R. v. Puvtoski, 2014 ONCJ 658 (CanLII)

Date: 2014-12-04

Facts

A collision between a motorcycle driven by Ms. Lisa Grey and a minivan driven by Mr. Milko Puvtoski (the Defendant) at the intersection of William Kitchen Boulevard and Kennedy Road in Scarborough occurred at approximately 3:15 AM on May 5, 2012.

A paramedic with Toronto Emergency Medical Services had observed the collision. In the paramedic’s first statement to police, he believed that the motorcycle had entered the intersection on a red light. However, in a subsequent statement, the paramedic stated that he was unsure if Ms. Grey had entered the intersection on an amber or a red light.

Ms. Grey had no memory of the collision.

At 6:29 AM and at 6:51 AM, Mr. Puvtoski provided breathalyser samples which gave blood alcohol concentrations (BAC) of 0.116 and 0.115, respectfully.

On the balance of the evidence, the judge found Mr. Puvtoski’s guilty of impaired driving.

Crown Counsel’s Human Factors Position

Ms. Teri Martin, a toxicologist from the Centre of Forensic Sciences, extrapolated breathalyser samples taken from Mr. Puvtoski to be in the range of 0.125 to 0.180 BAC at 3 AM and 0.120 to 0.170 BAC at 3:30 AM. Ms. Martin opined that Mr. Puvtoski would have been impaired at a BAC of 0.080 based upon the literature and her own research. “Ms. Martin explained that driving is a divided-attention task that is extremely sensitive to the impairing effects of alcohol, which is a central nervous system depressant that causes sedation. This would inevitably impact negatively on one’s reaction-time choices when behind the wheel.”

Defendant’s Human Factors Position

Mr. Sam Kodsi, an engineer, provided evidence about accident reconstruction and driver perception and response. Mr. Kodsi’s focus was to determine if a typical driver in the physical circumstances of this collision had sufficient time to respond. Mr. Kodsi described the starting point of perception response time as “the beginning of perception where the object is easily identified as an immediate hazard requiring response”.

On the assumption that the motorcycle had entered the intersection on a red light, (the paramedic’s first statement to police), Mr. Kodsi opined that for a typical driver the collision was unavoidable given the circumstances. However, on the assumption that the motorcycle had entered on an amber light or just after it turned red (the paramedic’s subsequent statement), Mr. Kodsi opined that Mr. Puvtoski ought to have slowed down and had been travelling too fast and implied an inference of diminished awareness.

Using data recovered from the black box from the defendant’s vehicle, Mr. Kodski estimated that Mr. Puvtoski’s speed five seconds before impact was 55-56 km/h and that he had applied his brakes only one-second prior to impact.

Judge’s Rational

The judge was not satisfied to near certainty that Ms. Grey had entered the intersection on an amber light.

Nonetheless, the judge found that Mr. Kodsi’s estimate of 55-56 km/h while approaching a red light to be too fast for the conditions, combined with the breathalyser reading was evidence of diminished awareness on the part of Mr. Puvtoski.

Most of the judge’s decision focused upon issues related to whether the Defendant’s Charter rights had been violated with respect to his detainment, whether the police had reasonable suspicion to suspect that Mr. Puvtoski had alcohol in his system, and whether Mr. Puvtoski was given the timely right to counsel.