R. v. Robi, 2021 ONCJ 629

Ontario Court of Justice

Date: 2021 09 13 Court File No.: Central East Region: Oshawa Courthouse File #: 19-00979

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SELESHI A. ROBI

Before: Justice Peter C. West

Evidence Heard on: December 3, 2020, March 22 and 25, 2021, April 23, 2021 and July 13, 2021 Reasons for Judgment released on: September 13, 2021

Counsel: Mr. T. Hewitt and Mr. M. Fabre, for the Crown Mr. M. Capotosto, for the accused Seleshi Robi

WEST J.:

Introduction:

1Seleshi Robi was charged on August 4, 2019, with impaired operation and 80+, contrary to s. 320.14 of the Criminal Code of Canada. On October 19, 2020, an application was brought by Mr. Robi challenging the qualifications of a conditionally accredited interpreter. The interpreter’s office was unable to obtain the services of a fully accredited Amharic interpreter for the two day trial scheduled because there was only one available in the GTA and this interpreter was already booked for another trial. After hearing evidence and submissions, I approved the conditionally accredited interpreter, Mr. S. Bekele, to provide translation from the English language to the Amharic language and vice versa. I utilized Mr. Bekele’s services after my ruling to explain what occurred respecting the application to Mr. Robi, who ultimately advised he and the interpreter were able to communicate in the Amharic language. I was advised at the start of the trial in the time between my ruling and the commencement of the trial Mr. Bekele became fully accredited as an interpreter in the Amharic language.

2The trial commenced on December 3, 2020. Mr. Capotosto brought a Charter application alleging breaches of ss. 7, 8, 9, 10(a) and 10(b) of the Charter. The Crown and defence agreed to a blended hearing respecting this application. The main focus of the Charter application were the special circumstances created by Mr. Robi’s first language being Amharic. The Crown called two witnesses, Tyler Cowle, the 911 caller, and P.C. Gale Richardson, the arresting officer.

3It should be noted that following the afternoon recess on December 3, 2020, Mr. Capotosto advised he had received a text from his wife that she had developed some symptoms consistent with Covid-19 and as a result Mr. Capotosto requested the trial be adjourned. He was not prepared to continue the trial the next day by Zoom for the completion of the Crown’s examination in chief and cross-examination of P.C. Richardson. New dates were ultimately set for March 22 and 25, 2021 for completion of the evidence and submissions.

4When the matter returned on March 22, 2021, the Crown advised he was not proceeding on the 80+ charge and requested that I dismiss that charge, which I did. Mr. Hewitt advised P.C. Richardson would be the last Crown witness. Mr. Capotosto advised he did not intend to call his client on the blended hearing but intended to call P.C. Hannah Elkington, the qualified breath technician, as a defence witness on the Charter application for the defence. After P.C. Elkington’s evidence was completed Mr. Capotosto advised he had changed his mind and would be calling Mr. Robi on the blended hearing dealing with the Charter application. Mr. Robi testified in chief on March 25, 2021 before we adjourned at 6:30 p.m. and a further date was required for the Crown’s cross-examination.

5Mr. Robi’s evidence on the blended hearing for the Charter application was concluded on April 23, 2021, after the Crown completed his questioning of Mr. Robi. After the evidence was completed it was agreed that counsel would provide written submissions on the Charter application as there was no further time available for oral submissions to occur on that date. Mr. Capotosto advised he was no longer advancing his argument respecting ss. 8 and 9 given the evidence provided by P.C. Richardson as to her formation of reasonable and probable grounds that Mr. Robi’s ability to operate a motor vehicle was impaired by alcohol.

6Both counsel agreed the sole issue remaining was whether the initial observations of P.C. Richardson when she approached Mr. Robi’s vehicle and commenced her investigation should be excluded pursuant to s. 24(2) because of what Mr. Capotosto alleges is a serious breach of Mr. Robi’s s. 10(b) Charter rights because of his language difficulties. On June 18, 2021, I provided written reasons for judgment dismissing Mr. Robi’s Charter application. Mr. Capotosto advised he now planned to call Mr. Robi on the trial proper respecting the remaining charge of impaired operation and a date was scheduled for July 13, 2021, for continuation of the trial by the defence calling Mr. Robi. Mr. Capotosto advised he was not prepared to have Mr. Robi’s evidence on the Charter application apply to the trial proper. He did indicate it was not necessary to recall P.C. Elkington, the qualified breath technician, as he was content that the breath video and her evidence apply to the trial proper.

Factual Background

7In my Charter ruing, dated June 18, 2021, I set out facts and I am incorporating portions of this judgment in this section of my judgment dealing with the factual background of this case. I will also include additional facts from the evidence relevant to the issues raised on the trial proper.

8On August 4, 2019, around 11 p.m., Mr. Robi was operating his small Toyota SUV, possibly a Rav4, on Kingston Road in Scarborough when his driving was observed by Tyler Cowle and his wife and daughter. Mr. Robi was driving in an erratic manner, side-to-side swerving, almost colliding with other vehicles and going over the dotted line. There were other vehicles around this SUV, and they had to apply their brakes, as they were cut off by the SUV. Initially Mr. Cowle thought the driver might be on a cell phone. As this vehicle moved onto the Highway 401 on the Kingston Road ramp it moved across a number of the lanes of traffic and went over the solid line (three or four feet) on the shoulder towards the cement median. As a result, at 11:13 p.m., Mr. Cowle contacted 911 because of his concern that the operator of the SUV was impaired by alcohol. Mr. Cowle’s wife took a short video of the SUV’s driving, which was entered as Exhibit 1.

9P.C. Richardson was an OPP officer for 16 years and was on duty, in uniform, driving a marked police cruiser on the 401 Highway and she received a dispatch call respecting a possible impaired driver, operating a Toyota SUV, with a plate number BFFF072 or BTFF072, in an erratic manner. The information she received from dispatch was the Rav4 was all over the road. She was just completing a collision report when she received the call from dispatch. The weather was a beautiful clear night with a temperature of 25 degrees at 5 p.m. when she started her shift.

10She set up at Brock Street in Whitby but did not observe the vehicle, so she telephoned Mr. Cowle at 11:27 p.m. and spoke with him. She found out the vehicle had exited at Simcoe Street in Oshawa. The vehicle was confirmed to be a dark Toyota Rav4 with license plate BFFF072. The vehicle was turning onto a street called Whiting. As she received this information she was driving eastbound on the 401 and then exited on the Simcoe Street ramp. She drove into the back of a building at 55 Whiting and found the Toyota Rav4 and pulled her police cruiser behind it, facing west. She arrived there at 11:34 p.m.

11The vehicle, license plate BFFF072, was parked facing southbound between two vehicles. She observed the vehicle’s lights were not on but there was a light on inside the vehicle with a lone male individual in the driver’s seat. She got out of her police vehicle and approached the driver’s side. She looked in and saw only one person inside and she knocked on the window. The man opened the door.

12She was standing just back of the door handle so when the driver’s door was opened it did not bump into her. The driver bumped his door into the vehicle parked beside him, but it was fairly close. She immediately noted there was an odour of alcohol coming out from the vehicle. The odour of alcohol was coming from the driver’s face area. He appeared very sleepy by his demeanour. He was looking at her like he could not see her. His eyes were glassy.

13P.C. Richardson asked him for his driver’s license, ownership, and insurance. She advised him there had been a traffic complaint about his driving. She asked if he had been drinking that night. The gentleman did not answer this question. She observed the driver appeared like he couldn’t see her and looked almost dazed. After asking for his documents the driver began looking in his wallet. His movements were slow and deliberate. The driver provided a plastic card, which was his green TD Bank Card and the officer told him this was not the document she requested; she was looking for his driver’s license. He then provided her with his driver’s license about a minute later, which was for Seleshi Robi with a photograph that matched the driver. [1] Mr. Robi also provided the officer with his ownership, which showed he was the registered owner. He never provided his insurance document.

14Mr. Robi’s manual dexterity throughout P.C. Richardson’s dealings with him were slow and careful. As a result of her observations and the information she received from dispatch concerning the driver’s erratic driving from Pickering to Oshawa on Highway 401, she formed reasonable and probable grounds that Mr. Robi’s ability to operate a motor vehicle (conveyance) was impaired by the consumption of alcohol and she advised him he was under arrest for impaired operation. This occurred at 11:36 p.m. She requested he step out of the vehicle and when he did, he stumbled. As he walked to the rear of his vehicle P.C. Richardson held onto his arm and she noticed he was unsteady on his feet. When they got to the rear of his vehicle she handcuffed him. He continued to be unsteady when walking as she walked him to the rear of her police cruiser. The ground was paved and flat and Mr. Robi was wearing flat soled shoes.

15She asked Mr. Robi if he understood English and he said, “Yes.” He was soft-spoken and he had an accent and she testified she wanted to make sure they were able to communicate with each other. She believed Mr. Robi understood why he was under arrest and was handcuffed and believed they could communicate. When they got to her police cruiser and Mr. Robi had been placed inside the rear seat, she read Mr. Robi his right to counsel at 11:40 p.m. She read him this from a card issued to OPP officers. When she asked if he understood and if he wanted to call a lawyer, Mr. Robi responded, “No.” P.C. Richardson testified she then asked Mr. Robi, “No for what?” He replied, “I don’t want to talk to a lawyer, no.” When Mr. Robi responded he was looking directly at the officer and she believed he was attentive and understood her. P.C. Richardson then read him a caution at 11:43 p.m. He responded, “I live here, I don’t know.” She then explained to him he did not have to tell her anything if he did not want to.

16At 11:44 p.m. she read him the breath demand and when she asked if he understood he said, “Yes.” She also told him this meant he would be coming with her to do a breath test. A male officer had arrived earlier and searched Mr. Robi before he was placed into P.C. Richardson’s cruiser. She left the scene at 11:51 p.m. to attend the Whitby OPP detachment on Henry Street, arriving at 12:01 a.m., but the DRPS qualified breath technician was not able to attend the OPP detachment. As a result she had to attend the DRPS detachment on Taunton Road in Whitby, arriving there at 12:24 a.m. At 12:28 a.m. Mr. Robi was placed into a cell.

17At 12:32 a.m., P.C. Richardson spoke with Mr. Robi again and asked if he had changed his mind about speaking to a lawyer, he could call his own lawyer or have a free duty counsel and he said he would speak to duty counsel. At 12:34 a.m., P.C. Richardson provided her grounds for arrest to P.C. Elkington, the qualified breath technician, and she called duty counsel. Duty counsel, D. Paul called back at 12:55 a.m. and Mr. Robi was placed in a private room at 12:57 a.m. to speak to duty counsel by telephone. P.C. Richardson did not note how long Mr. Robi spoke with duty counsel.

18Throughout her interactions with Mr. Robi, P.C. Richardson believed he had no difficulty understanding what she said to him.

19Mr. Robi opened his driver’s door when P.C. Richardson knocked on the window. He did not roll down his window. When he opened the door he bumped the car he was parked beside but it was fairly close. She immediately noticed an odour of alcohol coming from the vehicle, which she realized was coming from Mr. Robi’s face or mouth area. He was the lone occupant in the vehicle. She advised him there had been a complaint about his driving.

20P.C. Richardson agreed she did not note any slurring by Mr. Robi. She disagreed the way Mr. Robi was looking at her was because he did not understand what she was saying to him. He was looking at her like she was not there, he appeared dazed. She did not believe he was just sleepy. P.C. Richardson testified she believed this was an indication of his level of impairment. When he provided her his TD Bank card P.C. Richardson took this as an indication of his level of impairment. P.C. Richardson testified initially she had suspicion he had alcohol in his body but then she made further observations, formed reasonable grounds to believe that Mr. Robi’s ability to operate a motor vehicle was impaired by the consumption of alcohol and at that point arrested him for that offence.

21She asked him if he understood English because he had an accent. She has an accent as she can also speak French, which is her first language. If a person asks her to find someone to speak a different language then she tries to do that. Most people who do not understand English tell her this. When Mr. Robi walked to the rear of his vehicle after getting out of his car he was unsteady on his feet. He did not trip. P.C. Richardson denied using a hand signal by taking her thumb and putting it to her mouth to make a drink sign to demonstrate that was the reason for the arrest – she does not do that, she does not make hand gestures.

22P.C. Richardson agreed she did not ask Mr. Robi if he needed an interpreter. Mr. Robi did not ask her for an interpreter. P.C. Richardson believed Mr. Robi understood the things she said to him. She explained the breath demand in a simpler way because this is something she does routinely. She never believed Mr. Robi was having difficulty understanding English. She asked Mr. Robi if he changed his mind about speaking to a lawyer and gave him the option of calling his own lawyer or duty counsel who is free. Mr. Robi chose duty counsel. He did not request to speak to duty counsel in a different language, if he had asked P.C. Richardson, she would have requested this when she placed the call to duty counsel because they have that option.

23Mr. Robi never told P.C. Richardson he did not understand. Most people do that if they do not understand and then she would try to accommodate their request. If the individual does not communicate they have problems understanding English, the officer testified she cannot help them because she does not know there is a difficulty. She would try to find an officer who speaks the language if she finds out there is a language issue, or she will request dispatch to find someone who speaks the person’s language. Mr. Robi never said to P.C. Richardson he did not understand what she was saying to him.

24It should be noted that Mr. Capotosto played a number of videos of Mr. Robi interacting with police officers at the Whitby DRPS police division. I have watched these videos, which were filed by the defence as Exhibits, several times and made the following observations of Mr. Robi while he was walking and standing in one place: he walked with a side to side swaying motion and when he stood in one place he moved and swayed side to side and was not able to stand still in one spot; when the handcuffs were removed he stood shifting his weight from one foot to the other foot. At one point a necklace had to be removed from around Mr. Robi’s neck and he was unable to undo it himself – an officer had to remove it. After it was removed Mr. Robi’s swaying from side to side continued more noticeably.

25The defence called P.C. Elkington as a witness on the blended hearing dealing with the Charter application. She was the qualified breath technician on duty at the Whitby DRPS police station. Mr. Robi had been brought in by P.C. Richardson, an OPP officer, to provide breath samples. Mr. Robi had been arrested earlier for impaired operation. P.C. Elkington first observed Mr. Robi sleeping in the private room where detainees spoke in private to counsel. Mr. Robi was brought into the breath room at 1:10 a.m. Mr. Capotosto played the breath room video, Exhibit 5, which showed the interactions between P.C. Elkington and Mr. Robi. A transcript of the video was provided and marked as Exhibit 5A. It was P.C. Elkington’s evidence that she believed Mr. Robi understood why he was under arrest and he understood his requirement to provide two samples of his breath. P.C. Elkington understood he had spoken to duty counsel. On the breath room video Mr. Robi advised P.C. Elkington that he had spoken to duty counsel and was satisfied with his telephone call.

26P.C. Elkington testified Mr. Robi had an accent and she understood English was not his first language. She was satisfied from their conversation that Mr. Robi understood why he was under arrest and he told P.C. Elkington he did not agree with the other officer. On page 3 of the transcript Mr. Robi told P.C. Elkington he needed a translation. He told her he was from Ethiopia and spoke Amharic. She asked him if he spoke English and said to him that he appeared to understand her okay. Mr. Robi told her, “A little bit.” She asked him if he understood why he was arrested and Mr. Robi told her, “I don’t drink. I went to the church. I have a lot of church part in my car, am a priest.”

27At this point P.C. Elkington had a conversation with Mr. Robi about where he was a priest and Mr. Robi and the officer in my view do not have any difficulties communicating with each other. She advised Mr. Robi if something confused him he was to let her know and she would explain it to him until he understood and Mr. Robi said, “Yah.” She expressed to him that she did not know if she would be able to find a translator who spoke Amharic. She asked him again if he was able to understand duty counsel and Mr. Robi said, “Yah.” She asked if duty counsel was able to explain everything, so Mr. Robi was comfortable with the advice. Mr. Robi said, “Yah (unintelligible) you know been in Canada 10 years.” P.C. Elkington advised Mr. Robi it was important to her that he understood his rights.

Elkington: Your rights are that you have the right to speak to a lawyer. You still have that right. Robi: Yah Elkington: and you did speak to one. Robi: Yah Elkington: Okay. And you’re happy with that advice. You understood what he said to you. Okay. Another thing that is important is that you understand that you don’t have to talk to me. Robi: Yah Elkington: You understand that? Robi: Yah Elkington: And you understand that everything you say to me will be used as evidence against you. Robi: Yah yah (unintelligible) Elkington: Yeah I have to write everything. I have to write everything Robi: (unintelligible) I’m a priest. My car…everything in my car…I don’t have anything…My hat my clothes in my car Elkington: You will have an opportunity later to go to get your things from your car. You can go and get them Robi: Yah Elkington: We have to do two tests tonight okay. So I’m going to have to get you to open that Robi: How? Elkington: Just rip it open. Okay you can put that in the garbage. Just put that in your mouth and I will get you to blow through it. Blow, okay, you can hear that noise. Now I want you to put your hand coming in front of it okay. Can you feel the air? Blow again. You feel the air? Yeah. Robi: Yah Elkington: You can feel the air coming through Robi: Yah Elkington: Okay that’s good. It means it’s working. Take it out of your mouth and go ahead put it in here, okay push it in. Good so what you’re gonna do is take a deep breath. You are going to blow into this for as long and as hard as you can Robi: Yah Elkington: You are going to hear a long beeping sound on here. It’s gonna sound like this “beeeep” That’s a good thing. We want to hear that sound. Okay so you’re gonna blow and as long as you hear that sound it’s good. You’re gonna do it until I tell you to stop. Robi: Okay Elkington: Do you understand that? Robi: Yah Elkington: Okay do you have any question? Robi: No Elkington: Alright, I’ll hold on to it. You take a deep breath and blow. Blow, blow, blow, blow, blow, blow, blow, blow, blow, blow, blow, blow, blow. Okay, here we go just like that.

28Mr. Robi had no difficulty understanding anything P.C. Elkington discussed with him or the instructions she gave to provide a proper sample of his breath. This is readily observable from watching the breath video. After completing the first breath test Mr. Robi began to discuss with P.C. Elkington the big celebration that had taken place at his church that day. He initiated the discussion about this. It is my view from the breath room video and Mr. Robi’s comments and responses with P.C. Elkington that while English might not be his first language he had no difficulty engaging in the conversation he did with P.C. Elkington and he understood her comments and he responded appropriately and directly to questions he was asked.

29P.C. Elkington asked about where he was coming from, if he was alone, if the car was his, how much sleep he had the night before, what time it was and whether he had consumed any alcohol. All of his comments and answers were appropriate and directly responsive to what was being discussed and in my view he had no difficulty understanding anything that was said or asked by P.C. Elkington. He told her he was drinking “non traditional alcohols,” which were homemade by someone from Ethiopia and that it looked like ginger ale. This was what he was drinking during the celebration. He told her he started drinking this after the celebration at lunch time. He stopped after lunch. He told her it was organic and maybe it had alcohol in it from that. He told her alcohol is not allowed in his religion and he does not drink wine or beer.

30P.C. Elkington told him that she could smell alcohol on his breath. She asked him if alcohol is not allowed whether he thought alcohol was showing up in his blood because of the homemade drink. He told her that the homemade drink is sometimes sweet, traditional “sometimes making from alcohol content…in my country…it’s low.” Mr. Robi told P.C. Elkington about studying English and being in Canada for 10 years. P.C. Elkington asked Mr. Robi how he would have alcohol in his system – in his blood, if he did not drink any alcohol because she can smell it on his breath, and it was very strong. Mr. Robi responded, “maybe…I’m drinking traditional.” They discussed communion at church and whether Mr. Robi and his church drank wine and he indicated they did not, only traditional drink. Mr. Robi has no difficulty throughout the breath video in communicating with P.C. Elkington or understanding anything she said to him or asked him.

31He provided a second sample of his breath and followed P.C. Elkington’s instructions and directions without any difficulties and was successful in providing the second breath sample. It was P.C. Elkington’s evidence that she believed Mr. Robi understood everything during their conversation.

32Mr. Robi testified he worked as an auto mechanic working in maintaining vehicles. He also was a part-time priest in the Ethiopian Orthodox Christian Church, St. Gabriel, which was a volunteer position. He had been a priest about forty years. He was involved in four services a month and there was a celebration for St. Gabriel’s Day. He testified he did not have any drinking experience because it was not allowed in the church. When he was asked if that meant he had never consumed alcohol he answered, “When I was in Ethiopia, I had consumed traditional alcohol as a young boy, very limited amount and that’s all my experience.” The following exchange [2] between Mr. Capotosto and Mr. Robi ensued:

Mr. Capotosto: What did you consume? Mr. Robi: Traditional beer Mr. Capotosto: What do you mean by “traditional beer”? Mr. Robi: What I mean is beer with very low alcohol content. Mr. Capotosto: Do you remember how many – how many beers that you – sorry, was this on one occasion or on several occasions when you were a – a boy? Mr. Robi: I actually consumed during the holidays which happens to be once a year. Other than that I’m not interested to drink alcohol and [indiscernible] force me to drink alcohol either. The Court: Sorry, the last part? Mr. Robi: I drink this traditional drink once a year on – on a holiday. Other than that I do not consume on other occasions. Mr. Capotosto: So what is – what is this – so you – what is this “traditional” drink that you’re talking about? Mr. Robi: It’s a traditional drink. The Court: It is a what? Mr. Robi: Drink traditional beer. The Court: Traditional drink? Mr. Robi: Beer yeah. Beer.

33On August 4, 2019, Mr. Robi testified the church celebrated the Annual St. Gabriel’s holiday celebration or festival. This was a yearly celebration and he had to manage and administer what has to be done at St. Gabriel’s church. He woke up at 4 a.m. and got to the church at 5 a.m. He described how about a hundred people came to the celebration. The church service lasted from 6 a.m. to 12 noon. He gave a half hour sermon. There were other priests who came to the church and helped. After the six hour service he was very tired. During the lunch he testified he consumed a traditional drink called TEJ. It is a traditional Ethiopian drink. He testified he did not know that it was alcoholic. This traditional drink is made with honey and it is yellow, and it has a flowery honey smell or odour. It tastes sweet. He was served the TEJ by the servers. The following questions and answers continued Mr. Robi’s testimony:

Mr. Capotosto: Had you ever had this drink before this day? Mr. Robi: Yes, only once a year. This is served in the church once a year during the holidays. Yes during that time yes. Other than that there are no occasions where I consume it. Mr. Capotosto: Did you ever suspect that this drink – on that day or before that day, did you ever suspect that this drink might contain alcohol? Mr. Robi: No. Never. Mr. Capotosto: Did you feel anything that day as a result of taking this drink? Mr. Robi: No. Nothing. So you said you had – you said you had this drink before on holidays once a year? Mr. Robi: That’s correct. Mr. Capotosto: How much did you usually drink? Mr. Robi: After lunch I would have a cup of Tej. The Court: Sorry? Mr. Robi: After lunch I would have a cup – a cup of Tej. The Court? Just a cup? Mr. Robi: Yes. Yeah normally I drink one, but on that day, I had two.

34He testified he consumed one cup around 1 p.m. and then four hours later he consumed one cup which is diluted with club soda. He testified it was in the smallest white cup one can buy from the dollar store. He demonstrated the height of the cup to be between three and four inches.

35Mr. Robi was asked if he had learned anything about this drink since the night of the offence and he testified when he came home and was discussing what happened with his wife she told him “this drink probably it had some alcoholic content,” although he could not confirm but this was his wife’s suggestion to him that there probably was alcohol in what he consumed. Mr. Capotosto then asked Mr. Robi if he now believed there was alcohol in that drink—Tej that he was drinking, to which the Crown objected as being a leading question, as were the previous questions, which brought out the hearsay evidence from Mr. Robi’s wife when he arrived home after being charged with impaired operation and having 80 or more milligrams of alcohol in 100 millitres of blood. Mr. Capotosto advised he would re-phrase the question and this exchange followed:

Mr. Capotosto: What do you believe now about the drink Tej that you drank that day? Mr. Robi: I assume or think that it could probably be alcoholic. Also I was not aware of it or I didn’t know. The Court: I’m sorry. Mr. Robi: I think or I believe it might have some alcohol – alcoholic content. Also I was not aware of it. Mr. Capotosto: And why do you think that today? Mr. Robi: This is because I’m basing my suggestion because they said they found blood – I mean they found alcohol content in my blood. Mr. Capotosto: Who – who did? Mr. Robi: That’s what I heard at the testing centre…That’s what I heard at the testing centre at the police station. Mr. Capotosto: Are you referring to the test that Officer Elkington did? Mr. Robi: Yes. I’m referring to the breath test.

36Mr. Robi testified he did not talk to anyone else about this because he did not want to talk about it. When Mr. Robi was asked “Why not?” He replied, “Yeah so far I didn’t understand, but really in the future is really alcoholic I would warn and teach people not to consume this drink and operate a motor vehicle.” He was asked why he mixed it with club soda, and he said it was because his throat was getting dry and he wanted to quench his thirst by just drinking all of it at once.

37Mr. Robi testified the celebration went from the early morning right until 11:45 p.m. because he had to take care of everything after everybody left at 8 p.m. He testified before he got in his car he was “feeling very much tired.” He was also feeling pain in his back because of standing and working. He testified he has suffered from back pain for a very long time. He testified when he was asked by P.C. Elkington if he had any illnesses or injuries he said “No” because he did not understand the question. He testified he never suspected the way he was feeling had anything to do with the Tej he drank. He was feeling tired and fatigue.

38Mr. Robi testified he had no problems getting home. Mr. Capotosto told him there was a witness who described him “Swerving on the Road” – and asked if he recall doing that. Mr. Robi testified “Could be I was very tired. Could have been.” Mr. Capotosto asked, “But do you recall swerving.” Mr. Robi testified, “I do not remember, but it’s possible.” Mr. Robi testified it was possible he left his turn signal on after he made a lane change, “sometimes we forget, it’s possible.”

39Mr. Capotosto asked Mr. Robi about providing P.C. Richardson his TD bank card when the officer had asked for his driver’s license. Mr. Robi said he heard her ask for his driver’s license, but he gave her his TD bank card, maybe because he was afraid and shocked or nervous. He remembered the officer asking him to step out of his vehicle and agreed it was possible he was unsteady on his feet. He said he had worked long hours; he was hitting the car and he had back pain so when he got out and started walking it’s possible that he could’ve walked here and there. It’s possible he zig zagged. He remembered having difficulty getting his chain off from around his neck at the police station. It was a different kind of necklace he normally wore, and it was kind of narrow as well. He agreed he had difficulty removing it. Mr. Robi demonstrated how he removed the cross on a string that he normally wore around his neck. At the celebration he wore a different necklace made from gold. The police officers had to help him remove it.

40Mr. Robi remembered being put in a booth to speak to someone on the phone. He was extremely tired. He testified it is possible when P.C. Elkington saw him he may have been sleeping.

41Mr. Capotosto then reviewed a number of things Mr. Robi said on the breath video in conversation with P.C. Elkington: [3]

P.C. Elkington: How much alcohol did you drink in the past eighteen hours? Mr. Robi: Ethiopians… non-alcoholic… traditional… [unintelligible] P.C. Elkington: zero alcohol content Mr. Robi: traditional P.C. Elkington: traditional Ethiopian, what about tonight? Mr. Robi: Yah P.C. Elkington: you had no alcohol Mr. Robi: no P.C. Elkington: No alcohol Mr. Robi: no P.C. Elkington: What were you drinking at this celebration? Mr. Robi: The whole day the whole day…charity…celebration…come from Ethiopia…[unintelligible] P.C. Elkington: no, but what were you drinking? What were you celebrate…what were you drinking today? Mr. Robi: Non traditional alcohols

42Mr. Capotosto asked Mr. Robi what he meant by “non traditional alcohols” and Mr. Robi testified, “What I meant to say is that the drink I consumed is a traditional drink that has no alcohol” and he continued, “It’s just the way I express. It’s my understanding or my expression. That’s all.” Finally, Mr. Capotosto referred Mr. Robi to a further answer he gave in answer to P.C. Elkington’s questions:

Mr. Robi: most of the time in my culture, uh, in traditional celebration because I’m a leader…speaking out…the bible [unintelligible]…after service, celebration…traditional…alcohol content is low… P.c. Elkington: So it’s a traditional drink with low alcohol content? Mr. Robi: yah, it look like ginger ale P.C. Elkington: Okay so it does have some alcohol in it? Mr. Robi: No

43Mr. Capotosto asked Mr. Robi, “So you said it was a traditional drink with low alcohol content. What did you mean by “low alcohol content?” Mr. Robi answered. “So what I meant to say is that it has no alcohol in it. So when I say “low content”, actually I’m referring to saying no alcohol in it. It’s my English. It’s the way of my expression, but that’s what I meant.”

44There are other passages in the Breath Room video, Exhibit 5, [4] that were not put directly to Mr. Robi by Mr. Capotosto, which in my view are relevant to the issues raised by the defence on this trial.

P.C. Elkington: non traditional alcohol? Like what? Mr. Robi look like soft drink P.C. Elkington: soft drink? (Robi: Yah) What kind of soft drink? Mr. Robi: I don’t know what…[unintelligible] look like ginger ale P.C. Elkington: Okay. Is it homemade? Mr. Robi: Homemade, yah. P.C. Elkington: so who made it? Did you make it? Mr. Robi: No P.C. Elkington: Someone else makes it? Mr. Robi: It comes [unintelligible] P.C. Elkington: So someone from Ethiopia (Robi: Yah) brought it? Mr. Robi: Yah P.C. Elkington: How many of those did you have? How many of those drinks did you have? Mr. Robi: [unintelligible] P.C. Elkington: but how many drinks did you have tonight? Mr. Robi: [unintelligible] look like kinda beige…maybe some… one meter P.C. Elkington: You had one milligram Robi: Yah P.C. Elkington: Where were you drinking? Mr. Robi: In the church P.C. Elkington: Who were you drinking with? All the people? Mr. Robi: Yah [unintelligible] P.C. Elkington: What ah…what time did you start drinking? Mr. Robi: After celebration, lunch time. P.C. Elkington: lunch time? Mr. Robi: Yah P.C. Elkington: What did you stop? Mr. Robi: After lunch, after lunch that’s it. P.C. Elkington: You stopped after lunch? Mr. Robi: Yah P.C. Elkington: Do you drink alcohol? Mr. Robi: No

45He was adamant with P.C. Elkington he has never consumed wine or beer or spirits—whisky or vodka as alcohol is not allowed in his religion. All he ever drank was the traditional drink, once a year at the celebration. The questioning continued: [5]

P.C. Elkington: not allowed, so you think, you think it is showing in your blood right now because of the homemade drink. Mr. Robi: Yah P.C. Elkington: the traditional drink Mr. Robi: the traditional…that’s why…in my history P.C. Elkington: What is the traditional drink called? Mr. Robi: You know what in my homemade…sometimes sweet, traditional sometimes… sometimes making from alcohol content…in my country… it’s not it’s not…uh…[unintelligible] P.C. Elkington: It’s low Mr. Robi: It’s a low P.C. Elkington: low alcohol content Mr. Robi: yah because we come from the church [unintelligible] P.C. Elkington: yah, yah I can even smell alcohol, I can smell the alcohol on your breath Mr. Robi: Yah, because that’s why [unintelligible] P.C. Elkington: yah, even though you are not allowed though do you sometimes drink alcohol? Mr. Robi: no, because the principles they are keeping [unintelligible] that’s why…I’m keeping the god P.C. Elkington: okay, okay, what’s this drink called that they make? You say they make the traditional drink for the celebration Mr. Robi: uh…[unintelligible] P.C. Elkington: yah, what is it called in Ethiopian? Mr. Robi: light soft drink P.C. Elkington: light soft drink? Mr. Robi: Yah

46Just prior to the second breath the following exchange of questions and answers occurred: [6]

P.C. Elkington: Well, you have alcohol in your system so…yeah Mr. Robi: [unintelligible] in church, I’m keeping the words…because I know I know everything… I was preaching about the holy P.C. Elkington: but how then, how then do you have alcohol in your system? Cause you have alcohol in your blood. And I can smell it. I can smell that you have been drinking. Mr. Robi: Oh really P.C. Elkington: oh yeah, Very strong. You don’t know why that would be? Mr. Robi: Maybe…I’m drinking traditional P.C. Elkington: yah, okay.

47At no time during his discussion with P.C. Elkington did Mr. Robi ever answer her question and tell her the traditional drink was called Tej, despite her asking him on three occasions. It is a homemade and is a fermented drink. In cross-examination Mr. Robi agreed that Tej was Ethiopia’s national drink. He agreed everybody knew about Tej in Ethiopia, including himself. He knew it was fermented at home. He testified an elderly woman in his church was given the responsibility to make the Tej for this celebration. When he was asked if he had spoken to her after he spoke to his wife and learned for the first time Tej had alcohol content in it, he testified he had not spoken to this woman about it.

48Mr. Robi agreed he told P.C. Elkington that the alcohol content in the traditional drink was low or that Tej had “low alcohol content”, but this was because of his problem with English. What he “meant to say was nothing, so this low is because of [his] English” He said low, but he meant to say nothing. He told P.C. Elkington it was made from “organic products” and that it was fermented. Mr. Hewitt referred Mr. Robi to the passages set out above in paragraphs 41 to 43 where Mr. Robi used the term “low” on a number of occasions to refer to the alcohol content and Mr. Robi’s response was “Yeah, maybe this low was stuck in my head – maybe yes.”

49Mr. Robi agreed the children who were at the celebration were not served Tej to drink, rather they were served water or soft drinks. He did not agree the reason the children were not served Tej was because of the alcohol content in Tej. He testified “It’s just a traditional way of serving Tej to adults and Tej is not served to children traditionally.”

50Mr. Robi maintained the bad driving observed by the witness on Kingston Road onto the 401 and from White’s Road in Pickering to Simcoe Street in Oshawa possibly occurred but it was because he was very tired. He left his blinker on after changing lanes because he was tired. He was afraid and nervous when he gave the officer his TD bank card instead of his driver’s license as she requested. He fell asleep in the booth where he spoke to the duty counsel because he was so tired. He answered the questions put to him by P.C. Elkington incorrectly also because of nervous and was not being attentive. He said when he got out of his car he was very tired; it was a confusing environment and probably because of tiredness he walked stumbling. He also had back pain and it was a long day, this was probably why he stumbled. This is the only reason he can present. The only explanation for why P.C. Richardson said he looked sleepy, with glassy eyes, dazed, and looked right through her was because he was tired. He agreed that all of P.C. Richardson’s observation were possible. She was doing her job and this was her perception but his explanation was he was tired. He agreed the odour of alcohol P.C. Richardson observed would not be from his being tired.

51Mr. Robi testified he was fairly certain he left the church at 11:45 p.m. When Mr. Hewitt advised he was arrested at 11:36 p.m. Mr. Robi testified he must have left at 10:45 p.m.

52Mr. Robi was shown the video in the booking area when he attempted to remove the chain with his cross over his head, but it was too small and the officer finally had to assist him in undoing the chain to remove it.

Position of the Parties

53Mr. Capotosto submitted the Crown has not proven beyond a reasonable doubt that Mr. Robi’s ability to operate a motor vehicle was impaired as a result of the consumption of alcohol. He argued that Mr. Robi’s bad driving from Kingston Road coming onto the 401 from White’s Road in Pickering to Simcoe Street in Oshawa was caused by Mr. Robi’s extreme fatigue. The second issue raised by the defence is that there is a reasonable doubt Mr. Robi voluntarily consumed alcohol as his evidence he did not know the Ethiopian traditional drink, Tej, contained alcohol. If I accept Mr. Robi’s evidence or if I reject his evidence but it leaves me with a reasonable doubt, I must acquit.

54The Crown submitted there was ample and sufficient evidence proving beyond a reasonable doubt that Mr. Robi’s ability to operate a motor vehicle was impaired by the consumption of alcohol having regard to Mr. Cowle’s evidence of his observations of Mr. Robi’s driving and P.C. Richardson’s observations of Mr. Robi from her interaction with him. Further, the Crown points to the various videos of Mr. Robi in 19 Division DRPS and his unsteadiness, as well as his inability to recognize his chain with his cross would not fit over his head when he was asked to remove it. The Crown argued Mr. Robi clearly knew the Ethiopian traditional drink – the homemade and fermented honey drink, which is Ethiopia’s national drink contained a “low alcohol content” from his discussion with P.C. Elkington on the breath room video. The Crown argued on the totality of the evidence Mr. Robi’s evidence should not be accepted as credible or reliable and does not create a reasonable doubt.

The Law Relating to R. v. W. (D.) and R. v. Villaroman

55As in any criminal case, Seleshi Robi is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some, or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742. Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

56The onus remains on the Crown to prove Mr. Robi’s guilt beyond a reasonable doubt throughout his trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or even if I reject his evidence I must acquit the defendant if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the Mr. Robi beyond a reasonable doubt. In this case there is one defendant, and he testified on his own behalf. I must consider his evidence to determine whether I accept the evidence given or if I do not accept the evidence given, whether it raises a reasonable doubt in respect of the evidence as a whole. A determination of guilt or innocence must not, however, devolve into a mere credibility contest between the Crown’s evidence and the evidence called by one defendant. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W. (D.), supra.

57Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of a defendant or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: R. v. Lifchus, [1997] 3 S.C.R. 20.

58I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.

59More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offences beyond a reasonable doubt.

60Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v. Villaroman, [2016] 1 S.C.R. 1000, at paras. 55-56 is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence,” (see also R. v. Wu, 2017 ONCA 620, at paras. 9 and 14-15).

61Justice Cromwell, for the Court in Villaroman, cautioned in para. 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

The Law Relating to Involuntary Intoxication

62In impaired driving cases it is best to treat involuntary intoxication as undermining the mens rea or mental state required by the offence. The offence of impaired operation is a general intent offence: R. v. Penno, [1990] 2 S.C.R. 865, at para. 18. A general intent offence is one in which the only intent relates solely to the performance of the act in question, with no other ulterior intent or purpose. In R. v. Cosentino, [2008] O.J. No. 5263 (SCJ, Durno J.) on a summary conviction appeal Justice Durno held at para. 58,” …the mens rea for impaired driving is the intent to operate a motor vehicle after voluntarily consuming alcohol or a drug. The actus reus is the act of operating a motor vehicle when the voluntary consumption of alcohol or a drug has impaired the operator’s ability to operate the motor vehicle: R. v. Towes, [1985] 2 S.C.R. 119.”

63The leading case in dealing with mens rea for impaired operation is the Supreme Court judgment in R. v. King, [1962] S.C.R. 746. Justice Ritchie for the majority held:

The existence of mens rea as an essential ingredient of an offence and the method of proving the existence of that ingredient are two different things, and I am of opinion that when it has been proved that a driver was driving a motor vehicle while his ability to do so was impaired by alcohol or a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence created by s. 223 and must be convicted unless other evidence is adduced which raises a reasonable doubt as to whether he was, through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciate and know that he was or might become impaired. [Emphasis added]

See also R. v. MacCannell, [1980] O.J. No. 996 (C.A.) where Justice G.A. Martin concluded:

I am of the view that the necessary fault or mens rea is supplied by proof of the respondent's voluntary consumption of the liquor, and it is not necessary to prove, in addition, that when he drove the car he either knew that his blood alcohol level exceeded what was permissible, or was reckless with respect to his blood-alcohol level being in excess of that permitted. See R. v. Penner (1974), 16 C.C.C. (2d) 334 (MB CA) at pp. 337-38; R. v. Haverstock (1979), 6 C.R. (3rd) 8 (NS SC).

64In R. v. McGrath, [2013] O.J. No. 3728 (OCJ), at paras. 11-12, Justice Paciocco (as he then was) held:

11 Even though "involuntary intoxication" undercuts one of the elements of an offence, it is appropriate to refer to the "defence of involuntary intoxication." This is because, in a typical impaired driving case. the Crown is not expected to prove voluntary intoxication, and a trial judge cannot speculate about the possibility if it is not supported by evidence. [The above-reproduced passage from R. v. King is then included by Justice Paciocco, but not reproduced]

12 The accused must therefore raise a reasonable doubt about voluntary consumption before a "mens rea defence" of the kind offered by Mr. McGrath can succeed: See R. v. Pitre, [1971] 5 W.W.R. 270 (B.C.C.A). In essence, the voluntariness of proved intoxication is assumed, absent evidence to the contrary.

65In the context of this case Mr. Robi will be innocent of the impaired operation charge if there is affirmative evidence that raises a reasonable doubt that his intoxication by alcohol was voluntary. The issue therefore is whether Mr. Robi’s evidence that he did not know the Ethiopian traditional drink – Tej – had alcohol in it until after he spoke to his wife, after the police charged him with impaired operation (s. 320.14(1)(a)) and 80+ (320.14(1)(b)) raises a reasonable doubt about voluntary intoxication in all the circumstances.

Analysis on Issue of Involuntary Intoxication

66Mr. Robi testified he did not know prior to his consumption of the traditional drink, Tej, which he consumed on August 4, 2019, at the yearly St. Gabriel Celebrations at his church that it contained any alcohol. He only learned of this from his wife after being charged by the police. Mr. Robi testified he was a priest in his church and had been a Deacon and a priest for 40 years in the Ethiopian Orthodox Christian Church, both in Canada and in Ethiopia, before he came to Canada. This is a voluntary position. The celebration was a yearly event and in his evidence he testified this traditional drink, Tej, is always consumed. I took from Mr. Robi’s evidence in chief that he consumed this traditional drink once a year at this celebration. His consumption of Tej on August 4 was not the first time he had consumed this traditional homemade drink. He agreed it was Ethiopia’s national drink. He knew it was homemade, it was made from honey and organic products and was fermented. He testified it has a flowery, honey smell or odour and tasted sweet. There was a lady in the church who he asked to make the Tej for the celebration and she brought it to be consumed by those attending the daylong celebration.

67Mr. Robi testified he came to Canada 10 years before he was stopped by the police and he worked in an auto mechanics shop since coming to Canada. English is not Mr. Robi’s first language and both P.C. Richardson and P.C. Elkington were aware of this. P.C. Richardson asked Mr. Robi if he understood English and he told her he did. When she arrested him for the offence of impaired operation she read him his right to counsel. P.C. Robinson testified she believed Mr. Robi understood the right to counsel when she read and explained it to him. This was because after P.C. Richardson read the right to counsel to Mr. Robi, she asked him the two questions: “Do you understand” and “Do you want to call a lawyer.” Mr. Robi answered “No,” to both questions, to which P.C. Richardson responded, “No to what.” Mr. Robi then responded, “I don’t want to speak to a lawyer, no.” In my view this response clearly demonstrated that Mr. Robi understood completely he had the right to speak to a lawyer but did not want to. Further, Mr. Robi changed his mind after he arrived at the Whitby DRPS police station and he was asked again by P.C. Richardson if he wanted to call his own lawyer or duty counsel. He asked to speak to duty counsel. I accept P.C. Richardson’s evidence respecting this exchange. P.C. Richardson arranged for a call to be made to duty counsel and they called back. Mr. Robi was placed in a private room to speak with duty counsel before entering the breath room.

68On the breath video, Exhibit 5, P.C. Elkington asked Mr. Robi if he had spoken to duty counsel when she first brought him into the breath room and whether he was satisfied with his call. Mr. Robi advised her he had spoken to duty counsel and was satisfied. P.C. Elkington testified she believed that she and Mr. Robi were able to communicate with each other and understand each other. She believed he had spoken to duty counsel and was satisfied with his advice. Mr. Robi had no difficulty understanding how to remove the mouthpiece from its sealed plastic covering, he had no difficulty understanding how to put it into his mouth and he was able to blow into it as directed to ensure there were no obstructions and he finally was able to follow P.C. Elkington’s instructions to affix it to the Intoxilyzer 8000C. It is clear from the breath room video that he was able to follow P.C. Elkington’s instructions on how to provide a proper sample of his breath into this machine and he followed her instructions until she told him to stop blowing. I observed all of this on the breath room video, Exhibit 5, which in my view clearly demonstrated he understood what P.C. Elkington was saying to him.

69Whenever P.C. Elkington asked Mr. Robi a question he did not understand he said to her, “I don’t know,” and P.C. Elkington would then explain again to Mr. Robi what she was asking him, to ensure he understood. I observed P.C. Elkington on the breath room video and in my view she was able to explain and communicate the different legal rights Mr. Robi was entitled to and the procedures he had to follow to provide a proper sample of his breath. She was careful and thorough in her explanations and in my view, from my observations of Mr. Robi on the video, he understood what she was asking him and what she was requiring him to do pursuant to the lawful demand (as conceded by the defence in respect of P.C. Richardson having reasonable and probable grounds to arrest Mr. Robi on the offence of impaired operation).

70It is my view Mr. Robi had no difficulty understanding anything P.C. Elkington discussed with him or the instructions she gave to provide a proper sample of his breath. This is readily observable from watching the breath video. After completing the first breath test Mr. Robi began to discuss with P.C. Elkington the big celebration that had taken place at his church that day. He initiated the discussion about this. It is my view from the breath room video and Mr. Robi’s comments and responses with P.C. Elkington that while English might not be his first language he had no difficulty engaging in the conversation he did with P.C. Elkington and he understood her comments and he responded appropriately and directly to questions he was asked. P.C. Elkington asked about where he was coming from, if he was alone, if the car was his, how much sleep he had the night before, what time it was and whether he had consumed any alcohol. All of his comments and answers were appropriate and directly responsive to what was being discussed and in my view he had no difficulty understanding anything that was said or asked by P.C. Elkington. It is my view that Mr. Robi’s understanding of English was much better than what he testified to in his evidence. This was demonstrated repeatedly during his interaction with P.C. Elkington on the breath room video.

71Mr. Robi’s position in his evidence was that when he talked about the traditional drink, Tej, he consumed during the church celebration, he was in error when he said to P.C. Elkington it had “low alcohol content” and he meant to say it had “no” alcohol content. The difficulty with this assertion is that it was Mr. Robi who first described the traditional drink as “non traditional alcohols” (p. 9 of the transcript of the breath video, Exhibit 5). He told P.C. Elkington he was drinking non traditional alcohols, which were homemade by someone from Ethiopia and that it looked like ginger ale. This was what he was drinking during the celebration. He told her he started drinking this after the celebration at lunch time. He did not consume the traditional drink after lunch. He told her it was organic and maybe it had alcohol in it from that. He told her alcohol is not allowed in his religion and he does not drink wine or beer or spirits.

72P.C. Elkington asked him what the traditional drink was called several times throughout their conversation and Mr. Robi did not tell her, however, during his evidence he advised the traditional drink is called Tej. Mr. Hewitt in cross-examination told him about finding Tej on the Internet and learning it was Ethiopia’s national drink and Mr. Robi agreed. What was Mr. Robi’s reason for not providing the name of this traditional national drink to P.C. Elkington? She asked him on a number of occasions how much he had consumed of this traditional drink. He told her he only consumed it at lunch, however, in his evidence in chief he advised he had consumed it also about four hours after lunch, but it was still five hours before he left from the church in Scarborough to go home to Oshawa. Why the discrepancy as to the quantity he consumed?

73It was Mr. Robi when he was describing this traditional drink who first said: the alcohol content is low in the traditional drink (p. 10 of the transcript). This was not something P.C. Elkington suggested to Mr. Robi in a question. In his evidence Mr. Robi testified when he said “low” he meant “no” but the comment by him “alcohol content is low” does not make sense if he meant to say “alcohol content is no.” Further, when P.C. Elkington repeated his comment and asked, “So it’s a traditional drink with low alcohol content?” Mr. Robi did not respond “Oh no, it’s a traditional drink with no alcohol content,” rather, he said “Yah, it look like ginger ale.”

74Mr. Capotosto pointed to the next exchange between P.C. Elkington and Mr. Robi as supporting Mr. Robi’s position:

P.C. Elkington: Okay so it does have some alcohol in it? Mr. Robi: No

75The problem I have is that when P.C. Elkington then says, “Oh it doesn’t, because if you have alcohol in your blood” Mr. Robi interjects, “Maybe it would come [unintelligible] organic products...organic transform [unintelligible] from Ethiopia okay that’s why maybe.” P.C. Elkington told him that she could smell alcohol on his breath. She asked him if alcohol is not allowed whether he thought alcohol was showing up in his blood because of the homemade drink. He told her that the homemade drink is sometimes sweet, traditional “sometimes making from alcohol content…in my country…it’s a low.” (p. 11 transcript breath video) These are his words and not suggestions put to him by P.C. Elkington.

76Looking to the first consideration under the W. (D) analysis, I do not accept Mr. Robi’s evidence that he did not know that Tej had any alcohol content. It is my view the breath video demonstrates Mr. Robi’s knowledge about Tej. He knows it is homemade from honey and organic products and that it is fermented. When he was asked by Mr. Hewitt if he knew the traditional drink was fermented, initially he did not answer but finally he agreed he knew it was a fermented drink. This is a traditional drink he agreed is not provided to the children who attend this celebration and his explanation when it was suggested by Mr. Hewitt the reason was because it contains alcohol did not make sense if in fact Tej did not contain any alcohol whatsoever. Further, as I’ve already indicated Mr. Robi did not answer P.C. Elkington’s repeated query as to what this traditional drink was called. In my view he was aware if she looked Tej up on the Internet she would discover what Mr. Hewitt found. In my view the most significant inconsistency between Mr. Robi’s evidence and what he told P.C. Elkington was the fact he admitted to her and said on several occasions that this traditional drink had “low alcohol content” or he called it a “non-traditional alcohols.” When confronted with the smell of alcohol on his breath and by the alcohol in his blood shown on the results of the Intoxilyzer 8000C, Mr. Robi’s explanation was it must have been caused by the organic products in the homemade traditional drink. In my view what Mr. Robi was saying to P.C. Elkington was that the homemade traditional drink was not like beer or wine or spirits, which he does not consume, it only has low alcohol content. I also find that Mr. Robi has not raised a reasonable doubt as indicated in R. v. King and by Justice Paciocco (as he then was) in R. v. McGrath. For all of the reasons stated, considering the totality of the evidence I find Mr. Robi was aware the Tej, this traditional homemade fermented drink he consumed contained alcohol and he drove his motor vehicle with this knowledge. As I have no evidence that I accept which raises a reasonable doubt that Mr. Robi may have become involuntarily intoxicated because of a lack of knowledge, the presumption of voluntary intoxication remains undisturbed.

77The remaining issue to determine on this trial is whether the Crown has proven beyond a reasonable doubt that Mr. Robi’s ability to operate his motor vehicle was impaired by alcohol.

The Law Relating to Impaired Operation of a Motor Vehicle

78There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato, [1994] 2 S.C.R. 478; Graat v. The Queen, [1982] 2 S.C.R. 819, at 400-401. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell, at 320:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. [Emphasis added.]

And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Emphasis added.]

79The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews, 1996 ABCA 23, at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

[I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

... [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

80In R. v. Bush, 2010 ONCA 554, at para. 47, the Ontario Court of Appeal cited Stellato and Censoni with approval and held, “Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.”

81In my view the Crown has proven Mr. Robi’s ability to operate a motor vehicle was impaired by the consumption of alcohol based on my considering the totality of the evidence. Mr. Robi conceded in cross-examination it was possible he had driven in the manner described by Mr. Cowle, who followed him from the Kingston Road bypass in Scarborough merging onto the 401 Highway from before Whites Road in Pickering to Simcoe Street in Oshawa and then to a parking lot at 55 Whiting Avenue in Oshawa (approximately 20 km). Mr. Cowle was an independent witness, who was driving home with his wife and his 16 year old daughter. He was driving home from his father-in-law’s house in Scarborough at 11:00 p.m. His attention was drawn to Mr. Robi’s Rav4 because of the driver’s erratic driving and the actions he observed other drivers taking to avoid a collision caused by the erratic driving of the driver in the Rav4. In my view Mr. Cowle had no reason to fabricate, embellish or lie about his observations. He did not know who the driver was. He initially thought the driver in the Rav4 was on his cell phone but his belief changed because of the continuation of the erratic driving and near collisions and evasive action other drivers were required to take and the Rav4 almost colliding twice with the centre median. He called 911 as a result and advised of a driver who was impaired. Mr. Cowle recounted many of his observations to the 911 operator when he called to report an impaired driver on the 401. His observations of Mr. Robi’s driving were as follows (from his testimony, the 911 call and the short video taken by his wife):

1. He first observed the Rav4 at approximately 11:05 p.m. engaging in side-to-side swerving in the lane it was driving in;
2. The Rav4 almost collided with another vehicle by going over the dotted line, causing this vehicle to move out of its lane to avoid being struck;
3. The other 4-5 vehicles, which were behind the Rav4 all sped up and went around it, they all went “pretty far around the vehicle, I guess out of defensive- just to get away”;
4. Mr. Cowle’s car was about three vehicle lengths behind the Rav4, the roads conditions were fine but the lighting on Kingston Road is dark and it is only 2 lanes. He stayed behind the vehicle and did not try to pass because of his knowledge of the area where he knew wildlife run across the lanes. This portion of Kingston Road from where he first saw the Rav4 until the merge onto 401 Highway is 1.5-2 kms;
5. As the Rav4 merged onto the 401 it pulled over and almost struck another two vehicles on the 401, the Rav4 cut off these two vehicles that were driving at a faster rate of speed travelling eastbound as the Rav4 moved left across the first two lanes of the collector lanes;
6. The Rav4 then moved to the farthest left lane in the collectors, went over the solid line and almost struck the centre median or concrete barrier;
7. Originally when Mr. Cowle saw the Rav4’s erratic driving on Kingston Road he thought the driver was on his cell phone but after observing the Rav4 merging onto the 401 and cutting across lanes, cutting off vehicles and then almost hitting the centre median he believed it was more – he believed that the driver was impaired;
8. When the driver moved across those three lanes of the collector lanes Mr. Cowle saw that the driver did not look to his left to see if there was any oncoming vehicles and this was why he almost collided with these vehicles;
9. As the Rav4 continued eastbound in the far left lane it was swerving side to side until it got to Whites Road when it once again went over the solid line by three or four feet and almost collided with the centre median. This was when he decided to call 911 at 11:13;
10. He advised the 911 operator of this vehicle’s erratic driving, swerving, cutting off vehicles, almost hitting the cement barrier, crossing over lines, just overall lack of attention to driving. Mr. Cowle decided to stay behind the vehicle rather than pass it so he could advise police where it was going, the 911 call is Exhibit 2;
11. Between Whites Road and Brock Road there was swerving and erratic movements as before. There were not many vehicles around it because other drivers had gone around the Rav4 due to its erratic driving;
12. Mr. Cowle’s wife, who was sitting in the passenger seat, took a video with their daughter’s cell phone just before Brock Road, Exhibit 1: the video demonstrated that the Rav4’s turn signal would stay on for a long time after a lane change was made, the video showed one close call with another vehicle that was moving past the Rav4, which because the Rav4 swerved to the right that vehicle had to brake and swerve to avoid being struck, the speed of the vehicles at the time was between 110-120 km/hr, Mr. Capotosto suggested this was not depicted on the video, however, in my view Mr. Cowle showed Mr. Capotosto and the Court on the video where the Rav4 can be seen moving to the right causing this other vehicle to have to brake abruptly to avoid a collision;
13. The Rav4 increased its speed after Brock Road and Mr. Cowle was positioned further behind it, he observed similar erratic driving, the Rav4 almost colliding with other vehicles to its right, at one point the Rav4 moved to its right such that Mr. Cowle thought it was going to hit the rear axle of a tractor trailer as it swerved out of its lane into the tractor-trailer’s lane, which was between Thickson and Park Road - close by the weigh scales, the tractor trailer driver did not have to take evasive action;
14. Mr. Cowle testified he sped up at this point to get closer to the Rav4 as his other daughter was getting off work and would be coming onto the 401 at Stevenson and he was concerned for her safety given the Rav4’s erratic driving;
15. After the near collision with the tractor-trailer, the Rav4 slowed down and moved to the right two lanes from the far left lane, the first lane change was in front of the tractor-trailer and then to the next lane to the right and finally it exited on the Simcoe Street ramp, which ends at Bloor Street. To get to Simcoe one has to turn left onto Bloor;
16. At Bloor Street the Rav4 was in the right hand lane with the right indicator on, but it all of a sudden turned left and went east on Bloor (Mr. Cowle testified this can happen to persons who are not familiar with the Oshawa streets, so he did not think much about this action) [7];
17. The Rav4 then turned south on Simcoe, continued three streets and then turned onto Whiting and went into a building’s parking lot at 55 Whiting at 11:33 p.m., there was nothing of note as to the Rav4’s driving once it turned onto Bloor Street;
18. Mr. Cowle was on the phone with P.C. Richardson when he was at Bloor Street and provided the directions and address the Rav4 drove to The police cruiser arrived shortly after (11:34 p.m.) and Mr. Cowle pulled in behind the cruiser into the parking lot.

82Mr. Capotosto submitted Mr. Cowle was exaggerating the extent of Mr. Robi’s poor driving and pointed to the video as not depicting Mr. Robi’s Rav4 moving to the right such that another vehicle had to brake abruptly to avoid being struck. With respect to the video as I indicated above, I have watched this brief 30 second video made with a cell phone by Mr. Cowle’s wife from the passenger seat on a number of occasions. Mr. Cowle asked Mr. Capotosto to move the video to the point where this near collision occurred. It depicts exactly what Mr. Cowle testified to from the vantage point of the passenger and as Mr. Cowle explained he had a much clearer vantage point of observation in the driver’s seat. I did not find Mr. Cowle to be exaggerating. His call to 911 itself demonstrates the concern he had respecting what he described as erratic driving by the Rav4, a complete lack of attention to the other vehicles on the 401 Highway at speeds approaching 120 km/hr. He offered in his evidence in chief his initial belief that the Rav4’s driver was perhaps on a cell phone but that changed as a result of the number of occasions the Rav4 cut off other vehicles, changed lanes without looking to see if faster traffic was coming and then on two occasions moving three to four feet over the solid line of the far left lane and almost striking the centre concrete barrier or centre median. It was after the second occasion he decided he needed to call 911 because now he believed it was not someone using a cell phone, rather, it was an impaired driver.

83Although Mr. Capotosto cross-examined Mr. Cowle on his initial belief that the Rav4 driver was on a cell phone, Mr. Robi did not testify he was using his cell phone as he was driving on Kingston Road or the 401 Highway. As I indicated earlier Mr. Robi conceded in cross-examination he possibly drove in the manner described by Mr. Cowle.

84Mr. Robi’s only explanation for his driving was what he described as his being very tired due to waking up early and spending the day at his church during the St. Gabriel Day’s celebrations. It is interesting to note that when Mr. Robi is asked how many hours he slept the night before he told P.C. Elkington he slept 8 hours. It is my view Mr. Robi was exaggerating the degree of tiredness he was experiencing after the church celebrations that day to provide an excuse or justification for the erratic driving observed by Mr. Cowle. Mr. Robi may very well have been tired to some extent from his long day at his church; however, I find it was the combination of both his tiredness and his consumption of this traditional Ethiopian national drink Tej, which was impairing and affecting his ability to operate his Rav4. In my view impairment can be caused by a number of factors and if alcohol is one of the factors and part of the combination of factors causing impairment, it does not matter how much alcohol a person consumes. (See R. v. Bartello, [1997] O.J. No. 2226 (C.A.) the Court of Appeal held the fact the appellant was suffering from fatigue and jet lag did not mean the trial judge was in error finding alcohol was a contributing factor.) [8] There is no requirement for the Crown to prove in an impaired operation prosecution that a defendant’s blood alcohol concentration is above a certain level. As I indicated, the caselaw is clear, impairment however slight is sufficient to prove a charge of impaired operation.

85There are a number of pieces of evidence relating to the amount of Tej Mr. Robi consumed that should be considered in assessing Mr. Robi’s credibility and reliability. First, he told P.C. Elkington he never consumed alcohol – beer, wine, or spirits- because it was against the principles and doctrine of his religion’s beliefs. He testified he only ever consumed “traditional beer” in Ethiopia when he was a young boy, maybe when he was 18 years old, on one occasion. He had never consumed alcohol at any time to the point of becoming intoxicated. This might explain why Mr. Robi was unaware of the effects of consuming the traditional drink – Tej – in terms of his driving or how any amount of alcohol might interact with the fact he was, on his evidence, extremely tired from being involved in a day long celebration at his church.

86He admitted he had previously consumed some quantity of Tej, although it was unclear as to how much or whether it was at every yearly church celebration where Tej is consumed over his years as a priest. He testified he was a deacon from the age of 5 and that he was a voluntary priest for 40 years. He told P.C. Elkington he only consumed this traditional homemade drink - Tej - during lunch at this year’s celebration, but he did not tell her what amount or the quantity he consumed, despite her asking him directly on several different occasions. He also would not answer her question as to what this traditional drink was called, again despite her asking him on several occasions. Yet on the trial proper he admitted to consuming a cup of Tej at lunch and then four hours later he testified he consumed another cup of Tej, which he said he mixed with club soda, but this was five hours before he drove home. In my view his explanation for why he mixed the Tej with club soda did not make sense. When he was asked if he served himself this traditional drink he said he was served it by the servers. He later added the Tej was in the smallest white cup one can buy from the dollar store, which begs the question of what quantity he actually consumed. In my view this was another example of Mr. Robi being evasive in his answers to questions by the Crown. In my view this is a noteworthy inconsistency between what he told or did not tell P.C. Elkington about how much Tej he consumed and his testimony on the trial proper.

87Mr. Capotosto attempted to discount the observations of P.C. Richardson by submitting she was the only witness who detected an odour of alcohol coming from Mr. Robi’s mouth. This submission was not accurate as P.C. Elkington, who was called by Mr. Capotosto on the blended hearing dealing with the Charter application and whose evidence, including the breath video, was agreed by Mr. Capotosto to be admissible on the trial proper, told Mr. Robi on two occasions she could smell alcohol coming from his breath. [9] On the second occasion when he said, “Oh really?” P.C. Elkington said, “Oh yeah, very strong. You don’t know why that would be?” This was one of the occasions when Mr. Robi said, “Maybe – I’m drinking traditional...This is the first time into my history” P.C. Elkington also advised Mr. Robi that the breath machine he blew into showed he had alcohol in his blood and this was when Mr. Robi indicated it was probably the traditional drink and the organic products. [10] Mr. Robi said this to P.C. Elkington prior to speaking to his wife after coming home after he was released from the police station facing two charges, impaired operation (s. 320.14(1)(a) and 80+ (S. 320.14(1)(b)) contrary to Mr. Capotosto’s submission.

88P.C. Richardson also made a number of observations of Mr. Robi, in addition to the odour of alcohol coming from his breath, both when she first formed her reasonable grounds (which were conceded by the defence) and her observations of Mr. Robi as he exited and walked to her police cruiser:

1. Glassy eyes;
2. Mr. Robi appeared sleepy;
3. Looking at her as if he could not see her, a dazed look;
4. His movements were slow and deliberate;
5. He provided her with his TD bank card when she requested his driver’s license;
6. He stumbled when he stepped out of the car (which was observed by Mr. Cowle, who also saw Mr. Robi steady himself by holding onto the vehicle;
7. He was unsteady on his feet when he walked from his vehicle to the police vehicle.

89Further, I watched the videos filed by Mr. Capotosto of Mr. Robi interacting with police officers at the Whitby DRPS police division during his walking into the station from the sallyport and later standing in the booking area. I have watched these videos, which were filed by the defence as Exhibits, several times and made the following observations of Mr. Robi while he was walking and standing in one place: he walked with a side to side swaying motion and when he stood in one place he moved and swayed side to side and was not able to stand still in one spot; when the handcuffs were removed he stood shifting his weight from one foot to the other foot. At one point a necklace had to be removed from around Mr. Robi’s neck, he tried to remove it by pulling it over his head, but it was too narrow, he then tried to undo the clasp, but he was unable to undo it himself – an officer had to remove it. After it was removed Mr. Robi’s swaying from side to side continued more noticeably. These observations in my view are consistent with someone who is impaired by alcohol.

90Mr. Capotosto argued there is another explanation for P.C. Richardson’s observations of Mr. Robi, which he submitted were “in many aspects equally consistent with Mr. Robi’s testimony that he was exhausted and had an extremely long day.” Further, he submitted the “slight” difficulty Mr. Robi had walking can be explained by the back pain he described he was feeling at the end of the day. During the breath video Mr. Robi told P.C. Elkington he did not have any illnesses or injuries when she asked that question, which is inconsistent with his evidence of injuring his back and experiencing back pain when he has to stand for long periods of time. From my review of the various videos introduced, including the breath video I did not observe Mr. Robi to be experiencing back pain.

91As I indicated above, the cases clearly identify that more than one factor, including the consumption of alcohol, can contribute to an individual’s impairment. P.C. Richardson and Mr. Cowle did not describe the stumbling and unsteadiness as Mr. Robi having slight difficulty walking. Further, this ignores the observations from the videos of Mr. Robi at the police station, swaying when he is walking, shifting his weight from foot to foot, swaying side to side as he was standing in one place and the difficulty he had taking off his necklace over his head because the chain was not large enough. The offering of his TD bank card as his driver’s license is in my view a classic circumstance of someone who is under the influence of alcohol, misidentifying what the officer has requested. Mr. Robi’s looking at the officer as if he could not see her with a dazed look is also a classic indicia of being under the influence of alcohol.

92Further, Mr. Capotosto’s submission concerning Mr. Robi’s driving as being a “slight departure from the standard of care of a reasonable driver” does not in any way approach the erratic and dangerous nature of Mr. Robi’s driving described by Mr. Cowle on the 401 Highway for over 20 km, not paying attention when making lane changes, leaving his indicator on after changing lanes, cutting off vehicles, swerving within his lane side to side, forcing other vehicles to take evasive action to avoid being struck by his vehicle, all of which in my view demonstrates someone whose ability to operate a motor vehicle is impaired by alcohol or someone whose tiredness was exacerbated by their consumption of alcohol, particularly someone who is an inexperienced drinker of alcohol as Mr. Robi described himself to be. It should be noted that it is not necessary for the Crown to show a marked departure from the standard of care of a reasonable driver. In my view on the totality of the evidence Mr. Robi’s impairment was anything but equivocal, as submitted by Mr. Capotosto. The observations of Mr. Cowle of Mr. Robi’s driving and P.C. Richardson’s observations are not circumstantial evidence but are direct evidence of the observations of two witnesses. P.C. Richardson is an experienced OPP officer who has investigated impaired drivers for 16 years.

93In my view Mr. Robi was not a credible or reliable witness. His testimony was tailored to attempt to convince the court his understanding of the English language was extremely poor and lacking, yet the breath room video clearly demonstrated that while his English might be broken he was fully capable of not only understanding P.C. Elkington, but he engaged in an interactive conversation about a whole range of topics. His insistence he only understood simplistic questions put to him by the two officers does not accord with reality from what can be seen on the video. As I have already indicated concerning his evidence of not knowing Tej had alcohol content in my view Mr. Robi was not being forthright in his evidence concerning his lack of knowledge and that the breath video demonstrates he was fully aware of the fact this homemade, fermented traditional drink had a low alcohol content.

94Considering the totality of the evidence in this case I have no doubt Mr. Robi’s ability to operate a motor vehicle was impaired by his consumption of the traditional, homemade, fermented drink.

Released: September 13, 2021 Signed: Justice Peter C. West

[1] Mr. Capotosto initially on the first day, December 3, 2020, (p. 65 of transcript) of evidence conceded identity was not an issue but on March 22, 2021, when the trial resumed, he indicated he was not conceding identity and did not agree he had admitted identity. He ultimately conceded the officer could identify his client when the Crown sought a ruling his client would need to remove his mask so the officer could see his full face. [2] The transcript references are from the Transcript of Mr. Robi’s evidence on July 13, 2021, transcribed from the Liberty court recording, as well as my listening to the Liberty court recording if my notes disagreed with the transcript or there was an [indiscernible] notation in the transcript. [3] Exhibit 5 Breath Room video, pp. 8-9. [4] Exhibit 5, p. 9. [5] Exhibit 5, p. 11-12. [6] Exhibit 5, p. 14. [7] It is important to note that this concession does not have application to Mr. Robi as he had to turn left to get to Simcoe to proceed south to Whiting where he lived. Therefore, it was not a situation of a motorist not being familiar with this exit ramp and how to get to Simcoe Street. [8] There are a number of decisions where courts have held multiple factors may be responsible for an individual’s ability to operate a motor vehicle being impaired, if the consumption of alcohol is one of the factors this is sufficient to establish impairment. R. v. Spina, [1999] O.J. No. 5130 (OCJ, Finnestad); R. v. Connery, [1996] O.J. No. 5037 (OCJ); R. v. Payette (1991), 29 M.V.R. (2d) 3 (BCCA); R. v. Nga (1991), 14 W.C.B. (2d) 458; R. v. Pelletier (1989), 51 C.C.C.(3d) 161 (Sask Q.B.) and R. v. Thomas, [1990] O.J. No. 3174 (OCJ). [9] Exhibit 5, breath video, p. 11 and p. 14. [10] Exhibit 5, breath video, p. 10 and p. 14.