R. v. Grewal, 2012 ONCJ 771

Court File and Parties

Court File No.: Brampton 10-11219 Date: 2012-07-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kulwinder Grewal

Before: Justice Nancy S. Kastner

Heard on: September 19, 2011, January 4, 2012 and April 24, 2012

Written Submissions in part delivered: Defence May 30, 2012 and Crown June 13, 2012

Reasons for Judgment released on: July 6, 2012

Counsel:

• Ms. Cindy Nadler, for the Crown
• Mr. Douglas Lent, for the accused Mr. Kulwinder Grewal

Kastner J.:

1: INTRODUCTION

1Mr. Grewal is charged with operating a motor vehicle while his ability to do so was impaired and operating a motor vehicle at a time when the concentration of alcohol in his blood exceeded the legal limit. The charges arise from events occurring in the early morning hours of August 1, 2010 at a location on Highway 410, a multilane 400 series highway, south of Williams Parkway and north of Highway 407 in Mississauga.

2It is common ground that at the relevant time and place Mr. Grewal was the operator of a motor vehicle. He was observed by Ontario Provincial Police Constable Swas at about 1:45 a.m. accelerating at a high rate of speed. The officer was operating a "stealth" cruiser, which did not have the traditional OPP markings, but was equipped with flashing lights and a siren. The highway is posted as a 100 kilometre per hour zone, and he later ultimately paced the Grewal vehicle to be exceeding 150 kilometres per hour.

3The officer observed that as Mr. Grewal accelerated, he approached a slower moving vehicle in the same lane and made a sharp turn swerving at the last minute to change lanes without signalling.

4He then swerved back in front of that motor vehicle, and his passenger side tires swerved slightly over the dotted line separating lanes. He swerved back to the left and the drivers' side tires contacted the dotted line separating those lanes, and he rode the dotted line.

5It was at this point that Constable Swas paced the Grewal vehicle. The officers own speedometer on his cruiser showed approximately 153 kilometres per hour for a period of time.

6Shortly thereafter Mr. Grewal approached a second slower moving vehicle already established in that lane. He braked at the last moment and swerved while making a lane change back to the lane the officer was in, and then back immediately in front of that vehicle without signalling. Again, the passenger side tires went over the dotted line separating the lanes. The Grewal vehicle then swerved back to the extreme left. Constable Swas observed this event as well and as a result he attempted to execute a traffic stop of the Grewal vehicle.

7At this point, the Grewal vehicle was just south of Clark Blvd in Brampton. The officer activated his flashing lights to attempt to get Mr. Grewal to stop, and he continued southbound without stopping, although he had now slowed to about 120 kilometres per hour.

8Constable Swas then activated his siren in addition to the flashing lights, and Mr. Grewal still did not stop. The officer then accelerated and pulled up to the left of the Grewal vehicle in the adjacent lane, and tried to catch the attention of the driver, who did not make eye contact and stared straight ahead.

9The officer pulled back behind the Grewal vehicle still with lights and siren, and he finally slowed to approximately 60 kilometres per hour, and pulled over on the shoulder of the 410 southbound just north of the 407 Highway at approximately 1:47 or 1:48 a.m.

10Observations of Mr. Grewal, the lone occupant and driver, included bloodshot eyes which were extremely red, the odour of alcohol emanating from his mouth, he admitted to having "one beer about 20 minutes ago", and his actions were very slow when attempting to retrieve his documents requested.

11As a result of his observations combined with a discussion with Mr. Grewal at the roadside, Constable Swas formed reasonable and probable grounds to arrest Mr. Grewal on a charge of impaired driving. He had Mr. Grewal exit the car, and while standing on a flat paved shoulder, he swayed back considerably. After handcuffs were placed on him to the rear, he swayed forward and almost lost his balance, and Constable Swas grabbed his arm to prevent him from falling down.

12He advised Mr. Grewal of the reason for the arrest, he read to him his rights to counsel and he made a proper demand for breath samples. Mr. Grewal eventually provided samples of his breath into an approved instrument under the direction of qualified breath technician Beckers and the analysis of those samples disclosed a blood alcohol concentration well in excess of the legal limit.

13Constable Beckers observed the odour of alcohol on Mr. Grewal's breath, that his eyes were very bloodshot, and that his face slightly flushed.

14An application has been brought on behalf of Mr. Grewal requesting exclusion of the evidence of the breath samples pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms (hereinafter referred to as the "Charter") based on a breach of the exercise of his right to counsel pursuant to section 10(b) of the Charter.

15For the reasons that follow I have determined that Mr. Grewal's right to counsel was breached. I have also decided that having regard to the criteria set out in the recent Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, the evidence of the analysis of the breath samples should not be excluded.

2: THE EVIDENCE

16The evidence relevant to the determination of the Charter issues is found in the testimony of Constables Swas and Beckers, a videotaped recording of the proceedings in the Intoxilyzer room, and the testimony of Mr. Grewal, his wife and his business associate.

17The facts relevant to the Charter issue that can be found in the testimony of Constable Swas are as follows:

• When asked if he had consumed any alcohol that evening, he said, "one beer about 20 minutes ago";
• Officer Swas was able to detect an accent;
• Most of the answers given by Grewal in response to the inquiry "Do you understand?" posited at various points in the cautions and rights to counsel were one word affirmatives - mostly "yeah" and "OK";
• Grewal's response to the question whether he wished to call a lawyer now was "I wish";
• Grewal was placed on the phone with an English speaking duty counsel named Tiltins;
• Grewal's conversation with duty counsel lasted 6 minutes;
• Grewal was not asked if he required translation or interpretation assistance and none was offered;
• Grewal made no direct expression of difficulty in comprehension of duty counsel nor expressed any dissatisfaction with the call;
• Grewal told the two officers that duty counsel told him he did not have to provide breath samples. Swas took this to be a misunderstanding of the legal advice given, rather than the language it was given in;
• Beckers asked Swas to call duty counsel again for him, and he did so to ensure he knew that he was legally obligated to provide breath samples;
• Grewal's conversation with the same duty counsel lasted 2 more minutes;
• Mr. Grewal did not express any dissatisfaction with the second call;
• Grewal did not ask to speak to a Punjabi lawyer or ask for a Punjabi interpreter;
• Swas could understand what Grewal was telling him and he was satisfied that Grewal could understand him;
• Swas indicated he had no concerns because he had been communicating with Grewal in English without difficulty and he had said he was in Canada for 30 years;
• Swas believed that it was possible that the lawyer had advised Grewal not to submit to physical tests and Grewal had thought the breath tests were physical tests, rather than any misunderstanding of the advice.

18A review of the video tape of the breath room interaction of Mr. Grewal with Constables Swas and Beckers reveals the following:

• Grewal speaks with a noticeable accent;
• His answers to questions about personal circumstances such as name and age are brief but appropriately responsive;
• He is able to answer biographical data questions appropriately such as his height and weight, and if he has any scars;
• He is asked if he understood what the lawyer said to him, and he said "yeah";
• He is asked if he was satisfied with the advice, and he replies in the affirmative;
• He is asked if he understands his rights, and he says "yeah" and nods his head;
• Grewal tells the officers in response to the demand that, "I talk to the lawyer. He say no need to pass the breath test";
• When the technician tells Grewal she did not think he would tell him not to provide a sample, and that she thinks he did not quite understand what duty counsel said, and perhaps counsel told him he did not have to provide any physical tests, he stated, "whatever the lawyer says. He talked to me, I don't know";
• When told they can contact duty counsel again to ensure "what he is telling you to do", Grewal says, "maybe he was saying physical, maybe";
• Grewal's actions in the breath room indicate that he is able to comprehend and follow instructions given to him concerning the provision of samples;
• In the breath room interview Grewal is asked if he has a good understanding of English, and he tells the officers he has been here 30 years. He then states "there is another option you just said that, you say to me one or the other, I can call again", which precipitates the second call to duty counsel;
• Some of the answers given by Grewal in relation to legal issues are indicative of some confusion and hesitancy - there was marked hesitancy in the response made as to understanding the secondary caution;
• Grewal makes no complaint about the quality of the advice provided by duty counsel;
• Grewal makes no request for an interpreter or for a Punjabi speaking lawyer;
• The officers make no offer of a translator or interpreter or a Punjabi speaking lawyer;
• Officer Beckers asked him what other language he speaks and he says Punjabi. Beckers asks Swas to maybe "note if a Punjabi duty counsel is there";
• Beckers asks Grewal if he knows the legal limit in Canada. He says he has "not had a problem in 30 years, maybe 130 or something";
• The automatic driver's license suspension is explained on video and the Court appearance. Grewal asked if his license is suspended already, and if he gets it back from the station. He is told he has to get it from the Ministry of Transport and he appears to understand that;
• Grewal also asks about his car and the number for the lawyer that was called for him that day.

19The testimony of Constable Beckers discloses the following:

• She found his ability to communicate in English had some ease to the conversation, and that he appeared to be fully understanding her questions and instructions;
• Grewal was able to follow instructions;
• Beckers was aware that Grewal spoke with an accent and that he also spoke Punjabi;
• She made no offer to secure a translator or interpreter because she felt that Grewal was understanding her;
• She felt a second call to duty counsel would correct any misunderstanding Grewal was under;
• She had no concern about his ability to understand English because she had a lengthy conversation with him previously in English. She believed he understood English, just did not understand the instructions of the duty counsel lawyer;
• She did not get the impression that Grewal was still confused when he came back to the Intoxilyzer room the second time;
• She did not feel that the effect of alcohol was extreme.

20The applicant testified only on the Charter application, and not in the trial proper. The facts as I find them that are relevant to the Charter issue in the evidence of Kulwinder Grewal are as follows:

• Grewal was born and raised in India;
• He came to Canada in 1981 first for about 1 ¾ years, and then went back to India for immigration reasons, and returned to Canada in September 1984;
• His first language is Punjabi;
• He understands simple English, but nothing technical and cannot read that much;
• He has had no further English training since he arrived in Canada;
• English is a language used in his first workplace in Canada at a printing press. He had this job for 22 years, but spoke Punjabi there to his supervisor and superficial pleasantries to coworkers;
• The last four years he has been a partner in an optical business in Brampton. The optician Dr. Talwar speaks to English clients and suppliers. He stated most of the clients speak Punjabi;
• He spoke to duty counsel in English;
• His eventual understanding of what duty counsel said to him is that he had to cooperate with the demand for breath samples;
• He speaks Punjabi in his home and with his friends;
• He understood that he was arrested for impaired driving and did not understand the system and what Legal Aid is;
• He had no idea that he could ask for an interpreter or a Punjabi speaking lawyer;
• He did not ask for an interpreter because he did not know how the system works, and "who is awake at 3 a.m?";
• Grewal denied he understood that he had spoken to a lawyer, and stated he was confused by the word 'counsel'. In cross-examination, he was confronted that with the fact he used the word 'lawyer' in English on the videotape more than once. He was asked if he agreed he knew he was speaking to a lawyer and he said "it's possible";
• Grewal agreed that he told Beckers he was satisfied with the advice of the lawyer, but that was "under pressure". He was inconsistent about claiming she was rude, as opposed to the duty counsel;
• He stated he understood the lawyer to say "do not blow into the breathalyser". After the second call, he said "I cannot say I understood, but the day-the way he was, was very threatening. So I just felt go and blow. That's what he was saying".

21Mr. Grewal was inconsistent under cross-examination about his level of understanding of that early morning in the Intoxilyzer room. His protestations in the face of objective evidence on videotape considerably undermine his credibility on his level of understanding. His blatant denial of knowing he was speaking to a lawyer that night when he himself told the officer what "the lawyer" told him to do also affect the weight to be given to his evidence.

22Mrs. Grewal primarily sees her husband in the household and with Punjabi friends and family. Her evidence is not of great assistance because her interaction with him is primarily in that context and not when he is trying to speak and understand English. The fact he is more comfortable with the Punjabi language does not suggest he does not speak the English language. Further, she did not view the videotape which shows some fairly lengthy English sentences and interaction with the officers which indicates a level of understanding above her perception of his ability.

23Doctor Talwar is the optician working in the Grewal store. He speaks Punjabi with Mr. Grewal, and states that if someone calls on the phone and Grewal does not understand, he gives the phone to Dr. Talwar. He is clearly more knowledgeable in the product and problems dispensing eyewear and it is logical the customers and suppliers would be steered to him to speak to them. He agreed in cross-examination that the problems Mr. Grewal has communicating are related in part to the fact he has no knowledge about optometry, and does not know the supplies which are needed.

3: LEGAL PRINCIPLES

Section 10(b)

24In R. v. Silva, 2010 ONCJ 503, a Charter application that engaged similar issues Justice Gage summarized the principles to be derived from the case law as follows:

I have been referred to a number of authorities from which I conclude that the following principles are germane to the determination of the issues in this case:

• The burden of showing a breach of the Charter right to counsel is upon the applicant (Mr. Silva) on a balance of probabilities;
• The right to counsel encompasses a right to be informed of that right in a comprehensible and meaningful way and the right to exercise that right in a meaningful and comprehensible fashion;
• Where special circumstances exist that would reasonably alert the officers informing the accused of his right to counsel that there may be a linguistic difficulty with comprehending the right to retain and instruct counsel without delay the officers are required to take reasonable steps to ascertain that the constitutional rights being given are actually understood;
• The questions of the existence of special circumstances, the adequacy of the steps taken to ensure actual comprehension, and whether or not he was afforded meaningful and comprehensible access to counsel are questions of mixed fact and law;
• Special circumstances may arise where it is clear to the officer that an accused persons first language is not English and there is difficulty comprehending the demand for samples of breath: R. v. Vanstaceghem, 1987 CanLII 6795 (ON CA).
• Other indicia of special circumstances may include:
  1. A failure to respond to questions dealing with the right to counsel coupled with a statement to the effect "I don't speak the best English": R. v. Lukavecki, [1992] O.J. No. 2123
  2. The necessity of speaking slowly to an accused who speaks English "a little bit": R. v. Ly [1993] O.J. No. 268
  3. A negative response by an accused when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the accused: R. v. Lim, [1993] O.J. No. 3241
  4. The failure to honour the accused's request for an interpreter or an officer or a lawyer who speaks his or her first language: R. v. Ferreira
  5. Knowledge that the first language of the accused is not English coupled with an indication that the breath demand was not understood and repeated statements by the accused that he did not understand his right to counsel or understand the meaning or function of duty counsel: R. v. Shmoel [1998] O.J. No. 2233

25A necessary concomitant of the right to counsel is the opportunity to meaningfully exercise that right. As Justice Gage stated, "effective communication is the cornerstone of the solicitor-client relationship". Evidence of a working knowledge of day-to-day English usage will not necessarily extinguish the concern for meaningful comprehension. Police will proceed at the peril of a successful prosecution where there are indicia of a language comprehension problem and an interpreter is neither offered nor made available: R. v. Shmoel [1998] O.J. No. 2233 and R. v. Ali [1999] O.J. No. 5712.

4: CHARTER ANALYSIS

Section 10(b)

26In this instance Mr. Grewal spoke with an accent, his given name and his surname is South Asian, and his answers to questions at the roadside were largely monosyllabic, although he was able to say what he had been drinking and when. In the breath room he made an explicit admission that he had difficulty understanding the advice of duty counsel. Constable Swas made no attempt to ascertain Mr. Grewal's ethnic origin or mother tongue, or took no steps to alert legal aid duty counsel that there might be a language issue.

27On the other hand, on videotape, he had lengthy conversation with Constable Beckers in English which was responsive and multi-syllabic.

28While it was entirely reasonable for the two officers to believe that Grewal understood them in the English language, when the situation arose where he either misunderstood the advice he was given by duty counsel, or misunderstood the duty counsel lawyer, in the circumstances, on a balance of probabilities, I am satisfied that special circumstances existed that ought to have reasonably alerted the officers to a "potential linguistic difficulty" which might impact on his ability to understand his right to counsel and any legal advice provided to him in English.

29As of the night of his arrest Mr. Grewal had been in Canada for almost thirty years with an interruption of a year and half to immigrate. He had no formal training in English. His understanding of oral English was limited to some extent. While this case is very close to the line given his fluency in non-technical areas, I am satisfied that he may not have been able to fully appreciate legal advice provided to him exclusively in English.

30The instant case is somewhat like the case before Mr. Justice Gage is R. v. Xhango 2010 ONCJ 503, where His Honour states at para. 18:

The officers in this case appear to have proceeded on the basis that as long as they were satisfied that they understood Mr. Xhango, and as long as they were satisfied that Mr. Xhango was able to follow their instructions, that would be sufficient and nothing further was required. This posture fails to appreciate two things; first, the fact that it is the quality of the comprehension of the detainee that should be the focus of concern; and second, the fact that a level of comprehension sufficient to understand instructions will not necessarily be adequate to meaningfully understand and appreciate legal advice.

31In this instance the option of a Punjabi interpreter or access to a Punjabi speaking lawyer was weakly raised by Constable Beckers, but not acted on. The officers did not make Grewal aware that such resources could be made available to him. In the circumstances prevailing in this case, I am satisfied that the applicant has established a breach of the implementation phase of his right to counsel enshrined in section 10(b) of the Charter.

5: THE REMEDY

32In R. v. Grant the Supreme Court of Canada has set out the general framework for an assessment of whether the discretion to exclude evidence found in section 24(2) of the Charter ought to be exercised. In this case the evidence the applicant seeks to exclude is the results obtained from the Intoxylizer analysis of the samples of the applicant's breath. The Crown does not seek to introduce any statements made by Mr. Grewal in the breath room.

33Counsel for Mr. Grewal and the Crown provided brief written submissions on this issue after the close of other submissions on the Charter application and the merits of the trial. They will form part of the record. The Defence submissions will be Exhibit C, and the Crown submissions Exhibit D. I thank both counsel for their helpful submissions.

34There is no suggestion that a breach of s. 10(b) results in the automatic exclusion of evidence. All the cases referred to involve a close examination of the facts underlying the balancing of the Grant factors. With the exception of R. v. Barros-daSilva, [2011] O.J. No.3794 (S.C.J.), a summary conviction appeal, the remaining cases Mr. Lent is relying on are decisions of the Ontario Court of Justice. The Crown focused on appellate authority in both summary conviction appeals and the Ontario Court of Appeal, particularly R. v. Jackson [2011] O.J. No. 1575 (C.A.) and R. v. Trachieff, [2010] O.J. No. 5355 (C.A.).

35The first line of inquiry is the seriousness of the breach. This inquiry focuses on the gravity of the State's infringement of the rights of the citizen. The more severe or deliberate the breach the greater the need for the Court to dissociate itself from that conduct.

36This is not a case in which it can be said that there was a deliberate or flagrant disregard of the right to counsel. The officers involved acted courteously and professionally toward Mr. Grewal. They did arrange to put Grewal in touch with duty counsel - albeit an English-speaking duty counsel. They did so twice. Even though I have found that they were mistaken, I accept that the officers genuinely believed that they had fulfilled their duties to provide Mr. Grewal with access to legal advice.

37I agree with Gage J in Xhango, supra, that "The jurisprudence in this area calls upon officers to make a judgment call. It is not black letter law". While I have found that the two OPP officers misapprehended the need and obligation to explore comprehension issues in greater depth and better ensure Grewal's access to meaningful legal advice, I am equally satisfied that their failure to do so did not constitute an intentional attempt to circumvent or compromise Mr. Grewal's constitutional rights.

38There is no evidence on the basis of which I could conclude that this is a systemic problem.

39In all the circumstances, consideration of the first line of inquiry results in an assessment that falls at the lower to the middle of the continuum between minor and flagrant. It is not deliberate, but at the same time the conduct of the officers displays a flawed appreciation of the duty to ensure that the accused has access to meaningful and comprehensible legal advice.

40The second line of inquiry is the impact of the Charter protected interests of the accused.

41The failure to provide translation or interpretation assistance occurs after Mr. Grewal was properly arrested. He was properly subject to detention for investigation for the offences of impaired operation and Over 80 in any event. His detention was not extended as a consequence of the breach. He was placed in contact with duty counsel on two occasions and there is no evidence that the duty counsel raised a concern with the police about an inability to communicate or difficulty with comprehension. Mr. Grewal was obliged to provide samples of his breath. He ultimately understood he was obliged to do so. There is no evidence that the advice given was defective. The procedure has been described elsewhere as highly reliable and minimally intrusive.

42There can be no doubt that Charter protected interest in securing meaningful legal advice in advance of providing a breath sample is an important right, and in my view the analysis under the second line of inquiry leans toward exclusion.

43The focus of the third line of inquiry is society's interest in an adjudication of the charges on the merits. Impaired driving is serious and persistent societal problem. The Intoxylizer instrument is accepted to be highly reliable, and the result of the breath tests is essential to prove the case on count 2. The readings are "in no sense borderline": see R. v. Jackson, supra. This factor strongly favours admission.

44Balancing all of the factors set out above, I find that the integrity and repute of the administration of justice would not be compromised by the admission of the breath readings. The police conduct was not egregious and the evidence was reliable and of considerable value: see R. v. Beckles, [2012] O.N.C.A. 267 and R. v. Hrynkiw [2012] O.J. No. 191 (S.C.J.).

45In summary, the Applicant has established on a balance of probabilities that his s.10b Charter right was infringed when the officers, alerted to his lack of understanding, linguistically or legally, facilitated another contact with duty counsel but failed to make efforts to obtain advice in the Punjabi language. The breach is a very technical one, because both Officer Swas and Officer Beckers acted in good faith throughout, as they could understand Mr. Grewal and felt he understood them. He never asked for any assistance in his native tongue, and the police officers trusted that he understood based on their own dealings with Mr. Grewal, who had been in Canada for almost 30 years. In addition, he ultimately got advice, which he understood, and did provide breath samples, which he was required to do.

46The results of the Intoxilyzer analysis of Mr. Grewal's breath do not undermine the integrity and repute of the administration of justice. They are reliable evidence obtained by compliance with statute, and are admissible.

47No other issues are raised on count 2. The instrument was admitted to be in proper working order. The only issue argued at trial on this count was the Charter infringement. The Crown has proven beyond a reasonable doubt that at the time of driving that Mr. Grewal's blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood. There will be a finding of guilt on count 2.

6: IMPAIRED DRIVING

6.1: The Evidence

48The evidence relevant to the impaired count is found in the testimony of the two officers and the video tape recording in the Intoxilyzer room. In addition to the observations made by Constable Swas at the roadside, he was present in the Intoxilyzer room where breath samples were obtained directly into the instrument and served the certificate of the analyst attesting to truncated breath analysis results of 180 and 170 milligrams of alcohol in 100 millilitres of blood.

49The officer agreed in cross-examination that his cruiser was a low profile black stealth cruiser with subdued marking which is reflective when lights shine on it. It is somewhat less noticeable than a black and white cruiser. The lighting is observable to a driver of a motor vehicle, and one would see inside the windshield top centre a strobe light, intermittent red and blue flashing lights, and in the front grill, corner lamps also emit flashing lights. The headlights also alternate, flashing high beam to low beam. There are also red and blue flashing lights on the side view mirrors facing forward.

50The entire distance that Constable Swas followed the Grewal vehicle before activating the lights was close to 2 kilometres. Although no other vehicle was affected by the driving, the officer's opinion was that he was dangerously close to striking the rear of a vehicle.

51The officer did not recall where Mr. Grewal retrieved his documents from, just that his actions were slow in doing so. He confirmed that he did not note or recall slurred speech, although Grewal did have an accent, nor did he observe difficulty walking to the cruiser a short distance away. He did not note any difficulties walking at the station.

52I accept Constable Swas' evidence. The fact that Mr. Grewal did not display other indicia of impairment does not detract from the observations that he did make, nor does his failure to specifically note where the driver's license and other documents were retrieved from. Not all persons that consume alcohol display the same outward signs of that consumption.

53Constable Beckers indicated that the untruncated readings she obtained from Mr. Grewal were 183 milligrams of alcohol in 100 millilitres of blood and 173 milligrams of alcohol in 100 millilitres of blood. She observed his face to be slightly flushed, and that he had bloodshot eyes, in addition to the odour of alcohol on his breath. Her evidence is not seriously challenged, and I accept it.

54The defence did not call evidence on the trial proper. There is of course no onus on the Accused and the burden on the Crown does not shift. However the driving conduct and other indicia of impairment are uncontradicted.

6.2: Analysis

55The Crown must prove that the ability of the defendant to operate a motor vehicle was impaired by alcohol or drug at the time of driving.

56Mr. Lent submits that the officer's opinion as to impairment is flawed in that it fails to consider the favourable motor skills and fair speech of Mr. Grewal that night. I accept the officer's evidence as credible, and he had reasonable grounds for his opinion based on the manner of driving, the delayed reaction time to the lights and siren, the slowness of his retrieval of driver's license and other documents, the odour of alcohol on his breath, and the swaying at the roadside. The Court however weighs all of the circumstances and the totality of evidence in determining on an objective basis whether the charge has been proven beyond a reasonable doubt.

57Ultimately, the breath technician also agrees that Mr. Grewal's ability to operate a motor vehicle was at least noticeably or slightly impaired by the consumption of alcohol.

58The Crown is not required to prove any specific level of impairment, evidence that established any level of impairment in the ability to drive caused by alcohol or drug is sufficient proof of the offence. It does not require proof of a marked level of impairment, rather slight impairment by alcohol in the ability to drive is sufficient proof of the offence: see R. v. Stellato, 1993 CanLII 3375 (ON CA).

59Defence Counsel submits that the driving fell below the standard expected of a prudent driver, and he submits it amounts to careless driving, or even dangerous driving, but the Crown must prove that ability was impaired by alcohol, not just poor driving.

60Mr. Grewal's vehicle was speeding at a considerable rate that evening. It was clearly faster than other vehicles on the roadway and well above the posted limit. The speed coupled with the failure to make appropriate judgment and react to emergent circumstances caused the abrupt swerving observed by Constable Swas. One's inhibitions may well be affected by alcohol, causing this loss of judgment and coordination.

61The considerable delay in stopping his motor vehicle after emergency lights and siren were activated, and his lack of eye contact with the "lit up" cruiser in the lane next to his driver window, speaks to his reaction time diminished, at least in part, by the consumption of alcohol. Even if Mr. Grewal did not notice the stealth vehicle at first, the audible and visible emergency equipment would be clearly noticeable by an alert driver.

62The driving evidence along with the observations of Mr. Grewal at the scene, and my own observations of him on the videotape recorded in the Intoxilyzer room, demonstrate some impairment of his faculties by the consumption of alcohol.

63At the time he was driving on the southbound Highway 410, his ability to drive his vehicle was at least slightly impaired by the consumption of alcohol. The Court is satisfied beyond a reasonable doubt on count 1 and there will be a finding of guilt.

64The Crown may elect which of the two counts she wishes the conviction to be registered upon and the remaining count will be conditionally stayed.

Released: July 6, 2012

Signed: "Justice Kastner"