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Over 80 Judgment for Federoff Culver

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Case Name:

R. v. Culver

Between

Her Majesty the Queen, and

Federoff Culver

[2012] O.J. No. XXXX

Ontario Court of Justice

Barrie, Ontario

N.A. Smith J.

Oral judgment: January XX, 20XX.

(49 paras.)

Counsel:

R. Windor, Counsel for the Provincial Crown.

T. Pain, Counsel for Federoff Culver.

 

 

REASONS FOR JUDGMENT

1 N.A. SMITH J. (orally):— Mr. Culver is charged that on or about the 15th day of April 2011, at the City of Barrie in the said Region, while his ability to operate a motor vehicle was impaired by alcohol, did have the care or control of a motor vehicle, contrary to section 253(1)(a) of the Criminal Code of Canada.

2 This case is basically a two-witness case. There were only two witnesses called; Sergeant John Duracell and Mr. Culver. Also tendered, however, was a videotape of some of the interaction that Mr. Culver had at the police station with police officers, as well as photographs of St. Vincent Street at the bridge crossing Highway 400 and Codrington where there were parked cars.

3 The issue in this case is essentially whether the Crown has proven beyond a reasonable doubt the ability of Mr. Culver to operate a motor vehicle was impaired by alcohol. There does not appear to be any issue with respect to identity of Mr. Culver as the driver of the motor vehicle on the day in question. Also at issue is the reliability and the credibility of the two witnesses who provided viva voce evidence to the court.

4 Sergeant John Duracell testified that he was on duty that date, April 15th, 2011, in uniform operating a marked police vehicle. At 1:33 a.m. he was the intersection of St. Vincent and Grove Street in Barrie heading in a southbound direction which takes him towards the lake. St. Vincent is four lanes, paved, with markings that are painted. It also has concrete curbs along the borders of it and a yellow line separating the northbound and southbound lanes. It is a well-lit area. It is a residential area.

5 Sergeant Duracell testified that he was operating his motor vehicle when he noticed a vehicle in the right hand lane travelling at 40 kilometres an hour, estimated speed in a posted 50 zone. It was his evidence that he observed this vehicle from the curb lane to cross over the centre lane to the extreme left hand side across four lanes of traffic and enter the northbound lane nearly striking the opposite curb on the left hand side, but the vehicle did not. It then crossed back to the southbound lanes, over four lanes, and continued southbound.

6 The weather when he commenced his shift was cool and the roads dry and he did not recall any change in the weather that night. There were no other vehicles around and he did not notice any pedestrians. There was no signalling of this change of lanes. The officer described it as not being abrupt. It was like a sway. It slowly wandered or yawned to the other lanes, not abrupt. There was no explanation obvious to him with respect to obstructions or a problem on the roadway which would have caused this driving behaviour. The vehicle had come within two to three feet of the curb but did not strike it.

7 The officer continued southbound and observed as they were approaching Wellington that there was a parked car in the curb lane facing southbound. It was his evidence he observed the motor vehicle abruptly shift out of the lane to avoid contact with this parked car, again, the vehicle crossing over the centre line and into the northbound lane of traffic. The officer, again, testified that there was nothing on the road to require this type of driving action. The vehicle crossed over at least three lanes over the centre line and entered the other lanes of traffic for a short amount of time. The officer indicated that the painted lines on the road were present and he had no problem seeing them.

8 He continued to follow the vehicle which stopped at a traffic signal at St. Vincent and Penetang Street; this was a red traffic signal. It was his evidence he observed the vehicle turn on the right hand traffic indicator, which would indicate a right hand turn being made, yet the vehicle did not do so. The vehicle continued on when the light turned green and came to a stop at Codrington and St. Vincent. Once again, the right hand signal was on. The vehicle made a right hand turn and the officer testified it was travelling westbound on Codrington and it had entered the eastbound lanes and travelled in the eastbound lanes for half a city block. Although there are markings at the intersection, the officer was not sure if they were completely down the road. He indicated that there was no explanation obvious to him as to why this vehicle needed to be travelling in the oncoming lane.

9 He stopped the vehicle at 1:34 to 1:35 a.m. He approached the driver’s door. Mr. Culver was the driver and the only occupant in the motor vehicle. He asked Mr. Culver to produce the documentation; the driver’s licence, ownership and insurance and indicated the driver, that is Mr. Culver, was unable to find the documents on his person or in the vehicle. He looked at the glove box, the centre console and it also appeared that he reached behind to try to find the documents in possibly a briefcase or duffle bag in the rear or this pick up truck. The officer described Mr. Culver’s motor skills as very slow and unsteady and his movements as being almost lethargic moving, not an aggressive movement, slow and lethargic. He noted the smell of an alcoholic beverage coming from Mr. Culver’s breath. There was a conversation that took place between the two of them. The officer asked him to turn the engine off of the motor vehicle; Mr. Culver complied. He was asked to exit; he did. The officer testified he stumbled slightly. They then walked to between the cars.

10 He said he stumbled and almost fell. The roads were dry and concrete. The officer had no difficultly. Mr. Culver was wearing a loafer, a semi-casual dress shoe. His gait was slow and lethargic. The officer also testified that he observed that Mr. Culver’s speech was slurred and his eyes were bloodshot and glossy. He indicated that the odour was coming from his breath, he believed, and that Mr. Culver did not appear to have any stains or soils on his clothing as he would if a drink had spilled.

11 He was taken to the police station and they arrived at 1:50 a.m. There was a conversation that took place between them in the car and the officer testified that his manner of speech, that being Mr. Culver’s, was slurred and difficult to understand. He was polite and co-operative. He then went on to speak of their arrival at the station, entering the sallyport, being booked by Sergeant Spears, being advised of rights to counsel, the audio and videotaping at the station and the opportunity to contact counsel. He was asked about his ability and gait and testified he was, that being Mr. Culver, was staggering and unsteady on his feet.

12 The officer acknowledged that the driving that he observed from Mr. Culver was extremely dangerous driving that could have caused damage to himself or others. He acknowledged that, as a police officer, not only was he entitled to investigate that kind of behaviour but he had a duty to do so and that this was a very serious situation. The officer was questioned as to why he did not stop Mr. Culver in the opportunities that he had at the red lights to stop him and let him continue driving and the officer’s response to that was that he did not stop the diver because the driving was in such an extreme that he thought something that he knew was playing a joke on him. When he identified the plate as a farm plate he knew then that it was not such a person and knew the person was possibly impaired and it was not somebody playing a prank on him. The officer acknowledged that even if it was a prank or a joke it was not an appropriate one and there would be still a duty to pull the vehicle over.

13 The officer also noted that there was no damage to Mr. Culver’s vehicle that he observed. He did not know how Mr. Culver normally talks or his normal motor skills and described him as staggering and unsteady on his feet. He testified it was slightly at the roadside and he noticed this more when exiting the motor vehicle in the sallyport with the longer walk into the booking area. The type of staggering, he said, was obvious but not extreme to falling down but he did observe it.

14 The videotape was played under cross-examination for the officer and during the course of it the officer indicated that the speech did not sound free-flowing or natural. It was as if Mr. Culver had marbles in his mouth and also said that his initial contact in the vehicle he was difficult to understand but at the station you had to concentrate but could make out what he was saying.

15 The officer was also questioned about the movements that Mr. Culver made which were observable on the tape, and, the officer under cross-examination, agreed that the word staggering is a bit extreme to describe the type of movement that Mr. Culver was displaying. The officer did say that it wasn’t a fluid motion. It was unsteady, almost like staying or correcting the course but not swaying side to side.

16 Mr Culver testified. He is 52 years of age, is married and has been for 25 years. He has two boys and is a retirement investment planner. He was working out of Orillia, working a full day on the day in question, and wrapping up about 8:10 and 8:45 p.m. He and a colleague had planned to meet in Barrie at a sports bar, the Locker Room. The plan was to meet at nine thirty. Mr. Culver arrived, ordered a draft of beer and waited for his friend. It was a pitcher of beer that he ordered. The two of them then stayed at the bar until about five to ten minutes after one. While at the bar they ordered wings, fries, veggies and four pitchers of beer.

17 It was Mr. Culver’s evidence that they consumed approximately three and a half of the pitchers and that he probably had half of that. He then drove through a Tim Horton’s to get a coffee and drove his friend home to his residence and then headed to his sister’s. The friend’s residence is on a residential subdivision off of St. Vincent out towards the Barrie Country Club way. His sister lives in the opposite direction down St. Vincent. She lives where McDonald/Codrington and Owen Streets intersect, about a six or seven-minute drive from his friend’s place.

18 It was Mr. Culver’s evidence that he had planned on staying there because the drive was so long and he had to go to Orillia for work. He, himself, resides in another area which is approximately 100 kilometres away on the other side of the lake.

19 Mr. Culver described having to cross the bridge on St. Vincent which crosses the highway which was under construction at the time and narrows to one lane. He provided a photograph of the bridge to the court depicting what it looked like at the time that he was crossing it. He indicated he had no problem crossing the bridge and did not touch the barrier or cement barrier to either side. He also indicated that there were a couple of different ways to get to his sister’s; he could go down Penetang or Codrington. He had planned to go down Penetang and had put his signal on but then decided not to do so, continued onto Codrington and turned there. It was his evidence there was a lot of parking on both sides of the street.

20 Mr. Culver made it quite clear that he completely disagreed with the officer’s description of his driving behaviour. He denied that he veered across four lanes, almost hitting the curb. He denied that he almost hit a parked car and swerved and crossed over into the other lanes. He also denied that he was driving the wrong way on Codrington. When asked about obtaining his ownership, driver’s licence and insurance he testified that he keeps those in a little pouch that they give you with the manual which he sometimes keeps in the glove box or console, that he looked in the glove box first then the console and realized that it was not in his vehicle because two nights previously he had taken it out as an indicator light was going off and he had forgotten to put it back in his car. He also denied stumbling out of his vehicle, his vehicle he described, as a Ford F150 Super Cab four door, with runner rails on it and that you put one foot on and step off. He acknowledged you could jump off that but said he always steps off of it and he denied stumbling.

21 He agreed that the weather was excellent. There were no obstructions on St. Vincent and that once he passed the bridge it was smooth sailing, a four lane road, and there was no mystery in which lane you were to drive in. He also testified with respect to when he noticed the police officer that I will refer to shortly. He acknowledged under cross-examination that his eyes would have been glassy. He said they are nine tenths of the time when he’s been looking at a computer screen. There’s a good chance he’d be coming home from work and his eyes are strained. He also testified about the fact that his driver’s licence wasn’t in the truck and why he would leave it with the truck and was extensively cross-examined on that, which I will also refer to later. He was also questioned with respect to his plans to attend his sister’s place and his clothing that he would have had to change into the next day, which I will also refer to shortly.

22 A portion of the video, the DVD or CD, was played in court. On the DVD it appears on viewing the portions, at least, that were played in court that Mr. Culver is not having any difficulties in terms of walking; he’s not stumbling; he’s not tripping; he’s not falling down ; he’s not swaying back and forth while he is standing or weaving as he is walking. He sat when he was handcuffed with no difficulty. He looked at the sign on the wall when he was directed to do so, which indicated that they were recording. He stood up and was uncuffed with no problem, no shifting of his feet. He was asked to remove his jacket and he did so with no problem. He was asked to remove his tie and he did so with no problem, although he’s a little slow but there was no fumbling with it. He sat and there appeared to be no problem taking his shoes off other than the difficulties one would have bending over to unlace one’s shoes and take one’s shoes off. It was nothing that appeared out of the ordinary with respect to that. He also took his belt off on direction with no problem. He sat with no problem. He was taken to the washroom with no problem. He returned with no problem. He may have appeared a bit slow in movement but there is certainly nothing that could be categorized as weaving or staggering.

23 Now, I just pause to make reference to the evidence that he navigated the bridge without difficulty. The fact that he navigated the bridge on St. Vincent does not mean, as a matter of course, that he could not have driven in the fashion that the officer described. It’s not to say that an impaired person always drives badly on is unable to navigate certain hazards. However, the fact that he navigated the bridge, did not cause any damage to his vehicle and that he, according to the officer, had no damage on his vehicle does indicate that his ability to operate a motor vehicle was sufficient to allow him to navigate that construction site that was occurring on St. Vincent.

24 The Crown’s position is that Mr. Culver went to his sisters because he was impaired, not because this was a pre-planned visit. The Crown’s position is that Mr. Culver was tripped up under cross-examination by his clothing story and the changes in his story as to what he had with him. The Crown also questioned Mr. Culver’s story that he didn’t have his licence with him and why, based on his answers in cross-examination, and suggested that he was impaired and could not find the licence. The Crown also noted that Mr. Culver acknowledges he smells of alcohol, his eyes were glossy and bloodshot and to some degree he was impaired.

25 The Crown submitted that the officer treated Mr. Culver fairly and with respect, that the officer had no animosity towards him and the Crown posed the question why else would he stop Mr. Culver but for the observed driving behaviour. The Crown asks the court to accept the officer’s observation. The officer said he was more pronounced at the roadside. The Crown submitted that on the video he is not moving smoothly but halted and sounded like he had marbles in his mouth. The Crown submitted the officer who was there saw some difficulties with his speech.

26 The video may be neutral but it does not exonerate Mr. Culver. He is not walking smoothly and is confused about speaking with a lawyer, despite the explanation being given a couple of times. The Crown submitted that it has met the onus.

27 The defence position is the Crown has not proven its case beyond a reasonable doubt. The defence submitted it defies logic that the officer saw dangerous driving that he related yet did not pull Mr. Culver over at the stoplights on two occasions. The defence noted the officer described Mr. Culver as staggering and unsteady on his feet at the police station and he is not on the video. The officer agreed that staggering was a bit extreme to describe it. The defence submitted that the officer enhanced and exaggerated his testimony and is contradicted by the DVD.

28 The defence also pointed out that Mr. Culver was able to cross the bridge with one lane only without incident and asks how did he negotiate this if his driving was as relayed by Sergeant Duracell. The defence took the position that Mr. Culver was direct and frank in cross-examination and should be believed when he denies that he drove as indicated by the officer, when he denies slurred speech and denies the problems with his balance.

29 The Crown must prove its case beyond a reasonable doubt. The burden of proof always remains with the Crown. I’m aware that I’m not to apply proof beyond a reasonable doubt to each piece of evidence but to the case as a whole. Proof beyond a reasonable doubt applies to each of the essential elements of the offence. It is closer to near certainty than to a balance of probabilities. I instruct myself to follow R. v. Lifchus (1997), 118 CCC (3d) 1 (S.C.C.) that,

“A reasonable doubt is a doubt based on reason and common sense which must be logically based upon the of evidence or lack of evidence be achieved. Proof establishing a probability of guilt is not sufficient to establish guilt beyond a reasonable doubt.”

30 As expressed in R. v. Starr, [2000] 2 S.C.R. 144:

“The proof is to a near certainty. It falls much closer to absolute certainty than to proof on a balance of probabilities.”

31 I’m aware that I can accept all, part of, none of a witness’ testimony. In considering this case I must do an analysis of the evidence pursuant to the principles in R. v. W.(D.) [1991] 1 SCR 742 (S.C.C.) and the other cases I have referred to. I’ve considered Mr. Culver’s evidence in the context of the evidence as a whole. When determining the issue of credibility I have to look to the manner in which the Supreme Court said this is to be addressed. The first branch of R. v. W.(D.) is if I believe the evidence of the accused. If I believe the evidence of the accused I must acquit. Applying the second branch of R. v. W.(D.) that is the question of whether the evidence of the defendant raises a reasonable doubt. Can I reject the defendant’s evidence? If it raises a reasonable doubt I must acquit. The third branch of R. v. W.(D.) is whether, if I reject the defendant’s evidence, despite that on the whole of the evidence has the Crown proven its case beyond a reasonable doubt. Applying the third branch of R. v. W.(D.), based on the evidence that I do accept, am I convinced beyond a reasonable doubt of the guilt of the accused.

32 We will deal, first of all, with Mr. Culver’s evidence. There were some dichotomies and inconsistencies in the evidence of Mr. Culver. Mr. Culver’s evidence was that he planned on staying at his sisters. In his truck he had a laptop, a black sachal leather case or daytimer and maybe a bit of dry cleaning, he said. He was then asked what he took from the truck when he was taken by his sister and mother and said he had to take his daytimer and his sachal. He was asked the question “anything else?” and answer “No”. He then said that he came to his sister’s to shower and shave and he changed his clothes which were the clothes that were the dry cleaning in the truck. He claimed that the Crown’s questions refreshed his memory on this and that he changed at the truck.

33 One of the questions I have to ask is why he didn’t mention taking the clothes from the truck when he was asked what he took. Another is why he would be changing at the truck bare-chested to put on the shirt. He said that it had beer spilled on his previous shirt and it makes no sense to change then go back shave and shower and then put the shirt on that you had on when you were dirty. He then claimed that he has work clothes that he kept at his sisters; dress pants, shirts and tops and then claimed that he even had clean underwear and socks at his sisters. So his evidence was very uneven, changing and erratic with respect to this issue of the clothing which ties into whether, in fact, he did plan on staying at his sisters prior to his consuming alcohol.

34 Mr. Culver claimed that he had a good memory and although he made notes the notes didn’t refresh his memory, yet he had no memory of who was playing hockey, yet part of the reason he was at that bar was to watch hockey. He said he was looking for a good spot in terms of table to where the TV was. He agreed that part of the focus was on hockey.

35 There was also a line of questioning with respect to a scale and impairment and during that line of questioning he said he was a two to four but he doesn’t know the number. However, he also said that he did not feel impaired at all and during that line of questioning did express not knowing how to answer the Crown’s questions. He admitted that his eyes could be glossy and bloodshot and gave an explanation for it.

36 He was also questioned about when he first saw the officer. In cross-examination he said he first noticed the officer when the officer put the lights on and he noticed the lights coming on, that being in the context of the officer’s police lights. He then said that he saw the headlights of this vehicle previously and that he previously knew it was a police car when it was close enough to him he could tell as it’s very distinct.

37 There was also the line of questioning about not finding his licence and I note there is no evidence that the licence was, in fact, in the car. There’s no evidence it was in the car to be found during Mr. Culver’s search for it. It was Mr. Culver’s evidence that he leaves his licence in the truck and he does not carry a wallet. He keeps his driver’s licence, insurance and ownership in a little pouch with the manual; sometimes it’s in the console; I sometimes it’s in the glove box. He had taken it out the previous night because of this indicator light on. During the course of this line of cross-examination he said he only had one vehicle so he keeps it in the pouch. However, under cross-examination, it was acknowledged that his wife has a car which she sometimes drives. He then said that he takes the driver’s licence out when he’s with his wife’s car. He was asked what normally he carries on his person and he said bank card, driver’s licence, credit card, which appears to be contrary to his position that he keeps his driver’s licence in the motor vehicle but he then said that if he’s in his wife’s car he takes the driver’s licence out and misunderstood the question.

38 Normally he keeps cash and credit cards. He had his driver’s licence with him in the court; however, I’m not making any finding out of that because it very well could be that he brought that because he might think he might be called upon to surrender that at the conclusion of the case. And, in terms of why he would do it, his questioning and his answers occurred shortly after he was cautioned with respect to solicitor/client privilege and not divulging what discussions he had with his counsel because he might open that up.

39 So, there are some difficulties with Mr. Culver’s testimony to the extent that when I turn to the first hurdle in R. v. W.(D.) I can’t say that I believe him. I then move on to the next two steps which I’m going to combine, which is, does his evidence raise a reasonable doubt, can I reject it and, if I did on the rest of the evidence, would I find the Crown has proven its case beyond a reasonable doubt, and to that I turn to Sergeant Duracell’s testimony.

40 Now, Sergeant Duracell had no reason or motive to lie that was adduced in court. He exhibited no animus towards Mr. Culver. It appears he treated him politely and courteously. He pulled him over for some reason and pulling him over would certainly be consistent with the description of the driving behaviour he testified to in court. Now, he did not immediately pull Mr. Culver over and the explanation he gave was that he thought the driving was so extreme it was a friend essentially playing a joke on him. I did not find this to be unbelievable or non-sensical as put by the defence. In fact, it actually sounded quite believable and if he thought it was somebody he knew messing with his mind, diving in this fashion on roads where there was no other traffic, I can understand why he would not pull it over until he, in fact, confirmed that it was a farm plate and that he didn’t know anybody that would fall within that and so pulled the car over.

41 That having been said there are a number of areas of the officer’s evidence I have concerns with. He testified that Mr. Culver stumbled and almost fell when getting out of his vehicle; however, there was no description of in what fashion he stumbled, and I’m bearing in mind this is a Ford F150 pick up truck with a runner rail that has to be stood on, so I find it difficult to understand what the officer means by stumbled. Did he stumble when he was getting out and missing the runner rail? Did he get on the runner rail and then miss a step when coming down from the runner rail? Did he try to step directly out of the car with missing the runner rail? I don’t know. The officer didn’t describe it.

42 The officer said that Mr. Culver was slow and unsteady with his motor skills when he was looking for his documents. I have seen how Mr. Culver was handling himself at the police station a short time later in terms of disrobing and the like and I do not find that there is an unsteady motor skills, although he may be moving a bit slow in portions of it. The officer said, when talking about Mr. Culver at the station, that his speech was slurred and difficult to understand. I find that is contrary to what is depicted on the videotape that I observed. Mr. Culver arrived at the station at 1:50 in the morning. He was stopped at 1:35, 1:34 a.m., so this is 15 minutes later. We’re not talking about a huge amount of time later after the scene. The officer said he was staggering and unsteady on his feet and this was in the course of speaking about his dealings with Mr. Culver at the station. This was not depicted on my observations on the videotape.

43 The officer said that Mr. Culver was staggering and unsteady on his feet. He said it was slightly at the roadside and he noticed more when they were exiting the sallyport with a longer walk to the booking area. He also testified that the staggering, the slurred speech and the difficulties with his speech continued to the police station. He said the staggering was obvious, not extreme, to the extent of falling down. Then, the tape was played and it becomes that Mr. Culver had not a fluid motion and the officer agreed that staggering is a bit extreme. The officer agreed that the speech was not clear flowing, it was lake marbles in the mouth, and then said that on his initial contact in the vehicle with Mr. Culver it was difficult to understand him and at the station you had to concentrate but you can make out what he is saying. So, his speech was worse at the scene and better at the station and his unsteadiness was slightly at the roadside bit more so at the station.

44 In terms of the admission, if you wish to call that, of Mr. Culver about being a two to four on this scale of impairment, I give little or no weight to that. He, on a number of occasions during cross-examination, expressed a non-understanding of what the scale was, and, in addition, the scale was phrased as impairment, not impairment of the ability to operate a motor vehicle.

45 This is one witness who says one thing and another witness who says another thing. The witness, the officer who testifies to the driving behaviour observed and the indicia of impairment, is, in my view, contradicted to a certain extent by the tape that was played in court and even watered his testimony down when confronted with the videotape in court.

46 There is no rule that an officer by virtue of being an officer is to be believed over a citizen. The onus is on the Crown to satisfy me beyond a reasonable doubt. The test of impairment is set out in Stellato. R. v. Stellato (1993) 78 CCC (3d) 380 (O.C.A.), affirmed 90 CCC (3d) 160 (S.C.C.),

“… the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. It the evidence us impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.”

47 The offence is not met merely by someone drinking alcohol and being in care or control of a vehicle, neither is it made out by evidence of impairment alone. The impairment must be such as to be a contributing factor to an impairment of the ability to operate a motor vehicle.

48 Based on the nature of the evidence presented in this case, I am not in a position to make as a finding of fact that the driving behaviour was as indicated by the officer. Additionally, I’m not prepared to make as finding of facts that the indicia of impairment were as indicated by the officer in relation to the slurring of speech and the staggering and unsteadiness on the feet.

49 Accordingly, the Crown has not met the burden upon it. The Crown has not satisfied me beyond a reasonable doubt of the guilt of the accused and Mr. Culver will be found not guilty.

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