R. v. Tobin (J.K.), 2008 ABQB 718

• Judge: Eidsvik, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 19, 2008
• Citations: 2008 ABQB 718;(2008), 461 A.R. 78 (QB)

R. v. Tobin (J.K.) (2008), 461 A.R. 78 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. DE.021

Her Majesty the Queen (Crown) v. Johnathon Kevin Tobin (accused)

(070806252Q1; 2008 ABQB 718)

Indexed As: R. v. Tobin (J.K.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Eidsvik, J.

November 19, 2008.

Summary:

The accused was charged with dangerous driving causing death, impaired driving causing death, failing to comply with a demand for a blood sample, failing to remain at the scene of an accident and operating a motor vehicle while having a blood-alcohol level higher than 80 mg%. The accused obtained a non-suit on the failing to comply with a demand charge.

The Alberta Court of Queen's Bench found the accused guilty of operating a vehicle while having a blood-alcohol level higher than 80mg%, but not guilty on the other four counts.

Criminal Law - Topic 1357

Offences against person and reputation - Motor vehicles - Failing to stop or remain at accident scene - Mens rea or intention - The accused was driving his vehicle - At the end of the exit ramp, the vehicle fishtailed but regained control - The accused changed lanes once without incident, then changed lanes into the left lane to pass a semi tractor trailer - The accused drove up along the semi and then he lost control of the vehicle - The tail end of the vehicle swung to the left and the vehicle went underneath the semi's trailer - The accused got out of the vehicle and requested help for his passenger - The semi's driver called 911 - Others stopped to help - Nobody noticed an odour of alcohol on the accused's breath - The accused was erratic and out of control - The passenger (the accused's girlfriend) died - The accused screamed "No!" and left the scene - He was later found by a police officer - The officer noticed a smell of alcohol on his breath - Blood samples were taken at the hospital and the lab report showed that the accused had a blood-alcohol reading of between 117 and 133 mg% - The accused was charged with, inter alia, failing to remain at the scene of an accident - The Alberta Court of Queen's Bench found the accused not guilty - It was clear that the accused did not fail to stop his vehicle because it was stopped by the collision itself - He immediately obtained assistance for his injured passenger by first knocking on the trucker's door and then ensuring that the trucker had called 911 - The accused then enlisted the assistance of a nurse - Nonetheless, he continued to seek help for his girlfriend from the passing paramedics and others who had stopped at the scene - He gave his first name to the passing paramedic and told several who asked that he was the driver - The accused's behaviour after the accident was very erratic, unpredictable, upset, aggressive, and basically out of control - It was clear from the evidence of many that he was bleeding from his face and had blood on his hands, and he was later diagnosed with having suffered from a concussion - He was in shock, as was the trucker, and severely emotionally traumatized - He only left the scene when he found out that his girlfriend had died which, despite his efforts to calm down with the assistance of his stepfather and others, he was not capable of doing so at that time - The court had severe doubts that the accused was capable of complying with every duty listed under s. 252 of the Criminal Code, considering his medical and emotional state - See paragraphs 92 to 116.

Criminal Law - Topic 1362.1

Offences against person and reputation - Motor vehicles - Impaired driving - Impaired driving causing injury or death - The accused was driving his vehicle - At the end of the exit ramp, the vehicle fishtailed but regained control - The accused changed lanes once without incident, then changed lanes into the left lane to pass a semi tractor trailer - The accused drove up along the semi and then he lost control of the vehicle - The tail end of the vehicle swung to the left and the vehicle went underneath the semi's trailer - The accused got out of the vehicle and requested help for his passenger - The semi's driver called 911 - Others stopped to help - Nobody noticed an odour of alcohol on the accused's breath - The accused was erratic and out of control - The passenger (the accused's girlfriend) died - The accused screamed "No!" and left the scene - He was later found by a police officer - The officer noticed a smell of alcohol on his breath - Blood samples were taken at the hospital and the lab report showed that the accused had a blood-alcohol reading of between 117 and 133 mg% - The accused was charged with, inter alia, impaired driving causing death - The Alberta Court of Queen's Bench found the accused not guilty - Most of the behaviour exhibited by the accused was also consistent with the accused's injuries and obvious emotional state of shock and trauma one might suffer from watching a loved one die in such circumstances - Additionally, there was no conduct in the driving that could be said to have been caused by impairment, to the extent that there was any - The accused was driving straight in his lane, made safe lane changes, reacted appropriately to move around the semi, was not driving at an excessive speed and did not ignore any traffic signs or breach any traffic regulations - Accelerating around the semi was an unsafe manoeuver - It might have started the chain of events, likely contributed to by the mechanical defects and the gravel on the road, but did not make the initial action attract criminal sanctions - See paragraphs 72 to 84.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was driving his vehicle - At the end of the exit ramp, the vehicle fishtailed but regained control - The accused changed lanes once without incident, then changed lanes into the left lane to pass a semi tractor trailer - The accused drove up along the semi and then he lost control of the vehicle - The tail end of the vehicle swung to the left and the vehicle went underneath the semi's trailer - The accused got out of the vehicle and requested help for his passenger - The semi's driver called 911 - Others stopped to help - Nobody noticed an odour of alcohol on the accused's breath - The accused was erratic and out of control - The passenger (the accused's girlfriend) died - The accused screamed "No!" and left the scene - He was later found by a police officer - The officer noticed a smell of alcohol on his breath - Blood samples were taken at the hospital and the lab report showed that the accused had a blood-alcohol reading of between 117 and 133 mg% - The accused was charged with, inter alia, operating a motor vehicle while having a blood-alcohol level higher than 80 mg% - The Alberta Court of Queen's Bench found the accused guilty - The court found that the accused was engaged in "social drinking" before he started to drive, but it did not accept that he was engaged in any guzzling or "bolus" drinking while driving - Based on the lab report of the COOH-THC in the accused's bloodstream it was established that he was ingesting marijuana within an hour or so before driving, so it was quite possible that he drank some of the beer/drinks that he admitted drinking to a few people after the collision, at the same time - Further, the court was persuaded by the evidence of the many civilian and police witnesses that interacted with the accused after the collision that he did not have an odor of alcohol coming from his breath at the scene or shortly thereafter - Had he been guzzling alcohol basically while driving, his breath would have smelled - Also, there were no bottles or other indicia in the car to suggest that he had been drinking in it - See paragraphs 60 to 71.

Criminal Law - Topic 1391.2

Offences against person and reputation - Motor vehicles - Dangerous driving - Causing death or bodily harm - The accused was driving his vehicle - At the end of the exit ramp, the vehicle fishtailed but regained control - The accused changed lanes once without incident, then changed lanes into the left lane to pass a semi tractor trailer - The accused drove up along the semi and then he lost control of the vehicle - The tail end of the vehicle swung to the left and the vehicle went underneath the semi's trailer - The accused got out of the vehicle and requested help for his passenger - The semi's driver called 911 - Others stopped to help - Nobody noticed an odour of alcohol on the accused's breath - The accused was erratic and out of control - The passenger (the accused's girlfriend) died - The accused screamed "No!" and left the scene - He was later found by a police officer - The officer noticed a smell of alcohol on his breath - Blood samples were taken at the hospital and the lab report showed that the accused had a blood-alcohol reading of between 117 and 133 mg% - The accused was charged with, inter alia, dangerous driving causing death - The Alberta Court of Queen's Bench found the accused not guilty - There was only a moderate amount of traffic at the time - The accused was not putting any other vehicles at risk in any of his driving - There were no breaches of any traffic regulations, such as excessive speed or failing to heed traffic signs or signals - The loss of control was not caused by any untoward conduct in the circumstances, but by a combination of mechanical deficiencies that could well have been unknown to the accused, and normal driving conduct - The fact of changing lanes to get around a slower moving semi, and accelerating to do so, was not a dangerous manner of driving, even if it might have been a bit aggressive - The manner in which the accused operated the vehicle was not "dangerous" in these circumstances - See paragraphs 85 to 91.

Criminal Law - Topic 1400

Offences against person and reputation - Motor vehicles - Impaired driving causing death or bodily harm - Evidence and proof - [See Criminal Law - Topic 1362.1 ].

Cases Noticed:

R. v. English (1982), 47 Alta. L.R.(2d) 372 (C.A.), refd to. [para. 64].

R. v. Grosse (P.) (1996), 91 O.A.C. 40; 107 C.C.C.(3d) 97 (C.A.), refd to. [para. 64].

R. v. Hall (S.) (2007), 219 O.A.C. 251; 83 O.R.(3d) 641 (C.A.), refd to. [para. 66].

R. v. Callahan (S.L.) (2008), 455 A.R. 54; 2008 ABQB 324, refd to. [para. 66].

R. v. Noble (S.J.) (1997), 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1; 114 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 67].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 73].

R. v. Nette (D.M.) (2001), 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 2001 SCC 78, refd to. [para. 82].

R. v. Smithers (1977), 15 N.R. 287; 34 C.C.C.(2d) 427 (S.C.C.), refd to. [para. 82].

R. v. Ewart (1989), 100 A.R. 118 (C.A.), refd to. [para. 82].

R. v. Beatty (J.R.) (2008), 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7; 2008 SCC 5, refd to. [para. 85].

R. v. Colby (1989), 100 A.R. 142; 1989 CarswellAlta 223 (C.A.), refd to. [para. 86].

R. v. Anderson, [1990] 1 S.C.R. 265; 105 N.R. 143; 64 Man.R.(2d) 161, refd to. [para. 90].

R. v. Willock (C.) (2006), 212 O.A.C. 82; 210 C.C.C.(3d) 60 (C.A.), refd to. [para. 90].

R. v. Roche, [1983] 1 S.C.R. 491; 47 N.R. 217, refd to. [para. 93].

R. v. Gratton (A.L.) (2003), 341 A.R. 201; 2003 CarswellAlta 1241 (Q.B.), refd to. [para. 96].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 97].

R. v. Ruzic (M.), [2001] 1 S.C.R. 687; 268 N.R. 1; 145 O.A.C. 235, refd to. [para. 98].

R. v. Proudlock (1978), 24 N.R. 199; 43 C.C.C.(2d) 321 (S.C.C.), refd to. [para. 101].

R. v. Baker (N.A.) (2006), 211 O.A.C. 285; 81 O.R.(3d) 276 (C.A.), refd to. [para. 102].

R. v. McColl (M.V.) (2008), 437 A.R. 81; 433 W.A.C. 81 (C.A.), refd to. [para. 107].

Counsel:

Janice Rea (Calgary Crown Prosecutor's Office), for the Crown;

Allan Fay (Fay Archer), for the accused.

This case was heard between October 14 and 24, 2008, by Eidsvik, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on November 19, 2008.