A Cambridge man who claimed he was in shock when he drank wine at home after his Mazda struck a transport truck on Highway 401 near Milton in 2019 will be tried for impaired driving again after the Superior Court of Justice granted the Crown's appeal of his acquittal.
The man, who was found guilty by an Ontario Superior Court judge and later sentenced on the charge of leaving the scene of an accident, was driving three co-workers home on the afternoon of Dec. 19, 2019 when the collision occurred
During his trial, all three passengers and a witness, said the man began "driving aggressively, swerving within his lane and coming too close to other vehicles as he changed lanes."
"He kept saying that he wanted to 'floor it,'" court documents state.
The car swerved out of its lane, hit the rumble strip on the left side of the highway, bounced off the median dividing wall and struck a transport truck in the middle lane. The Mazda's airbags deployed and there was smoke in the cabin of the car.
"Parts of either the car or the truck were falling off and car was shaking," the passengers testified.
Despite the severity of the accident, the man kept driving even though his passengers, one of whom suffered a head injury in the collision, begged him to pull over.
Instead, he said he couldn't and had to go home.
The passengers yelled at him to stop "at least 20 times" before he pulled to the side of the highway.
When he finally did, everyone got out to survey the damage and one of the passengers described the front of the car as "totalled" and another thought it was "undrivable."
As tow trucks arrived, the man got back into his car so he could leave, stranding his passengers to fend for themselves, saying "sorry, I got to go" and "I can't do this" and "I can't afford it."
When police and an ambulance arrived, the injured passenger was taken to hospital and the others were picked up by the girlfriend of one of them.
The man testified that after he got home to Cambridge about 25 minutes later, "he was in shock" as he sat in his car and called to report the accident.
When the call was over, he went into his house and immediately drank 800 ml of wine from a large mug over a span of about five to 10 minutes.
He said police officers arrived at his house about 25 minutes after he got there. He said told them he didn't think he had to remain at the scene of a single car accident and denied he left the scene to prevent police from investigating his sobriety there.
He told police the accident was the result of his car hitting a patch of ice.
The man made two unsatisfactory attempts to provide samples for a roadside breath test but on a third attempt he registered a “fail” for blood alcohol that exceeded 80 mg per 100 ml of blood.
He later provided breath samples to a qualified breath technician for two Intoxilyzer tests that revealed he had between 143 and 133 mg of alcohol in 100 ml of his blood.
None of the passengers who testified saw the man drinking at any point that day, either at work or during the drive home from work, and none of them saw signs of impairment or smelled alcohol in the car.
One of the passengers said the man "seemed a little off” at work and had had a minor accident while operating a forklift.
The arresting officer testified he observed no sign of impairment until the man was at the police detachment, where he developed "blood shot eyes."
Based on that testimony, the trial judge said there was no evidence of the defendant having consumed alcohol prior to arriving home and "at the very least, a reasonable doubt should be created."
The judge said the smell of alcohol on the man's breath was "clearly explainable by the fact that he admitted having a large glass of wine upon his return home to soothe his nerves after the accident."
Officers also testified that they saw the glass, or a glass, and a bottle which they felt contained an alcoholic beverage.
The trial judge also found the roadside breathalyzer test unreliable since the arresting officer didn't wait 15 minutes to administer it. Therefore, he found, the Intoxylyzer tests taken later were in breach of the Canadian Charter of Rights and Freedoms.
The man was found guilty of failing to remain at the scene of the accident. The judge said the man knew he'd collided with the transport truck and that one of his passengers had complained about being injured.
In its appeal, the Crown argued the trial judge erred in his interpretation of the criminal code in that the accused "must raise an air of reality" that his claim about drinking after driving was true because he had a reasonable expectation he would not be required to provide a breath sample.
In granting the appeal and ordering a new trial, superior court judge Ian Smith wrote that in his opinion, "no reasonable driver in those circumstances would have failed to expect that they would be required to supply a sample of their breath or blood."
The second argument in the appeal is that there is no requirement in every case to wait 15 minutes before administering a roadside breath test to produce a reliable result.
Smith, however, believed the trial judge was justified in finding the tests were taken in breach of the Charter, and that there were no reasonable and probable grounds to demand the Intoxilyzer test.
He did, however, conclude the judge erred in excluding the Intoxilyzer results.
"In my view, there was nothing which would justify a finding that the breach in this case was egregious," he wrote.
There was no finding the police acted in any deliberate or wilful way to administer the breath tests and there it was not part of a pattern of police misconduct or bad faith on the part of police in demanding the breath test.
The decision, released May 17, orders a new trial with a different judge of the Ontario Court of Justice.
