R. v. Ashton, 2015 ONCJ 22

Citation: Haldimand (County) v. Powell, 2015 ONCJ 22 ONTARIO COURT OF Justice Central West Region Haldimand County -and- Dalton Powell Sr Proceedings conducted 18 June, 2014 and 10 September, 2014, at the Haldimand County (Cayuga), Ontario Decision and Reasons issued 14 January, 2015 Appearances: D. A. Maloney for the Prosecutor G. Tennant for the defence Statutes Considered or Cited: Criminal Code of Canada, R.S.C. 1985,c.C-46, as amended (“CCC”) Highway Traffic Act R.S.O. 1990, c.H8, as amended (“HTA”) Provincial Offences Act R.S.O. 1990, c. P.33, as amended (“POA”) Cases or Sources Considered or Cited: R. v.

Ashton, [1985] O.J. No. 1795 R. v. Ereddia, [2006] O.J. No. 3421 R. v. Holyoake, [2010] O.J. No. 5234 R. v. McIver, (ON CA), [1965] 2 O.R. 475-481 R. v. Pyszko, [1998] O.J. No. 1218 R. v. Smith (1961), (BC SC), 130 C.C.C. 177 (B..C. Co. Ct.) Decision of the Court 1. Mr. Powel is before the Court in response to charges that he operated his motor vehicle carelessly, contrary to s.130 of the HTA,and, as a young driver, with blood alcohol concentration above zero, contrary to s.44.5. 2.

For the reasons set out below, I find that the prosecution has proved each of the elements of the charges before me beyond areasonable doubt, and, having heard no evidence by the defence going to the merits of the charges, that there are no grounds for adefence of due diligence. Accordingly, I find the defendant guilty on both counts. Background and Evidence 3. Cst. Mazur was dispatched to the scene of a reported accident, and describes his investigation and observations at the accident

scene, as follows: a. after being dispatched, he arrived at what appeared to be an accident scene on Highway 3, east of Crown Road in the municipality of Dunnville (Haldimand County) b. there, he observed a motor vehicle overturned on its roof, positioned roughly in the middle of the road c. he reported that, at this point, Highway 3 is a two lane paved road, with large trees and houses on either side of the road, with a posted 80 kilometre per hour speed limit d. the road is generally straight, however, it curves to the left to the west of that point e. there were no traffic controls posted or operating at that location, nor were there any visible obstructions f. the weather was “warm”, and the atmosphere was “clear” 4 .

From what was later stated as conclusions drawn from his observations, I infer that Cst. Mazur observed damage to a tree to the north side of the road, and markings suggesting a path of travel of the motor vehicle off the roadway in a westerly direction, striking the tree then returning to the road where it came to rest upside down. The evidence indicates there was a debris field that included tools and vehicle parts strewn about on the road, presumably consistent with the reported conclusions. 5 . In evidence, Officer Mazur reported that as part of his investigation, he had been searching for a possible driver.

His search, as well as searches conducted by ambulance and fire personnel (aided by a heat seeking infra-red device) proved fruitless. 6 . In evidence, both from a voir dire which was subsequently admitted to the trial proper, and evidence in the course of the trial itself, the officer indicated that he later observed a single male approaching the accident scene and he asked if the male had been the driver of the motor vehicle which had apparently been involved in the accident. Upon being told by the male that he had been, the officer then asked for the person’s name, which was given as that of the defendant. 7 .

Cst. Mazur observed that the defendant exhibited signs of impairment, including glossy and blood shot eyes, emanating a strong odour of alcohol on his breath, using slurred speech expressed slowly, being unsteady on this feet and wearing only socks on his feet. 8 . At some point of the investigation, Cst. Mazur confirmed the identity of the defendant by requesting and obtaining his Ontario driver’s license bearing his photo image. There was no issue as to the identity of the defendant. 9 . Cst. Darren Vandertuin gave evidence that after the initial investigation by Cst.

Mazur, the defendant was investigated by him in relation to the level of impairment. Cst. Vandertuin reported that as a qualified breath technician he conducted tests, and he found that the defendant had blood alcohol readings in excess of zero. He also gave evidence of indicia of physical impairment, specifically a strong odour of stale alcohol emanating from the defendant. It is notable that the investigation was related to possible CCC charges; all steps were undertaken with appropriate cautions having been given. 10 .

Finally, the evidence reveals that the driver, based on his age is a young driver and therefore subject to the requirement of having a blood alcohol content of zero at all times while driving. 11 . The defendant gave no evidence. Issues 12 . The main issue is whether the description of the scene where the vehicle was located is sufficient to found a conviction for careless driving, absent any evidence of inappropriate driving behaviour. In the defence submissions, requiring the defendant to “explain” what happened is tantamount to reversing the onus from the prosecution to the defendant, which would be improper.

The prosecution argues that, once it establishes circumstances from which the Court can infer the facts that establish that the defendant engaged in driving behaviour “without due care and attention”, thereupon, it falls to the defendant to rebut the inference by calling evidence. 13 . In support of its position, the defence relies on the decisions in Hollyoake, Pyszko, Erredia and Smith . These three cases reflect the principle, as set out Smith , and echoed in the other cases, that “the mere occurrence of the accident could not give rise to a presumption this it had been caused by very great negligence”. 14 .

Further, defence relies on the ratio in Ashton , which addressed facts involving alleged impairment and violation of licencing restrictions. In that case, the decision of the trial judge to dismiss the charges on the basis of no logical connection between those facts and the accident itself was upheld on appeal. 15 . The prosecutor, by contrast, relies on the principle, adopted in McIver , which states, inter alia Counsel for the accused argued, first, that the evidence of the Crown consisted of nothing more than that there had been an accident.

There was no direct evidence as to the manner in which the accused had been driving his vehicle prior to the accident. This, he contended, was insufficient to satisfy the rule in Hodge's Case (1838), 1838 CanLII 1 (FOREP) , 2 Lewin 227 at p. 228, 168 E.R. 1136 . Secondly, he contended that the judgment in R. v. Bain (an unreported decision of the Court of Appeal, dated October 9, 1963) applied. The facts in that case were substantially similar to those in the case at bar, and the Court, without giving reasons, allowed the appeal and acquitted the accused.

Upon reading the case stated by the Magistrate, I would conclude that there was evidence from which an inference could be drawn to the effect that the accused was driving carelessly. The juxtaposition of the two vehicles by itself would point to lack of due care and attention on the part of the accused. In addition to this there was evidence described by the Magistrate in the stated case of a number of conditions and surrounding circumstances from which it would appear that unless there were carelessness the collision would not likely have occurred.

There was nothing in the evidence from which a contrary conclusion could be drawn. There was no explanation of the cause of the accident. 16 . Mr. Tennant takes exception to the notion that requiring the defendant to negative an inference that could logically be drawn from the circumstances surrounding an accident, on the basis that this is tantamount to ”reversing the onus”, which would of course be an error in law. 17 . Apparently, Fontana J. in Pyszko was not troubled in the same way. In that case, he wrote 8 The test of s. 130 is framed in very broad and general terms -- "without due care and attention".

Unlike other Highway Traffic Act offenses it is the lack of specificity as to how the offense is committed, which causes the problem. 9 There is a rather strong inclination, understandable in these cases, to view the mishap itself and its unfortunate consequence, as constituting the act of carelessness. But that is not the case. The gravamen of the offence is the operating of the motor vehicle "without due care and attention", not the consequence of driving without due care and attention. 10 In a given case, the mishap itself might indeed be evidence that an individual was driving without due care and attention.

But equally, and theoretically, an individual could be guilty of driving without due care and attention even though no mishap resulted from the driving. It is rare but not unheard of, that a charge of careless driving, i.e. driving without due care and attention -- is laid where there has been no mishap in consequence thereof. Fontana, J went on, concluding 14 I am of the view that Beauchamp is modified by McIver which is later in time. McIver , in my view has the effect of shifting the onus to the accused to demonstrate that the act was done without negligence or fault.

I believe this matter falls four-square within the principles set out in McIver . There is, here, evidence from which the trial judge could draw the inference of guilt (which he has done), and no evidence presented by the defendant to support any other finding. 18 . Indeed, Keenan, D.C.J writing in Ashton (a decision that follows after the McIver decision) adopted the same reasoning. In that case, the trial judge dismissed a charge of careless driving where there was evidence of impairment (by drugs) and driving in contravention of licencing restriction on driving at the time of day when the incident occurred.

However, there was evidence lead to negative the inference of negligence and this was sufficient to justify the trial justice`s ruling. 19 . In regard to the charge of being a young driver operating a vehicle with a blood alcohol content above zero, the defence argues that there is no evidence related to the time of actual operation of the motor vehicle. All the evidence comes from observations made at least thirty minutes after the investigating officer arrived at the scene, that, presumably some time after the accident itself. 20 .

The defence also expressed some concern regarding the reference sample sued in testing, however, this was not a significant element of the defence position. 21 . By contrast, once again, the prosecution argues that the evidence of blood alcohol content above zero at a later time leads to the inference that it was also above zero at the time of operation, and which is therefore open to be rebutted but was not. Court’s Analysis 22 .

In my view, the issue with respect to the careless driving charge is informed by the decision relied upon by the defence in Ashton , wherein the Court adopted the following approach to assessing the evidence 16 In my view both judgments in McIver assert the proposition: 1. If there is evidence from which an inference can be drawn that the accused drove carelessly; and 2. There is no evidence which supports a rational alternative conclusion; 3. A prima facie case has been made out. 4. If so, the accused is left with the practical burden of presenting an explanation in order to avoid a finding of guilt. 23 .

In this case, I accept that the evidence from the scene of the roadside, including the damage, the strewing about of tools and vehicle parts, indications of the vehicle leaving the roadway and having sufficient momentum to return to the roadway and flip on its roof, together with the indicia of impairment and in particular in the context of a prohibition of operating a motor vehicle with any level of alcohol in the blood system, are sufficient to lead to an inference that the operator of the motor vehicle operated without due care and attention and cries out for an explanation, should there be one. 24 .

Without that explanation, I find that the prosecution has met its burden to prove the elements of the charge beyond a reasonable

doubt and thus conclude as I set out above that the conviction should be entered. 25 . With regard to the charge of being a young driver with blood alcohol concentration above zero, the relevant provisions are found in s.44.1 of the HTA . They read, in part, as follows: 44.1

(2) It is a condition of the driver’s licence of every young driver that his or her blood alcohol concentration level be zero while he or she is driving a motor vehicle on a highway.

(8) In this section, “young driver” means a driver who is under 22 years old 26 . There is no dispute that the defendant was a young driver. There is no material dispute regarding the steps taken to obtain the sample, nor concerning lack of any caution or access to legal advice. 27 . The only question is whether there is evidence upon which the Court can find that the defendant was operating his motor vehicle while his blood alcohol content was above zero. 28 .

As set out above, it is acknowledged d that the evidence demonstrates his blood alcohol content was above zero at the time of the investigation into the accident, which commenced at least some thirty minutes after the accident itself. As also indicated above, the defendant made an inculpatory statement he had been driving the vehicle. However, no one who actually saw him operating a vehicle was able to give evidence about the level of blood alcohol concentration at the time of operation. 29 .

As a general principle, it stands of course to reason that any measurement of blood alcohol concentration will be made after the time of observed operation of a motor vehicle. This is necessary for the obvious reasons that the driver suspected of breaching the zero alcohol concentration requirement must be stopped, identified, and identified as possibly breaching the requirement, and the implementation of any testing protocols. There will, then, always be some delay between the time of operation of a motor vehicle and the required observations and/or testing. 30 .

However, in this case, there is a gap in time between the operation of the motor vehicle and the first assessment by the investigating officer. It is unknown what happened during that time period, and, once supposes, it is possible that the defendant did something that could result in the elevated blood alcohol reading. There is no evidence, however, to this end. Similarly, there was no evidence to the contrary, that is, that the driver did not consume anything that could result in the elevated readings. 31 . That time gap was extended in part as well because the defendant was being reated medically. 32 .

I am mindful of the provision in the CCC , relating to breath samples (used to establish blood alcohol concentration). Particularly, s.258 provides (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; 33 .

It is notable that no parallel provision was enacted as part of the HTA , and, accordingly, I cannot apply the presumption set out in the CCC . It may be a fair argument (though not advanced by the defence) that since a similar provision was not enacted as part of the HTA, the legislature indicated its choice to not impose that presumption. There were no submissions as to the legislative intent regarding the adoption of the young driver provisions. 34 .

On the other side of the equation, it stands to reason that if the results of an Intoxilyzer test are dispositive of the issue subject to the conditions set out in the CCC , where the consequences of a criminal record and associated penalties are more impactful, then one imagines that applying that standard in the context of a regulatory proceeding under the HTA , where, as in this case, the penalty can be no more than a fine of $500 and a driving suspension for no more than thirty days is not unjust. 35 .

Finally, I note that neither the prosecutor nor the defendant made any submissions regarding the nature of the offence, that is whether it is strict or absolute liability. I am mindful that if the charge is an offence of absolute liability then the defence of due diligence would not apply, which could also influence the outcome of any analysis. That said, once again, no defence evidence was called.

36 . Ultimately, the issue comes down to a question of whether the proof that the defendant`s blood alcohol content was above zero when tested is sufficient to support the logical inference that it was also above zero at the time he was operating a motor vehicle. 37 .

Having regard to all the evidence in this case, I am satisfied that, absent any information that would establish that the blood alcohol content detected after the accident was a result of alcohol consumption during the period between the time of driving and the time the testing was done or some other unexplained factor, and mindful of the physical observations made shortly after the investigation commenced, I am satisfied that the prosecution has proved the elements of this charge beyond a reasonable doubt and likewise conclude as I set out above that the conviction should be entered on this charge as well.

Issued at Cayuga, Haldimand County, Ontario, 14 January, 2015 Donald Dudar Justice of the Peace _____________________________ His Worship Donald Dudar Justice of the Peace