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Drinking and driving laws in Canada govern the operation of any motorized vehicle, including motorboats, all-terrain vehicles and snowmobiles. Nevertheless, DUI charges are generally laid against drivers of off-road vehicles and boats only when someone is injured in a crash, as police officers don’t commonly patrol areas where these vehicles are driven. This is what occurred in July 2011, when a 19-year-old young man was killed and another young man injured, in a crash involving an all-terrain utility (ATV or UTV) vehicle.
Following the accident, police officers charged the driver of the ATV with five Criminal Codeoffences, including operating a motor vehicle while impaired causing death, and operating a vehicle with blood alcohol concentration (BAC) over 80 milligrams in 100 millilitres of blood (‘over 80’), resulting in injury to one man and death to another. The defendant was also charged with taking the vehicle without the owner’s consent. There were several legal proceedings connected with these charges; however, successful arguments mounted by the defence and the Crown’s failure to prove the accused’s guilt beyond a reasonable doubt, resulted in all DUI charges being dropped or dismissed.
Overview of ‘The Accident’
The circumstances of the accident are as follows. The driver of the SUV (Mr. Wenham) and his work colleague (Mr. Shoemaker) were two young men from Toronto and Hamilton, who were visiting the town of New Liskeard, west of Lake Timiskaming, on a work-related trip for their employer. On the day of the accident, the men participated in a promotional scavenger hunt for their employer, where they met other young people who invited them to a party at a family cottage and after that, to a truck rodeo. After leaving the cottage at about 11 p.m., one of their new acquaintances drove three young men, including Mr. Wenham and Mr. Shoemaker, back from the cottage. On route, they stopped at the driver’s home, which was a farm outside of New Liskeard. While their driver went inside her home, the three young men had a beer from a cooler in the trunk of the car and explored the farm to see horses that they heard neighing. The accused became separated from the other two while they were petting the horses, but then pulled up in an ATV he found parked nearby. The two young men got on board and all three shared a bench seat. After a short drive on the grounds, the accused headed for the maintenance shed and made a sharp turn towards the shed, which caused the ATV to flip onto its passenger side. The accident caused Mr. Shoemaker to hit his head and blackout for a short time but apparently awakened to hear Mr. Wenham asking if everyone was okay. The third young man, Mr. Attila, suffered a serious head and brain injury. The accused immediately called 911 but tragically, the injury young man died before emergency services arrived.
Defence Seeks to Exclude Evidence in Pre-Trial Hearings
In two pre-trial hearings, in 2013 and 2014, the judge granted the accused an application to exclude various of the Crown’s evidence, pursuant to s. 24 of the Canadian Charter of Rights and Freedoms.
In the first hearing, the judge ruled that statements the accused made in response to questioning by police at the scene of the accident should be excluded on the grounds that they were statutorily compelled. Because these statements were excluded, they could not be used as grounds for the arresting officers to make an approved screening device (ASD) demand, which meant that the results of the Intoxilyzer readings taken after the accident must also be excluded.
When officers arrived at the scene, saw the flipped SUV and found that someone was fatally injured, they questioned the accused about the manner in which the accident occurred. Believing it was his legal duty to answer these questions, the accused told the officer he was driving and provided details of the events leading up to the accident and the amount of alcohol he had consumed (i.e. “one or two beers”). The judge found that the accused’s belief that he was lawfully required to report the accident and answer the officer’s questions was reasonable and genuine, and the officer did not indicate to Mr. Wenham the point at which he finished gathering information for a report and had begun an investigation. Based on his interview with the accused and the slight scent of alcohol, the officer made a standard demand for a breath sample into an approved screening device (ASD). When this registered a ‘fail’, the accused was arrested for operating a vehicle while ‘over 80’ causing death, and the accused was subsequently informed of his right to counsel. Intoxilyzer tests administered at the police station registered readings of 158 and 146 milligrams of alcohol in 100 millilitres of blood, respectively.
The trial judge cited R. v. White (1999), where the Supreme Court of Canada ruled that “statements made under compliance with the Motor Vehicle Act of B.C. were not admissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination enshrined in s. 7 of the Charter”. Although the Crown argued that excluding the Intoxilyzer readings would substantially impair the ability to prove their case and render the trial unfair, the judge relied on White and found that, “when it comes to statutorily compelled statements, trial fairness requires no less than the exclusion of all the evidence for all purposes”.
In the second hearing, the defence argued that the observations made by a constable while in the presence of the accused for the purpose of providing samples for the Intoxilyzer should also be excluded because they were made while the accused was arbitrarily and unlawfully detained, contrary to the Charter, s. 9. The judge agreed with defence counsel that the constable’s observation evidence should be excluded, but for a different reason. The judge found that because the sole purpose of the constable in question was to take breath samples, which arose out of a demand based on the accused’s compelled statements, to admit the observations of the constable as evidence of Mr. Wenham’s guilt would equate with allowing the Crown to use compelled evidence, and this should not be permitted, as decided in R. v. White (1999) and R. v. Soules (2011).
The Trial: R. v. Wenham
At the commencement of the trial, the Crown prosecutor withdrew two charges against the defendant, in which it was alleged that he caused bodily harm to another passenger, Mr. Shoemaker. The trial then proceeded on the three remaining charges: taking a motor vehicle without consent, impaired driving and causing death while ‘over 80’.
The Crown presented an abundance of eyewitness evidence, given by the friends of the deceased. And, as is often the case with such evidence, much of the eyewitness testimony was found to be unreliable and the judge was tasked with weeding out objective observations and facts from the biased narratives, weak recollections and outright misinformation asserted by several witnesses.
Analysis and Findings
On the charge of taking a motor vehicle without consent, the defence agreed, at the conclusion of the evidence, that the charge had been proven.
On the charge of ‘over 80’, the Crown stated that they had no evidence, beyond the results of the Intoxilyzer tests which were excluded in the pre-trial hearing. The judge noted that the Crown introduced evidence by witnesses who stated that the defendant was drinking at about the same rate as the deceased, Mr. Attila, and the Crown had evidence that Mr. Attila’s BAC was well over 80, from which it could have been inferred that the defendant had a BAC over the legal limit at the time of the accident. However, the judge agreed that this evidence falls short of establishing with certainty the amount of alcohol the defendant consumed and is insufficient to sustain a conviction on this charge. Therefore, he dismissed the ‘over 80’ charge against the accused.
This left one remaining charge to be decided: operating a motor vehicle while impaired by alcohol causing death. In order to prove that an accused’s ability to operate a motor vehicle was impaired, the prosecution must show, beyond a reasonable doubt, that the accused’s behaviour was a marked departure from the norm. On this issue, there was testimony given by a forensic toxicologist as well as several eyewitnesses, including Mr. Shoemaker.
The toxicologist noted that “impairment” refers to a person’s decreased ability to perform certain tasks; this differs from ‘intoxication’ which is an outward sign of drunkenness. The toxicologist testified that Mr. Antila, the deceased, had a BAC of 150 milligrams of alcohol in 100 millilitres of blood. It was argued that Mr. Antila’s BAC is relevant to the state of the accused because eyewitnesses testified that they had been drinking the same amount that evening.
Four friends of the deceased who were present at the cottage party, in addition to Mr. Shoemaker, gave testimony on what transpired at the event and how much drinking took place. However, the judge found the testimony of only one of the friends to be credible and not contradicted by other testimony, but this witness had consumed substantial alcohol at the party (by his own admittance) and could recall only limited details. With respect to the evidence presented by the other three witnesses, the judge found that their testimony at the trial was either inconsistent with their original statements to police, contradicted by other evidence or testimony, lacked common sense, or all of the above. One of the friends’ testimony was so full of contradictions, inaccurate statements and vague generalities about what he believed had happened, that the judge concluded he could not rely on this witness’ statements regarding the accused’s sobriety, despite the fact that the witness had not been drinking that evening because he expected to be a designated driver.
The judge found the testimony of Mr. Shoemaker to be the most reliable – it was given in a straightforward and candid manner, appeared unbiased and did not contradict his original statement to police. Mr. Shoemaker testified that there were only about 12 beers in their cooler when they arrived at the cottage and there was no ‘shot gunning’ (contrary to the testimony of two friends of the deceased). He also testified that the accused was in good spirits, not intoxicated, and he saw no evidence that Mr. Wenham’s ability to operate a motor vehicle was impaired when the group left the cottage. He also testified that he, the accused and the deceased only drank two or three beers; however, the judge doubted this one statement, given that the deceased’s BAC was consistent with having drunk 5.5 beers or more.
Mr. Shoemaker’s evidence that Mr. Wenham was not impaired was consistent with the testimony of an officer who arrived at the scene. The officer stated that the only sign of drinking was the ‘slight’ smell of alcohol; otherwise, the accused appeared calm, his speech was not slurred, he was able to answer questions, had no problems walking, and although his voice was shaking, this appeared to be related to the shock of what had occurred. In summary, there was nothing to make the officer conclude the accused was impaired. The officer’s observations were supported by the audio recording of Mr. Wenham’s 911 call to police. The call revealed the post-accident mayhem at the scene of the accident, but the accused answered the 911 operator’s questions articulately and showed no signs of impairment just minutes after the crash.
The Crown argued that the fact that the accused crashed the vehicle supports their argument that he was impaired by alcohol and this impairment caused Mr. Antila’s death. Relying on R. v. Petersen (1989), the court noted that the Crown does not have to prove that the crash “would not have occurred if Mr. Wenham was sober”. The courts have held that “impairment may be a proven cause in circumstances where an accused should have had a heightened sense of awareness”, in R. v. St-Amour (2006).
However, after considering testimony from the owner of the SUV, the officers at the scene and Mr. Shoemaker as well as photographs of the SUV’s tracks, the judge concluded that this was “not an unexplained accident”; rather, it occurred because the SUV was able to make turns much sharper than those of a car but was much less stable. Evidence supported the fact that Mr. Wenham was not driving very fast at the time of the accident, likely only 10 km/hr, when the SUV went into a ‘very low-speed rollover”. Also, the only eyewitness to the event, Mr. Shoemaker, testified that the accused was in control of the vehicle; at no time was he concerned for his safety, and there was no prior indication that the SUV might flip over.
Based on all the evidence, the judge found there were insufficient grounds to prove beyond a reasonable doubt that the accused was driving while impaired. The judge also stated that, even if the Crown had proved the accused was impaired, he was not satisfied beyond a reasonable doubt that his impairment caused the death of Mr. Antila.
This case was complicated by the circumstances of the accident – including the fact that it involved a vehicle that handles quite differently than a car or truck, the events leading up to the crash, and contradictory eyewitness testimony.
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