that based on (

a) the driving evidence and (

b) the evidence of three police regarding Mr. Wilson’sintoxication, that his ability to operate a motor vehicle was impaired by the consumption of alcohol. [31.] Any degree of impairment ranging from slight to great, establishes the offence: R. v. Stellato (1993), (ONCA), 78 C.C.C. (3d) 380 (Ont. C.A.) at p. 384 aff’d (1994), (SCC), 90 C.C.C. (3d) 160 (S.C.C.); R. v. Moreno-Baches,2007 ONCA 258 , [2007] O.J.

No. 1314 (C.A.). [32.] Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whetherimpacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like: R. v.Censoni, [2001] O.J. No 5189 at ¶ 47 (S.C.J.)

[33.] Taking a symptom of intoxication individually or isolating it in time when there is a period over which the subject is observedis not the correct analysis. The evidence must be viewed as a whole. Mr. Wilson was obviously intoxicated before going to the stationand it would appear that the effects of alcohol were subsiding by the end of the breath test procedure. Before knowing the test results,Mr. Wilson told Haramis that he was over the legal limit. I take that statement as an admission against interest that Mr.

Wilson knewthat he was driving with too much alcohol in his system. [34.] Considering the entirety of the evidence, including the evidence of Post, Mosher and the breath room video, I find that theCrown has proven beyond a reasonable doubt that Mr. Wilson’s ability to operate a motor vehicle was impaired by the consumption ofalcohol by no later when seen by Spencer Hughes and continuing at the police station. 3.3. Did Mr. Wilson’s blood alcohol concentration exceed the legal limit while driving? [35.] The defence submits that the evidence suggests that Mr. Wilson only drank alcohol after he left the storage unit.

Post did notsee Mr. Wilson drink anything alcoholic either while loading or unloading the moving truck. Mosher did not see any consumption ofalcohol either. Neither Post nor Mosher saw any signs of intoxication at any time. The defence submits that the presence of the emptywine bottle and the nearly empty mickey of vodka in Mr. Wilson’s front passenger seat suggests that the drinking occurred between 4:30and 5:20 p.m. and raises reasonable doubt due to bolus drinking. That is to say, the defence submits that is entirely possible, if not likely,that Mr.

Wilson drank while driving and that his blood alcohol concentration had not yet exceeded the legal limit when he wasapprehended by P.C. Gorrill. [36.] The Crown submits that there is no air of reality to a suggestion of bolus drinking, which they say is disproven in all of thecircumstances. They further submit that even if there was a possibility of bolus drinking, there is no evidence that Mr. Wilson’s bloodalcohol concentration was below the proscribed limit when he was driving or at the time of his apprehension. [37.] Section 258(1)(

c) of the Criminal Code states that where breath tests are taken and analyzed within two hours of the allegedoffence by a Qualified Technician using an approved instrument, then the results are conclusive proof of blood alcohol concentrationboth when the samples were taken and at that the time of driving unless there is evidence to the contrary on all of the following: (

i) That the approved instrument was malfunctioning or operated improperly; (ii) That the malfunction or improper operation resulted in a blood alcohol concentration over 80 milligrams of alcohol in onehundred millilitres of blood; and (iii) That the blood alcohol concentration would not have exceeded 80 milligrams of alcohol in one hundred millilitres of bloodat the time of the alleged offence. [38.] Section 258(1)(d.1) of the Criminal Code further states that breath tests taken and analysed under subsection (

c) with resultsover 80 milligrams of alcohol in one hundred millilitres of blood are proof that the driver’s blood alcohol concentration exceeded thelegal limit at the time of the alleged offence unless there is evidence that tends to show that the subject’s consumption is consistent withboth the blood alcohol concentration at time of testing and a blood alcohol concentration under the legal limit at the time of the allegedoffence. [39.] In this case, P.C. Haramis, a Qualified Technician, properly operated a fully functioning approved instrument. He receivedand analysed two suitable samples of Mr.

Wilson’s breath within two hours of the alleged offence. Accordingly, to raise a defence theremust be not only evidence of a drinking pattern but expert evidence in respect of the areas outlined in section 258(1)(d.1). [40.] The Crown has proven there was no bolus drinking in this case. It is clear from the erratic driving observed by Mr. Hughes atfive o’clock that Mr. Wilson was already significantly under the influence of alcohol. He was obviously intoxicated when encounteredby the first two officers some twenty minutes later.

I also take into consideration the common sense inference that people do notnormally ingest large amounts of alcohol just prior to, or while, driving: R. v. Paszczenko; R. v. Lima, 2010 ONCA 615 , [2010]O.J. No. 3974 (C.A.). [41.] There is no direct evidence at all of when he drank or how much he drank, except for his statement to P.C. Haramis that he

was drinking coke and grapefruit juice. Mr. Mosher said Mr. Wilson gave him a coke while they were unloading. It is reasonable to infer that he was likely drinking his coke and grapefruit juice at the time he offered Mosher a coke. This gave Mr. Wilson ample opportunity to mix liquor with his soft drinks sometime while unloading his furnishings. Since he was moving that day, one or both of the two liquor bottles in the front seat of his car could just as easily be empties from the cottage he had just cleared out.

Taking all of the evidence into account as well as common sense that people don’t guzzle lots of alcohol just before or while driving, I find that there was no bolus drinking in this case. [ 42 .] Even if I were to find that all of the drinking occurred entirely after leaving the storage unit there is no evidence that this meant that Mr. Wilson’s blood alcohol concentration was below 80 milligrams of alcohol in one hundred millilitres of blood while he was driving. Without any expert evidence, the best that I could say is that if Mr.

Wilson was drinking just before or while driving, his blood alcohol concentration at that time was probably lower than 240 milligrams of alcohol in one hundred millilitres of blood, but I cannot say it was below the legal limit as required by section 258(1)(d.1) of the Code . [ 43 .] The Crown was entitled to rely on the statutory presumptions set out in section 258(1) of the Criminal Code . There was no evidence that either the test procedures or instrumentation were faulty. I find there was no bolus drinking.

Even if there was the possibility of bolus drinking, there is no evidence that the drinking pattern was consistent with both the test results and with being under the legal limit at the time of driving. In light of this evidentiary record, the Crown has proven beyond a reasonable doubt that Mr. Wilson drove a motor vehicle while his blood alcohol concentration exceeded the legal limit. 4.0: CONCLUSION [ 44 .] For all of the reasons given, I find Michael Wilson guilty of impaired driving and guilty of driving with excess blood alcohol. Released: November 29, 2011 _____________________________________ Richard H.K.

Schwarzl, Justice of the Ontario Court of Justice