2003BCSC1861

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*HMTQ v. Fowler,*
	2003 BCSC 1861

Date: 20031212
Docket: 69110-3

Registry: Kamloops

Between:

Her Majesty the Queen

And

William Stuart Fowler

Before: The Honourable Madam Justice D. Smith

Reasons for Judgment

Counsel for the Crown:	D. Mann
Counsel for the Accused:	F. Kaatz
Date and Place of Trial:	November 18–21, 24–27, December 4, 2003
	Kamloops, B.C.

I. INTRODUCTION

[1] William Stuart Fowler, age 27, is charged with three offences: Count 1 - impaired driving causing bodily harm (s. 255(2)); Count 2 - care and control of a motor vehicle while over .08 (s. 253(b)); and, Count 3 - dangerous driving causing bodily harm (s. 249 (3)). Counts 1 and 3 allege bodily harm to two victims.

[2] The charges arise out of an incident in the early morning hours of January 17, 2002, at Barriere, B.C., after Mr. Fowler left a local bar around the 1:30 a.m. closing time. Thereafter, he allegedly hit two persons with his motor vehicle while making a number of U-turns on the main road into the downtown area. He was arrested at the scene of the incident for impaired driving and was taken to the nearby police detachment where he was given a breathalyser test. The results of that test indicated he had a blood alcohol level of .10 and .09 at 3:00 a.m. and 3:24 a.m. respectively.

[3] A more careful examination of the circumstances leading up to and involving the incident suggests a limited investigation into the circumstances surrounding the events of that evening. Although at least three individuals participated in a number of very serious assaults upon Mr. Fowler, which included anywhere from 16 to 20 blows and/or kicks to his head, none were criminally charged for their actions. The attacks were unprovoked. They caused Mr. Fowler significant head and facial injuries including a concussion. Any one of the blows could have caused him permanent injury if not death. Cumulatively they constituted a vicious and savage assault upon Mr. Fowler.

[4] The frequency of unprovoked group assaults appears to be increasing in our society. Deterring such potentially deadly conduct would be assisted if appropriate action were taken against the perpetrators of that conduct.

I. BACKGROUND FACTS

[5] Mr. Fowler is a resident of Barriere where he has lived most of his life. He completed grade 11 following which he was employed in a variety of jobs. At the time of this incident he had been working for about a year as a clerk for A.G. Foods. Following the incident he was unable to work for eight to nine months due to his physical injuries. He returned to school as a mature student at the University College of the Cariboo where he is currently enrolled in his second year.

[6] Mr. Fowler is slight of build having been underweight most of his life. He was born with a scoliosis in his back. As a child he suffered from ADHD. As an adult he has been diagnosed as having a social anxiety disorder. He also takes medication for high blood pressure. He presents as a soft spoken, somewhat anxious, and unassuming young man.

[7] On January 16, 2002, Mr. Fowler was released early from work. At about 1:00 p.m., he and his girlfriend, now wife, travelled to Kamloops. They returned at about 8:00 p.m. Mr. Fowler dropped his girlfriend off at her home as she was not feeling well. He then met up with his close friend and co-worker, Allan Heely. Together they went to the local bar. They arrived there at about 8:30 p.m.

[8] Two other friends, Justin Crystall, age 30, and Jason Walsch, were already at the bar and had purchased a pitcher of rye and 7-Up. A pitcher contains about five ounces of alcohol and holds about five glass-size drinks.

[9] Mr. Fowler and Mr. Heely joined their friends. Over the evening, Mr. Fowler ordered two or three additional pitchers of rye and 7-Up, which were shared by all four men. Mr. Fowler said he drank four, at the most five, glasses of rye and 7-Up from the pitchers. He said he evenly spaced his drinks over the evening so as not to become intoxicated.

[10] Christine Nystorek, age 25, and Priscilla Cardinal, age 26, were also at the bar that evening with Ms Cardinal’s mother. Both women socialized with others who were there. Barriere is a small community and most of the residents know one another. Mr. Fowler also was acquainted with Ms Nystorek and Ms Cardinal.

[11] Although Mr. Fowler’s group kept largely to itself, Ms Nystorek joined them for a drink. Mr. Fowler also sent a drink to Ms Cardinal and her mother at their table.

[12] About 11:30 p.m., Tyler Buchanan, age 24, and Barry Zaharoff, age 24, entered the bar. They had previously been at a friend’s house where they had been drinking. Mr. Buchanan thought he had had about three to four beer at the friend’s house. He estimated he had another three to four beer while at the bar. He admitted that he might have been a little drunk. Mr. Zaharoff thought he had about two beers at the bar. He could not remember where he had been or what he had to drink before they arrived.

[13] Mr. Fowler had never dealt with either man before but he knew of them. Mr. Buchanan had a reputation for being violent. He also had a poor, if not selective, memory while giving his testimony. On several occasions his credibility was impeached. Mr. Zaharoff also had a poor memory. He has a disability that affects his level of comprehension and has difficulty processing verbal communications that contain large words. He is unable to read. He had considerable difficulty giving his testimony and struggled to recall the events in question.

[14] For some unknown reason, Mr. Buchanan and Mr. Zaharoff were intent on picking a fight with Mr. Fowler that evening. The server, Janice Nicholson, described their behaviour as “aggressive”. Mr. Zaharoff repeatedly hurled verbal insults at Mr. Fowler calling him a “wimp” and a “wussy”. He insisted on fighting Mr. Fowler. When Mr. Fowler declined, Mr. Zaharoff accused him of not being man enough to fight.

[15] Throughout the evening Mr. Fowler tried to avoid any confrontation with the two men. He did not respond to Mr. Zaharoff’s insults or threats. He even offered to buy him a beer to calm him down. However, Mr. Zaharoff’s aggressive behaviour escalated and on two occasions he intentionally pushed Mr. Fowler. Toward the end of the evening Mr. Buchanan came up to Mr. Fowler and told him that he and Mr. Zaharoff wanted to fight him outside the bar. Ms Nicholson threatened to call the police unless they all left the bar.

[16] Last call for drinks was at 1:00 a.m. At that time Mr. Fowler was talking with Ms Nystorek. She agreed to have a drink with him and he gave her some money to purchase their drinks. He said she took quite a while to return with the drinks and he even thought she might have left the bar. She eventually returned with two “Gladiators”. A Gladiator is a two ounce shooter of alcohol which is added to a glass of orange juice. Mr. Fowler said he and Ms Nystorek downed the Gladiators because the bar was closing. He then finished the almost full glass of rye and 7-Up remaining on his table.

[17] Ms Nystorek had about five or six drinks that evening. She did not remember having a shooter with Mr. Fowler or Mr. Fowler buying a shooter for Ms Cardinal. She also did not remember having a drink at Mr. Fowler’s table until she was reminded of it on cross-examination. She thought Mr. Buchanan had only one beer at the bar when he admittedly had three or four. She did recall that Mr. Buchanan and Mr Zaharoff had threatened Mr. Fowler in the bar and that Mr. Fowler had repeatedly ignored or walked away from them.

[18] Ms Cardinal had two “Paralyzers” or double vodkas during the evening. On cross-examination she remembered drinking another shooter that Mr. Fowler bought for her and sent to her table. She said that when she left the bar at about 1:15 a.m. she was feeling good. It was her opinion that Mr. Fowler was more drunk than she was because his face was flushed, he spoke loud and fast, and he seemed off balance. She did not observe any confrontation between Mr. Fowler and Mr. Buchanan or Mr. Zaharoff, although all of the other witnesses present at the bar were aware of the tension between the men.

[19] Ms Cardinal’s credibility was seriously impeached during her testimony. On at least 11 occasions she admitted to prior inconsistent statements and revised her evidence at trial accordingly. She admitted to “upping” an estimate of time at trial from her evidence at the preliminary hearing because her earlier evidence “didn’t sound long enough”. She made assumptions about Mr. Fowler’s motivations and actions, and appeared to tailor her evidence to support those assumptions. She also admitted to being angry toward Mr. Fowler and acknowledged that she had commenced a civil action against him for damages for alleged injuries she sustained as a result of the incident. Her anger, in my view, clouded her impartiality and affected the reliability of her evidence.

[20] In comparison, Mr. Chrystall’s testimony was more balanced and impartial. He was a credible witness who gave his evidence without embellishment and in a forthright manner. As a result, in my view his evidence more reliable. Both he and Ms Nicholson described Mr. Fowler as appearing “fine” at the end of the evening. Neither observed any apparent effects of alcohol on him. Ms Nicholson said Mr. Fowler was not slurring his words or staggering. Both confirmed that Mr. Fowler appeared scared and frightened by Mr. Buchanan and Mr. Zaharoff’s confrontational behaviour.

[21] Mr. Fowler said he was afraid to leave the bar in case the two men followed him into the parking lot to beat him up. He stayed until Ms Nicholson flashed the lights indicating the pub was closing and then slipped out of the bar by the side door. Ms Nicholson confirmed that Mr. Fowler left the bar at around 1:30 a.m. Although he had asked her to call the police because he was afraid of what might happen to him in the parking lot, she did not do so.

[22] Mr. Fowler walked a short distance to his car in the parking lot. He intended to drive Mr. Heely home, which was about a kilometre north on Barriere Town Road. He did not have enough room in his car to take his other two friends but planned to pick them up and return with them to Mr. Heely’s where they were going to hang out together.

[23] Mr. Buchanan followed Mr. Fowler to his car. Mr. Zaharoff went to Mr. Buchanan’s car where he removed his sweater. Underneath his sweater he was wearing a white T-shirt with his jeans. He said he removed his sweater because he was hot, although winter conditions were prevalent and the outside temperature was cool. He then joined Mr. Buchanan at Mr. Fowler’s car.

[24] As Mr. Fowler got into his car he thought he heard a noise behind him. He turned his head and saw Mr. Buchanan standing directly behind him. Mr. Buchanan punched him very hard on the side of his head. Mr. Fowler did not respond. Instead, he continued to get into his car but Mr. Buchanan again punched him in the side of the head. As Mr. Fowler drove off Mr. Buchanan yelled at him. Mr. Fowler yelled back to just let it go.

[25] After Mr. Fowler dropped off Mr. Heely, he returned in the southbound lane of Barriere Town Road to pick up Mr. Chrystall and Mr. Walsch. He saw them, along with Ms Cardinal, walking north on the road and pulled over onto the shoulder to talk to them. There was no other vehicular or pedestrian traffic in the area that evening.

[26] One to two minutes later Mr. Buchanan drove up in the northbound lane of Barriere Town Road. Mr. Chrystall said Mr. Buchanan was speeding and that he slammed on his brakes before stopping his car parallel to Mr. Fowler’s vehicle and at an angle, partially in the northbound and partially in the southbound lane. With him were Mr. Zaharoff in the front passenger seat and Ms Nystorek and another male in the rear passenger seats. Mr. Buchanan had driven Ms Nystorek home but when she learned that he was going to look for Mr. Fowler she decided to go with him.

[27] After stopping, Mr. Buchanan got out of his vehicle leaving the driver’s door open. Although Mr. Zaharoff said he remained in the car at that time, other witnesses confirmed that he exited the vehicle at the same time as Mr. Buchanan. He too left his passenger door open. Both men walked toward Mr. Fowler’s vehicle. Mr. Fowler said Mr. Buchanan appeared to be rushing toward him and he became scared. Mr. Chrystall was also nervous and anticipated that Mr. Buchanan and Mr. Zaharoff were there to fight. He and his friend told Mr. Fowler to leave immediately as they did not want to become involved in a fight.

II. THE INCIDENT

[28] The two vehicles were parked along a straight stretch of Barriere Town Road that travelled in a north/south direction. It had snowed earlier but the street had been cleaned and the road markings were visible. The area was not well lit but visibility was reasonably good because of outdoor lighting from a nearby church and the vehicles’ headlights. The posted speed limit was 50 kph.

[29] Mr. Fowler had stopped his vehicle on the west shoulder of the road. It was parked about 100 meters south of the police detachment which is located on the east side of the road. A short distance further south, also on the east side of the road, is a church. The church has a large parking lot with both a north and south entrance fronting Barriere Town Road.

[30] As Mr. Buchanan and Mr. Zaharoff approached Mr. Fowler’s vehicle, Mr. Fowler drove off at about 20–30 kph. He headed south on Barriere Town Road. About 100 feet down the road he made a U-turn to head back in the direction of his home on East Barriere Lake Road, some 16 kilometres north of Barriere.

[31] He travelled in the northbound lane at about 20–30 kph. By then a number of people were standing about the rear of Mr. Buchanan’s vehicle. To avoid them Mr. Fowler crossed over the broken centre lane and into the southbound lane. He passed Mr. Buchanan’s vehicle without incident and pulled back into the northbound lane as he continued to drive north at about 20–30 kph.

[32] A short distance further, near the police detachment, he noticed his gas gage was on empty. He did not think he had enough gas to drive home. He said he was very scared and afraid that if he ran out of gas on the isolated stretch of road near his home that Mr. Buchanan and Mr. Zaharoff might follow him and physically attack him. As the nearest gas station was just south of where he had previously stopped, he made a second U-turn and drove back toward the group in the southbound lane at about the same speed.

[33] In the meantime, the group milling about Mr. Buchanan’s vehicle had moved into the southbound lane. After making his second U-turn, Mr. Fowler paused for a moment. Mr. Chrystall thought he stopped for a second; Ms Nystorek thought 5 to 10 seconds; Ms Cardinal said 30 seconds, which she admitted to having “upped” from her evidence at the preliminary hearing where she estimated it at two seconds. Mr. Fowler drove back toward Mr. Buchanan’s vehicle in the southbound lane.

[34] Mr. Fowler said that he drove slowly down the southbound lane. As he approached Mr. Buchanan’s vehicle he veered to the left, in front of Mr. Buchanan’s vehicle, and into the northbound lane in order to avoid the group of people milling about in the southbound lane. He said he passed Mr. Buchanan’s vehicle on the passenger side at a speed of about 20–30 kph.

[35] Mr. Chrystall said Mr. Fowler paused briefly after his second U-turn, before he gassed his vehicle and accelerated down the road. He observed Mr. Fowler’s vehicle veer to the left as it approached Mr. Buchanan’s vehicle and move into the northbound lane. He said Mr. Fowler appeared to be heading directly toward Mr. Buchanan’s vehicle but passed the vehicle on its passenger side in the northbound lane.

[36] Mr. Chrystall thought Mr. Fowler was going to hit Mr. Buchanan’s vehicle. Other witnesses also thought Mr. Fowler was headed directly toward Mr. Buchanan’s vehicle. Mr. Zaharoff thought Mr. Fowler’s vehicle looked like it was out of control and veering sideways toward Mr. Buchanan’s vehicle. Ms Nystorek and Ms Cardinal thought Mr. Fowler’s driving reflected an intention to deliberately run down Mr. Zaharoff.

[37] Mr. Chrystall said Mr. Fowler accelerated past Mr. Buchanan’s vehicle on its passenger side at about 25–30 kph, slightly faster than when he had passed the group in the northbound lane for the first time. Both Ms Nystorek and Mr. Chrystall said Mr. Fowler had lots of room to pass Mr. Buchanan’s vehicle on the passenger side as there was more than a car width between it and the east shoulder of Barriere Town Road.

[38] When Mr. Fowler’s vehicle veered into the northbound lane and appeared headed directly for Mr. Buchanan’s vehicle, someone in the group yelled to get out of the way. Mr. Zaharoff made a dash toward the church parking lot. He admitted he was not paying attention to the road as he made his dash. He was hit in his left leg as Mr. Fowler’s vehicle passed Mr. Buchanan’s vehicle in the northbound lane. The impact caused Mr. Zaharoff to be tossed into the air. He landed in the middle of the road near the south entrance of the church parking lot. He thought Mr. Heely dragged him to the side of the road after he was hit.

[39] As Mr. Fowler neared the south entrance to the church parking lot, he saw out of his peripheral vision something white hit the passenger side of his vehicle. He thought someone might have thrown something at his car. He also thought he might have hit someone. He drove a short distance down the road and made a third U-turn in order to return and see what had hit his vehicle.

[40] He drove back in the northbound lane toward Mr. Buchanan’s car at about 20–30 kph. The group was milling about the rear of Mr. Buchanan’s vehicle around Mr. Zaharoff. As he passed Mr. Buchanan’s vehicle in the southbound lane he saw the feet of a person lying on the ground near the rear of the vehicle.

[41] Mr. Fowler realized that he had hit someone. He passed the crowd, made a fourth U-turn near the police detachment, and drove back to the scene in the southbound lane to await the police. He said that he drove slowly along the west shoulder of the southbound lane but veered into the snow bank when Ms Cardinal jumped out in front of his vehicle.

[42] Ms Cardinal was standing in the southbound lane. Just as Mr. Fowler was stopping his vehicle, she ran out in front of his car with her hands up. She jumped up onto the hood and was screaming at him. She slammed her knees and hands against the windshield of his car before rolling off the hood and landing on the road.

[43] Ms Cardinal estimated Mr. Fowler’s speed as he approached her at 30–40 kph. However, she admitted that she does not drive. Ms Nystorek estimated his speed at about 10 kph. Mr. Chrystall said Mr. Fowler’s car was stopped.

[44] After Mr. Fowler had stopped his vehicle, Ms Nystorek ran up and began pounding on his driver’s side window. Mr. Fowler rolled down his window. He was upset. He told her that he did not mean to hit anyone and that it was an accident. Ms Nystorek responded by punching him in the head several times. Ms Cardinal joined Ms Nystorek and also punched Mr. Fowler several more times in the head. Both women admitted to hitting Mr. Fowler two times each. Mr. Fowler said they punched him at least five times.

[45] Ms Cardinal left to call 911 from her nearby home. As she entered her kitchen she noted the time on the clock at 1:45 a.m. She estimated she was gone about 15 minutes.

[46] After being punched by the two women, Mr. Fowler saw Mr. Buchanan approaching his vehicle. He became alarmed, got out of his vehicle and started running away. He said he feared for his life. Mr. Buchanan chased him into the bushes behind a nearby building just north of where Mr. Fowler had stopped his car. He tackled Mr. Fowler to the ground, turned him over, and proceeded to pummel his face. Mr. Buchanan admitted to punching Mr. Fowler in the face about six times.

[47] Mr. Walsch followed Mr. Buchanan into the bushes and pulled Mr. Buchanan off of Mr. Fowler. Ms Nystorek also followed Mr. Buchanan into the bushes. While Mr. Fowler was on the ground being pummelled by Mr. Buchanan she kicked Mr. Fowler in the head with her boot about half a dozen times.

[48] Mr. Fowler said he briefly lost consciousness while Mr. Buchanan was beating him. He remembered seeing Ms Nystorek’s boot coming at him but has only islands of memory of events thereafter. He remembered being dragged back to the road over the gravel and sustaining numerous scratches and scrapes to his face. His two friends helped him up to his car. He remembered trying to steady himself by holding onto the hood as he could not see out of his right eye. He said Mr. Buchanan came up from behind him and slammed his head into the hood. He does not remember much of what occurred after that.

[49] Mr. Buchanan denied that he slammed Mr. Fowler’s head into the hood of his vehicle. Nor did Ms Nystorek or Ms Cardinal recall that happening. However, the photographs of Mr. Fowler’s vehicle indicated blood on the hood and no other witnesses reported injuries that resulted in bleeding.

[50] Cst. Strohschein received a call regarding a hit pedestrian on Barriere Town Road at about 1:55 a.m. He was just finishing his shift. He arrived at the scene at about 2:00 a.m. He said he drove up and stopped his vehicle in front of the male lying on the road. Ms Nystorek came running up to his driver’s side window, which was rolled down, and said to him, “Billy needs to go to jail for this.” After he got out of his vehicle, Mr. Fowler who was directly behind Ms Nystorek said to him, “I didn’t mean to hit him. It was an accident. I was just trying to get away from them as they were trying to kill me.”

[51] While Mr. Fowler was speaking, the officer noted that he had a gash over his right eye that was bleeding, a swollen right cheek and the start of swelling in his right eye. He also noted a strong odour of alcohol on his breath, somewhat slurred speech, and some unsteadiness on his feet. He concluded from these observations that Mr. Fowler had operated a motor vehicle within the previous two hours while his ability to do so was impaired. He promptly arrested Mr. Fowler for impaired driving. After he searched him, he handcuffed him and placed him in the rear of the police vehicle.

[52] On cross-examination, Cst. Strohschein said the symptoms he observed with Mr. Fowler were similar to those of other impaired drivers he had dealt with during his 18 years as a police officer. When challenged on this statement he agreed there was a spectrum of symptoms for impaired drivers ranging from slight to more significant. He also admitted that he was not aware of the symptoms for concussion, but did not believe Mr. Fowler’s injuries were serious enough to have caused what he believed were symptoms of impairment. He did not conduct any sobriety tests.

[53] Cst. Strohschein described the scene as chaotic and the mood of the group aggressive. Persons were yelling and boisterous. Some insisted that Mr. Fowler had tried to kill Mr. Zaharoff by deliberately swerving his vehicle into him. All appeared to have been drinking.

[54] After placing Mr. Fowler into custody, Cst. Strohschein continued with his investigation at the scene. He checked on Mr. Zaharoff who had a broken leg but otherwise did not appear to be seriously injured as he was laughing and joking. He called for an ambulance and a tow truck. He took photographs of the scene. He did not observe any skid marks or indication of a vehicle having been driven at a high rate of speed. He noted a dent on the hood of Mr. Fowler’s vehicle above the passenger side headlight and some blood near the right centre of the hood. He spoke to the witnesses at the scene and obtained their names, addresses and phone numbers.

[55] The photographs taken by Cst. Strohschein showed the passenger side-view window had been pushed in, the windshield on the passenger side was cracked, there was a slight dent on the hood just below the windshield on the passenger side, and the passenger side antenna and windshield wiper were broken.

[56] There was a large dent on the hood of Mr. Fowler’s vehicle just above the passenger side headlight and fender. To the centre right of the hood was a spot of blood. As well, the low beam headlight on the driver’s side of Mr. Fowler’s vehicle was not functioning.

[57] Although none of the witnesses could attest to the condition of Mr. Fowler’s vehicle before the incident, many were quick to assume that the collision with Mr. Zaharoff had caused the large dent above the passenger side headlight. That dent, however, had occurred shortly after Mr. Fowler had purchased the vehicle, well before the incident, when he and a friend were changing a tire on the vehicle. Mr. Fowler said he forgot to set the brake and the jack fell back onto the hood. He pointed to a peak in the hood beside the dent where he had unsuccessfully tried to hammer the hood back into place. His friend who assisted him corroborated the incident. The photographs of the large dent were consistent with their evidence about how that damage had occurred.

[58] As well, Mr. Fowler said the low beam headlight had not been working for some time before the incident.

[59] The photographs also indicated a set of dark tire tracks leading up to Mr. Fowler’s parked vehicle in the snow bank. The tracks travelled in a southerly direction along the west shoulder of the road and then veered suddenly off into the snow bank. These photographs were consistent with Mr. Fowler’s version of his driving after the last U-turn.

[60] The photographs also showed a spot of blood on the hood of Mr. Fowler’s vehicle. They too were consistent with Mr. Fowler’s evidence that Mr. Buchanan had slammed his head into the hood of the vehicle.

[61] Cst. Strohschein’s investigation continued for about 30 minutes. During that time Mr. Fowler attempted to get his attention by pounding his head against the window of the police vehicle. Mr. Fowler said he did that as he was in a lot of pain, could only see out of one eye, had blood running down his face, and his arms and legs were numb.

[62] When Cst. Strohschein returned to his vehicle, Mr. Fowler asked him to look at his face. The officer shone his flashlight on it and noted that the swelling on Mr. Fowler’s right cheek had increased substantially, his right eye had swollen shut, and his one open eye was bloodshot and watery. He said the pupil of the open eye was dilated and unresponsive to light, which in his opinion was another common symptom of impairment.

[63] Cst. Strohschein removed Mr. Fowler from the vehicle and asked one of the ambulance attendants to examine him. The attendant suggested that Mr. Fowler go with them to the hospital as he thought Mr. Fowler might have a broken jaw. However, Mr. Fowler declined and signed a waiver refusing any treatment. At trial, Mr. Fowler did not have a clear recollection of his interaction with the ambulance attendant. He said he thought he might have been afraid to travel with Mr. Zaharoff in the ambulance.

[64] En route to the police detachment, Cst. Strohschein said Mr. Fowler asked him if he would lay assault charges against those who had beaten him. The officer told Mr. Fowler that he first had to give him a breathalyser test to which Mr. Fowler responded by admitting he was impaired. At trial, Mr. Fowler said he remembered nothing of this conversation.

[65] At the detachment, Cst. Strohschein took Mr. Fowler to the breathalyser room. Before conducting the test, he asked Mr. Fowler a number of questions from a form “C256”. Mr. Fowler answered the questions and Cst. Strohschein wrote down his answers on the form. He noted that Mr. Fowler was injured but not from the motor vehicle accident; that he was the operator of the white Nissan motor vehicle; that he had not had any alcohol since the accident; that he was a diabetic and took insulin; that he had taken a 200 mgs pill at about noon that day with his last meal of bacon, eggs, toast and hash browns; that he had had three to four drinks at the bar evenly spaced over the evening; that he had his last drink at about 11:00 p.m.; and, that he had driven from the bar. Mr. Fowler also provided some personal information including his weight at 82 kilograms or 180 pounds.

[66] On the C256 form, Cst. Strohschein recorded his observations of Mr. Fowler beside the following headings: breath – strong odour of alcohol; face – flushed, swollen (from blows); speech – talkative, slight slurring; eyes - bloodshot, watery, dilated pupils; clothes – orderly, pants damp; attitude – polite and cooperative; unusual actions – none observed; balance – slight swaying; walking – some unsteadiness; turning – none observed.

[67] Mr. Fowler took the breathalyser test and blew .10 and .09 at 3:00 a.m. and 3:24 a.m. respectively. Cst. Strohschein served him with a 24-hour driving prohibition and made arrangements for him to be picked up at the detachment by his girlfriend. He released Mr. Fowler on a Promise to Appear for the next day, January 18, 2002, to be photographed and fingerprinted on charges of impaired driving, over .08, and assault causing bodily harm.

[68] Before leaving the detachment, Cst. Strohschein completed the Report to the Superintendent of Motor Vehicles. On the report he noted that Mr. Fowler exhibited a strong odour of alcohol, a flushed face, watery and bloodshot eyes, and dilated pupils. He did not record any description of Mr. Fowler’s speech or balance. On cross-examination he attributed that oversight to fatigue.

[69] At trial, Mr. Fowler did not remember any of his dealings with Cst. Strohschein from the time he was driven to the detachment until the next day when he attended at the police station to be photographed and fingerprinted. He said that many of his recorded answers on the C256 form were inaccurate. As an example, he pointed to the note regarding his weight. He has never weighed 82 kilograms or 180 pounds. At the time of the incident he weighed between 145 and 155 pounds. He is also not a diabetic and does not take medication for diabetes. He had no memory of his girlfriend picking him up at the detachment. He remembered being surprised and confused by the inside of the detachment when he attended there the next day.

[70] When Mr. Fowler returned to be photographed and fingerprinted on January 18, 2002, Cst. Strohschein noted that he no longer had an odour of alcohol on his breath, was steadier on his feet, and his speech was clear. He served Mr. Fowler with the Certificate of Analysis of the breathalyser test results and explained to him that the Certificate would be used at his trial as proof of his blood alcohol level at the time of the tests.

IV. THE INJURIES

[71] Mr. Fowler attended at the local clinic in Barriere the afternoon of January 17, 2002. There he was examined by Dr. Jack, a general practitioner of almost 40 years experience. Dr. Jack confirmed that Mr. Fowler presented as having received a serious beating about the head.

[72] Mr. Fowler complained to him of headaches and was vague about what happened. He had a vacant or glassy-eyed look, was unable to answer questions appropriately, and appeared reserved and withdrawn. Dr. Jack noted that he had difficulty walking. His balance was off, he staggered and he needed assistance to hold himself upright. He also noted that Mr. Fowler had lost the coordination in his left arm and leg.

[73] In Dr. Jack’s opinion, Mr. Fowler had suffered a concussion from the beating. He was concerned that Mr. Fowler might have sustained a subdural haematoma, which can be life-threatening. He immediately referred him to a neurosurgeon at Royal Inland Hospital in Kamloops where a C.A.T. scan confirmed that Mr. Fowler had sustained an extra cranial haematoma on the right side of his skull but not the more serious subdural haematoma.

[74] Dr. Jack identified symptoms of concussion as including: headaches, dizziness, slurred speech, light sensitivity, loss of consciousness, nausea, vertigo, lurching, difficulty keeping one’s balance, lack of coordination, and inappropriate responses which could be mixed with appropriate responses.

[75] He stated that concussion causes diffuse trauma to all parts of the brain, which often results in an altered state of consciousness. He added that memory is affected by concussion and that a person may be confused and present in a variety of different ways, including having the appearance of normality but still having memory problems.

[76] Mr. Fowler said he continues to experience some long-term effects from his injuries. Over the past year he has had difficulty walking. He also has experienced numbness on his right side which has caused him to twist and sprain his right ankle on several occasions.

[77] Mr. Zaharoff also sustained a serious injury as a result of the incident. He was taken by ambulance to Royal Inland Hospital at Kamloops where he was admitted and remained for the next two to three weeks. His leg was broken in four places. He required several surgeries to install hardware into his leg. He also required a skin graft over the surgical sites. He was unable to walk for a couple of months and required crutches for several more months. He no longer can work as a ranch hand and requires a further operation to remove the screws from his knees. He says his leg swells if he runs and is sensitive to the cold.

[78] Ms Cardinal said that at the time of the incident she was not injured. Ms Nystorek did not see any injuries on her and said Ms Cardinal appeared fine the next day except for a couple of bruises on her arm. When she saw Ms Cardinal from time to time thereafter, she said that on each occasion Ms Cardinal seemed fine.

[79] Ms Cardinal stated that the day after the incident she had pain in her right shoulder and arm and experienced limited mobility in her arm over the next several months. On October 3, 2002, she saw Dr. Calder, a physiatrist. Dr. Calder conducted some tests but found no objective evidence to support Ms Cardinal’s complaints of injury. She noted some very mild changes in the muscles of her right forearm and leg but stated the changes were clinically insignificant. In her opinion, Ms Cardinal’s subjective complaints were consistent with her reported injuries from the incident but could also be attributable to de-conditioning, which likely pre-existed the incident but also could have been secondary to the injuries from the incident.

V. THE ALCOHOL ANALYST

[80] Brian Image, an alcohol analyst, gave opinion evidence regarding Mr. Fowler’s blood alcohol level at the estimated time of his driving between 1:40 a.m. and 1:55 a.m. In his opinion, Mr. Fowler’s blood alcohol level at that time was in the range of .105 and .120, with a margin of tolerance or error of .01 on either side of the readings.

[81] Mr. Image’s retrograde extrapolation of Mr. Fowler’s blood alcohol level to his estimated time of driving was calculated from Mr. Fowler’s blood alcohol readings of .10 and .09 at 3:00 a.m. and 3:24 a.m. respectively. His opinion was based on two assumptions: (i) that Mr. Fowler had not consumed any alcohol within 30 minutes of his estimated time of driving; and, (ii) Mr. Fowler had a normal alcohol elimination rate of between 10–20% an hour.

[82] On cross-examination, Mr. Image agreed that his calculation of Mr. Fowler’s blood alcohol level at the time of the alleged offence would be different if Mr. Fowler had consumed alcohol within 30 minutes of his driving. He stated that if Mr. Fowler had consumed 1.5 ounces or more of 40% alcohol within 30 minutes of driving, at a weight of 155 pounds, his blood alcohol level could have been at .08 or less at the relevant time. The lower blood alcohol level could occur because the alcohol in Mr. Fowler’s stomach would not yet have been absorbed into his blood stream and therefore his blood alcohol level would still have been rising at the estimated time of his driving.

[83] Mr. Image also commented on the general effects of alcohol consumption. He said that alcohol is a depressant and as such interferes with mental and motor functions. It affects comprehension, peripheral vision, attention, judgment and reaction time. At a blood alcohol reading of less than .10, he explained that not everyone exhibits symptoms of impairment depending on the amount of their alcohol consumption and degree of tolerance to alcohol. However, at over .10, symptoms of impairment are common and include watery, bloodshot eyes, flushed face, and an odour of alcohol. He described this as the “zone of impairment”. At over .10, in his opinion, everyone’s ability to operate a motor vehicle is impaired. He further explained that symptoms of intoxication such as slurred speech, unsteadiness in balance or dilated pupils are not generally seen until a person has reached a blood alcohol level of .15 which he described as “the zone of intoxication”.

[84] Mr. Image was unable to give an opinion on whether an intervening event such as a severe beating might create symptoms comparable to those of impairment or intoxication.

VI. DISCUSSION

[85] I propose to first address Count 2 – care and control of a motor vehicle while over .08 - as my decision on that count may impact the evidence to be considered on Count 1.

(b) Count 2 – care and control while over .08

[86] Section 258(1)(c) of the Code states the following:

s. 258.(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under section 253 …

evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, that concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;

[87] “Evidence to the contrary” is evidence that is capable of rebutting the presumption that the blood alcohol level at the time of the breathalyser test is the same as at the time of the alleged offence, where that evidence shows that the accused’s blood alcohol level at the time of alleged offence would have been within the permissible limit: R. v. Hughes (1982), 70 C.C.C. (2d) 42 (Alta. C.A.). In other words, “evidence to the contrary” is evidence of “a material difference … which tends to put the accused within the permitted limit and which might reasonably be true”: R. v. Ewaski, 2003 SKQB 426.

[88] At issue on this count is whether Mr. Fowler has provided “evidence to the contrary” such as to raise a reasonable doubt regarding his blood alcohol level at the estimated time of his driving or care and control of his motor vehicle.

[89] I have estimated Mr. Fowler’s time of driving, or care and control of his motor vehicle, as probably between 1:10 a.m. and 1:40 a.m. I make this finding based on Mr. Fowler’s evidence regarding the length of time it took Ms Nystorek to return with their drinks after the last call at 1:00 a.m., and the time of 1:45 a.m., after the alleged offence, as noted by Ms Cardinal from her kitchen clock upon her arrival home to call 911.

[90] The accuracy or reliability of the Certificate of Analysis, indicating Mr. Fowler’s blood alcohol levels of .10 and .09 at 3:00 a.m. and 3:24 a.m. respectively, were not challenged. However, Mr. Image’s opinion that Mr. Fowler’s blood alcohol level at the estimated time of his driving was over .08 was challenged as it was based on the assumption that Mr. Fowler had not consumed any alcohol within the preceding 30 minutes of his driving. If that assumption is found to be incorrect as a result of “evidence to the contrary”, then a reasonable doubt could be raised about the reliability of his opinion.

[91] The Crown submits that Mr. Fowler’s evidence in regard to his alcohol consumption shortly before leaving the bar should be rejected as not being credible. He submits the court should infer from Ms Nystorek’s failure to recall having a shooter with Mr. Fowler just before the bar closed, that Mr. Fowler’s evidence on this issue is a fabrication. He also submits that it is inconsistent with Mr. Fowler’s stated intention to evenly space his drinks throughout the evening so as to not become intoxicated. As well, counsel submits the court can infer that Mr. Fowler was impaired from Ms Nystorek’s observations of Mr. Fowler in the bar - that he was loud and talkative – and Ms Cardinal’s opinion that he was drunk from her observations of him including a flushed face, loud and fast speech, and off balance.

[92] Credibility or lack of credibility of witnesses can raise a reasonable doubt. That rule of evidence is particularly applicable in this case. In my view, Mr. Fowler proved to be one of the more credible witnesses in this trial. He gave his evidence in a forthright manner and did not attempt to embellish his answers. Nor was he evasive in answering the questions put to him. His credibility was never impeached on cross-examination. Similarly, Mr. Chrystall and Ms Nicholson were both credible witnesses. Both gave their evidence in an impartial and objective manner and corroborated Mr. Fowler’s evidence by stating that he did not appear intoxicated at the bar.

[93] In comparison, many of the Crown witnesses were not very credible. The credibility of both Mr. Buchanan and Ms Cardinal was seriously impeached on cross-examination. Mr. Buchanan was evasive and, in my view, deliberately misled the court about his knowledge of and involvement in the events of that evening. Ms Cardinal embellished her evidence and appeared to tailor it to meet her theory that Mr. Fowler deliberately ran down Mr. Zaharoff. Ms Nystorek had difficulty recalling the details of what occurred that evening, as did Mr. Zaharoff. In my view, the evidence of these witnesses was not very reliable.

[94] Based on my findings of credibility, I accept Mr. Fowler’s evidence of his drinking shortly before the bar closed. I am satisfied that his consumption of two to three ounces of alcohol shortly before the bar closed, occurred within 30 minutes of his estimated time of driving or care and control of his motor vehicle. I also accept Mr. Image’s opinion that consumption of at least 1.5 or more ounces of alcohol within 30 minutes of driving could place Mr. Fowler’s blood alcohol level at .08 or under at the relevant time.

[95] Accordingly, I am of the view that Mr. Fowler has provided “evidence to the contrary”, which raises a reasonable doubt that at the time of the alleged offence he was in care and control of his vehicle while his blood alcohol level was over .08.

(a) Count 1 – impaired driving causing bodily harm

[96] The law on impaired driving was succinctly summarized in R. v. Andrews (1996), 46 C.R. (4^th) 74 (Alta. C.A.). For the majority Conrad J.A. reviewed the decisions of R. v. McKenzie (1955), 20 C.R. 412 (Alta. Dist. Ct.); and, R. v. Stellato (1993), 18 C.R. (4^th) 127 (Ont. C.A.); aff’d [1994] 2 S.C.R. 478. He concluded that although those decisions appeared to conflict with one another they were in fact compatible.

[97] Conrad J.A. reiterated that it is not an offence to drive a motor vehicle after having consumed alcohol so long as it has not affected the individual’s ability to drive. He explained the distinction at ¶18:

Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond a reasonable doubt of slight impairment of the ability to drive. If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs, it is not necessary that the degree of that impairment be marked.

The courts must not fail to recognize the fine but crucial distinction between “slight impairment” generally, and “slight impairment of one’s ability to operate a motor vehicle”. Every time a person has a drink, his or her ability to drive is not necessarily impaired. It may well be that one drink would impair one’s ability to do brain surgery, or one’s ability to thread a needle. The question is whether the person’s ability to drive is impaired to any degree by alcohol or a drug. In considering this question, judges must be careful not to assume that, where a person’s functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired.

[98] At ¶25 Conrad J.A. outlined how impairment of the ability to drive may be proven:

Impairment is a question of fact which can be proven in different ways. On occasion, proof may consist of expert evidence, coupled with proof of the amount consumed. The driving pattern, or the deviation in conduct, may be unnecessary to prove impairment. More frequently, as suggested by Sissons C.J.D.C. in McKenzie, proof consists of observations of conduct. Where the evidence indicates that an accused’s ability to walk, talk, and perform basic tests of manual dexterity was impaired by alcohol, the logical inference may be drawn that the accused’s ability to drive was also impaired. In most cases if the conduct of the accused was a slight departure from normal conduct, it would be unsafe to conclude, beyond a reasonable doubt, that his or her ability to drive was impaired by alcohol. Put another way as was done in Stellato, the conduct observed must satisfy the trier of fact beyond a reasonable doubt that the ability to drive was impaired to some degree by alcohol.

[99] The Crown submits that even if the court does not conclude Mr. Fowler was driving with a blood alcohol reading of over .08 at the relevant time, there is other evidence to support the conclusion that Mr. Fowler’s ability to operate a motor vehicle was impaired when he was driving his motor vehicle. In that regard, counsel refers to Mr. Image’s evidence that consumption of alcohol decreases peripheral vision, judgment and reaction time. Counsel also relies on Ms Nystorek’s and Ms Cardinal’s observations of Mr. Fowler in the bar, as well as those of the police officer at the scene of the incident. Lastly, counsel relies on Mr. Fowler’s own admission to Cst. Strohschein that he was impaired.

[100] However, the evidence of Mr. Fowler’s purported symptoms of impairment from alcohol was extremely varied. For the reasons already stated, I find Ms Nysotrek’s and Ms Cardinal’s evidence on this point to be unreliable. In comparison, I find Mr. Chrystall and Ms Nicholson were credible witnesses and their evidence more reliable. Neither observed any symptoms of impairment in Mr. Fowler. Specifically, they denied seeing evidence of slurred speech or staggering. Ms Nicholson described Mr. Fowler as “fine” when he left the bar.

[101] Cst. Strohschein’s observations of Mr. Fowler’s symptoms of impairment upon his arrest, while honest in his belief, are also of limited value. He did not conduct any sobriety tests. He assumed that the symptoms he observed were the same as all the other impaired drivers he has investigated. More significantly, his lack of knowledge about the symptoms and effects of concussive injuries made him unaware that many of the symptoms he observed could also have been caused by Mr. Fowler’s concussion.

[102] Dr. Jack confirmed that many of those symptoms were comparable to those of a concussive injury, which in his opinion Mr. Fowler had sustained. Cst. Strohschein’s quick assumption that Mr. Fowler’s symptoms were the usual signs of impairment, and not related to the apparent beating he had just received, was perhaps in hindsight precipitous.

[103] Mr. Fowler’s admission to the police officer that he was impaired is also not conclusive of that issue. At the time he had a concussion. He had little if any recollection of what he did or said after Cst. Strohschein arrived at the scene. He gave several inaccurate responses to the questions put to him from the C256 form. In particular, the information he gave to the officer regarding his weight and alleged diabetic condition was incorrect but was information he ought to have known. There was no evidence that Mr. Fowler had tried to deceive the police officer. Rather, Cst. Strohschein described him as polite and cooperative.

[104] In summary, I find the evidence inconclusive as to whether Mr. Fowler’s ability to operate a motor vehicle was impaired by alcohol at the estimated time of his driving. Accordingly, the Crown has failed to prove this count beyond a reasonable doubt.

(c) Count 3 – dangerous driving causing bodily harm

[105] The offence of dangerous driving requires an application of a modified objective test in determining if an accused’s driving represents a marked departure from the standard of care to be expected from a prudent driver in circumstances similar to that of the accused: R. v. Creighton, [1993] 3 S.C.R. 3; and, R. v. Hundal, [1993] 1 S.C.R. 867.

[106] The context in which the alleged offence occurred is critical in the analysis. It requires an examination of all the relevant circumstances in the events surrounding the alleged offence. It also requires a consideration of any explanation offered by an accused for the manner of his driving and whether that explanation raises a reasonable doubt “as to what a reasonable person would have thought in the particular situation in which the accused found himself or herself.”: Hundal at ¶7. In that regard, Cory J. in Hundal stated at ¶38:

Although an objective test must be applied to the offence of dangerous driving it will remain open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused’s conduct. The test must be applied with some measure of flexibility. That is to say the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident.

[107] The Crown acknowledges the several U-turns made by Mr. Fowler do not of themselves constitute dangerous driving. Crown counsel also acknowledges there was no evidence of excessive speed associated with the incident. Indeed, all of the evidence points to Mr. Fowler driving at well below the 50 kph speed limit.

[108] The driving evidence relied upon by the Crown to establish the offence is two-fold: (i) Mr. Chrystall’s evidence that following the second U-turn Mr. Fowler “gassed” his vehicle and accelerated down the road directly toward Mr. Buchanan’s vehicle, and, (ii) that Mr. Fowler drove past the passenger side of Mr. Buchanan’s vehicle in the northbound lane. In short, it was Mr. Fowler’s driving on the wrong side of the road that Crown submits constituted a marked departure from the standard of care of a prudent driver.

[109] The first issue to be determined is whether the Crown has established beyond a reasonable doubt the actus reas of the offence, that is whether Mr. Fowler’s driving constituted a marked departure from the standard of a reasonable person in circumstances similar to that of Mr. Fowler’s.

[110] Mr. Fowler said that after the second U-turn he was driving in the southbound lane toward the gas station. He veered to his left as he approached Mr. Buchanan’s vehicle. He did so in order to avoid Mr. Buchanan’s vehicle which was straddling the centre line and to avoid the crowd that was milling about in the southbound lane.

[111] Most of the witnesses thought Mr. Fowler appeared headed directly toward Mr. Buchanan’s vehicle. That perception was not unreasonable given that Mr. Buchanan’s vehicle was straddling the centre line. However, they also were in agreement that Mr. Fowler was travelling below the speed limit and had more than enough room to pass Mr. Buchanan’s vehicle on its passenger side in the northbound lane. Mr. Fowler’s driving was never out of control or excessive.

[112] Although Mr. Fowler chose to pass Mr. Buchanan’s vehicle on the wrong side of the road in the northbound lane, he did so at a slow speed and in a controlled manner. When he crossed the broken centre line he had an unobstructed view and more than a car width to pass by Mr. Buchanan’s vehicle on its passenger side. Given the position of Mr. Buchanan’s vehicle on the road, and the crowd milling about in the southbound lane, I am of the view that Mr. Fowler’s manner of driving in those circumstances was not a marked departure from the standard of care of a prudent driver.

[113] Furthermore, Mr. Fowler offered an explanation for his passing Mr. Buchanan’s vehicle in the northbound lane, which in my view was reasonable in the circumstances of the earlier aggressive behaviour of Mr. Buchanan and Mr. Zaharoff in the bar, and Mr. Buchanan’s unprovoked assault on Mr. Fowler in the parking lot. Mr. Buchanan and Mr. Zaharoff continued to stalk Mr. Fowler for the sole purpose of instigating a fight with him. Mr. Fowler said he was afraid of these two men, which was corroborated by others. He said he was attempting to avoid them out of fear for his personal safety.

[114] In all of these circumstances, I am not satisfied the Crown has established beyond a reasonable doubt that Mr. Fowler’s manner of driving was a marked departure from the standard of care of a prudent driver in the context of the events in which Mr. Fowler found himself on the evening in question.

[115] In view of my decision on this count, I do not have to consider the issue of whether Mr. Fowler’s driving was the cause of Mr. Zaharoff’s injuries. However, I do note the Crown admits the evidence in regard to Ms Cardinal’s injuries is insufficient to conclude beyond a reasonable doubt that Mr. Fowler’s driving caused Ms Cardinal’s injuries, if any were sustained in the incident.

[116] In the result, Mr. Fowler is acquitted of all three counts in the indictment.

“D. Smith, J.”
The Honourable Madam Justice D. Smith