Judge rules that driver was too drunk to know he’d hit cyclist

A volunteer firefighter was convicted in Ontario, Canada, on Monday of impaired driving causing bodily harm in an October 2012 collision that left a cyclist alone in critical condition at the side of the road. But Trevor Clarke, 37, whose blood-alcohol level at the time was almost four times the legal limit, was spared a second criminal conviction of leaving the scene of an accident because he was too drunk too know he had hit anyone, Justice David Paciocco ruled. “I must, however, find Mr. Clarke not guilty of the failing to stop offense,” the judge said.

“I am left in a reasonable doubt about whether Mr. Clarke knew or was willfully blind to having collided with a person, precisely because he was so drunk. He cannot, therefore, be convicted of this offense, but he can be punished for getting himself to that point of intoxication and thereby harming (the cyclist).” Jennifer Leonard, a 45-year-old nurse, suffered a traumatic brain injury and has no memory of the afternoon crash near Carp, Ottawa. Clarke, at the wheel of a big Ford pickup truck, side-swiped the cyclist from behind. She was hit so hard by the passenger-side mirror that it snapped off. Leonard testified at trial that she still struggles with physical and emotional problems.
Clarke was also found not guilty of driving with a blood-alcohol level over .08 per cent causing bodily harm because the police violated his Charter rights when he wasn’t given full information about his drunk-driving arrest, and again when a constable failed to tell his lawyer that his client was a suspect in a hit-and-run with serious injuries. Clarke’s Charter rights were also breached because police didn’t advise him of his right to a lawyer when detained, and because they questioned him before he had a reasonable opportunity to consult a lawyer. The judge said the serious breaches by police “reflect either unacceptable ignorance of basic Charter rights, or a reckless disregard for those rights.”
The judge also ruled statements that Clarke made to police as inadmissible because of the breaches, and “most significantly” excluded Clarke’s breath samples. “Their admission would bring the administration of justice into disrepute, given the seriousness of the breaches and the fact that he provided those samples after legal advice based on misinformation,” Paciocco ruled. The judge said he convicted Clarke on impaired driving causing bodily harm based on civilian evidence and “the few police observations” that showed he was “significantly impaired” when the crash happened. The judge also noted that it was remarkable that two police officers who initially interviewed Clarke didn’t bother to record any of his answers. Neither officer could recall any of his answers at trial. A sentencing hearing for Clarke, who is free on bail, is scheduled for September.