Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 04 16 COURT FILE No.: Brampton 3111 998 17 4094

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

REGINA DOS SANTOS

Before: Justice G.P. Renwick

Heard on: 11, 12 June 2019 and 14 April 2021 Reasons for Judgment released on: 16 April 2021

Counsel: C. Henderson and G. Morris, for the Crown J. Dos Santos, for the defendant Regina Dos Santos

RENWICK J.:

INTRODUCTION

1The Defendant is charged with having an excess blood alcohol concentration while driving (“over 80” or “excess BAC”) and driving while impaired by alcohol (“impaired driving”), both of which occurred under the former legislative regime. Given my decision that the breath testing results are inadmissible in this trial, the legislative change has no bearing on the outcome.

2Additionally, the Defendant is charged with two counts under the Highway Traffic Act: s. 84(1) - operate motor vehicle in unsafe condition and s. 200(1)(a) - failure to remain at the scene of an accident. The parties agreed to try both sets of charges together.

3The trial began over 22 months ago and for various reasons only completed recently. During the trial, I granted a directed verdict of acquittal of the provincial offence relating to an accident given a lack of evidence establishing how the Defendant’s car came to be stopped on the highway or what had caused significant damage to her car. Perhaps due to the passage of time, neither party made any argument on the remaining provincial offence at the end of the trial.

4The Defendant brought a Charter Application under ss. 8, 9, and 10(b) to challenge the lawfulness of the Defendant’s arrest and evidential breath demand in order to exclude the breath readings obtained by the police. Additionally, in furtherance of the exclusion of the breath sample results, the Defendant alleges that the police failed to take into account the Defendant’s obvious language difficulties, which resulted in the failure to provide meaningful access to counsel.

5The parties agreed to litigate the Charter Application and the trial in a blended fashion with the evidence of the prosecution proceeding for both purposes concurrently. The Defendant testified on the Application and called no evidence on the trial.

APPLICABLE LEGAL PRINCIPLES

Proof Beyond a Reasonable Doubt

6The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of the offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt about the Defendant’s guilt on any offence, she will be acquitted of the charge.

7A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. [1] If after considering all of the admissible evidence I am sure that the Defendant committed the alleged offence I must convict her, since this demonstrates that I am satisfied of her guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

Circumstantial Evidence

8In this case, the evidence of alcohol-impaired driving is circumstantial. In order to be satisfied that the Defendant’s impairment by alcohol exclusively accounts for her behaviour and driving beyond a reasonable doubt, I must be satisfied that it is the only reasonable inference available on the evidence. [2] In assessing the case, I must consider the evidence cumulatively and as a whole. Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the prosecution has met its burden. Gaps in the evidence must also be considered and they may raise a reasonable doubt.

The Charter Application

9On the Charter Application, the Defendant bears the burden of proof on a balance of probabilities that the police violated one or more of her Charter rights. Additionally, the Defendant must establish, also on a simple standard of proof, that a remedy flows from any violation of her constitutional rights.

10Given that the prosecutor seeks to adduce evidence obtained from a warrantless search (the breath sampling procedure), I must be satisfied on a balance of probabilities that the search was authorized by law, the law is reasonable, and the search was conducted reasonably: R. v. Collins, [1987] S.C.J. No. 15 at para. 23.

Reasonable Grounds to Believe

11Reasonable grounds to believe an offence has been committed must be articulable, subjectively held by the officer, and objectively reasonable. [3] The officer is entitled to rely on hearsay, unless she has a reason to doubt the truth of the information.

12Obtaining reasonable grounds does not demand perfection or even perfect accuracy. Police officers embarking on an investigation are entitled to be wrong. As long as their grounds are objectively reasonable, rather than based on vague suspicions, intuitions, hunches, or worse, improper motives, the grounds may eventually be found to be incorrect.

13The standard of reasonable grounds is credibly-based probability. [4] Alternative explanations for observed signs of possible alcohol-related impairment do not undermine reasonable grounds, unless the officer unreasonably discounted information of which she was aware but failed to consider.

14Reasonable grounds are not proof on a balance of probabilities, but they involve being satisfied of the probability of a state of affairs. The officer can be mistaken in the belief, as long as her belief is reasonable and there was no reason for her to doubt the information she believed.

15The Ontario Court of Appeal affirmed these principles in R. v. Notaro:

The reasonable and probable grounds test is not about the quality of the investigation or the range of the questions the officer asks herself. It turns on whether an arresting officer's honest, subjective belief that an offence has been committed is supported by the objective facts that the officer was aware of: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 71-72. As Durno J. (sitting ad hoc) noted in Bush, at para. 70"the issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so."

This is not to say that the quality of the investigation will have no practical bearing on whether the arresting officer has reasonable and probable grounds. After all, the nature and quality of the investigation will affect the information that the officer has, and can therefore indirectly influence the sufficiency of the officer's grounds. The point is that the material focus in a reasonable and probable grounds analysis is not on the extent of the investigation that an officer goes through in forming her belief. The material focus is on what the information known to the officer would mean to a reasonable person. [5]

16Recently, our Court of Appeal considered the standard for a warrantless arrest in R. v. Carelse-Brown, [2016] O.J. No. 6564. At paragraph 28 of Carelse-Brown, the Court quoted from its decision in R. v. Golub:

In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. [6]

“Special Circumstances” and S. 10(b) of the Charter

17The law is settled in respect of the need on the part of the police as it concerns language difficulties encountered by the Defendant:

The police may not be required to go to extreme means in order to respect an accused's rights under s. 10 of the Charter. It is necessary, however, in order to comply with the section that an accused be meaningfully informed of the rights. The accused must understand what is being said to him or her and understand what the options are in order that he or she may make a choice in the exercise of the rights guaranteed by the Charter.

It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 of the Charter. As s. 10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights.

If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in the circumstances. [7] [Emphasis added]

18Where “special circumstances” exist, the police are required to take reasonable steps to ensure that the Defendant understands his or her constitutional right to counsel. [8]

19The law is also clear that a detainee is not required to request to speak to a lawyer or duty counsel in her own language, since she may not be aware of this right. Once “special circumstances” are triggered, the police are required to advise the detainee that she may consult counsel in another language or take other steps to ensure that the detainee comprehends her constitutionally protected options. [9]

20Individual police officers’ subjective beliefs respecting the Defendant’s ability to understand their rights to counsel are not determinative. [10] A court must decide whether or not the Defendant meaningfully understood her right to counsel and the options presented in order to exercise that right and the existence of “special circumstances” must be assessed objectively. [11]

THE EVIDENCE AND FINDINGS OF FACT

The Charter Applications

21There were two complaints alleged by the Defendant respecting her rights. First, the police violated her s. 9 right by arresting her in the absence of reasonable grounds to believe an offence had been committed. Second, the police failed to provide meaningful access to counsel when they did not recognize the special linguistic circumstances of the Defendant and take adequate steps to ensure she comprehended her jeopardy and legal options. I will deal with each in turn.

22Provincial Constable Joseph Carullo testified about the information he had received on his police radio concerning a jeep, which had possibly been involved in a collision in the early morning hours on highway 401. The jeep was being followed by a tow truck with its light-bar activated on highway 403 towards Hurontario. The jeep was apparently driving at a reduced speed of 60 km/hr, rather than the posted speed of 100 km/hr on that highway. The officer had information from his communications centre that the female motorist had told the tow truck driver that she was not drunk and she had been observed trying to pull off her vehicle’s front bumper. Constable Carullo arrived at the exit from highway 403 onto Hurontario just before the jeep driven by the Defendant arrived.

23Constable Carullo testified that he saw the tow truck driving behind the suspect vehicle. The jeep with extensive front end damage and a hanging front headlamp was observed to make a wide turn when exiting the off ramp onto northbound Hurontario Street. The officer could hear metal dragging as he observed the jeep straddling two marked lanes for northbound traffic. He activated his emergency equipment and the jeep swerved to the left and almost collided with the centre median when it came to a stop. The officer approached the driver, now known to be the Defendant, observed that the driver’s air bag had been deployed, and he asked if she was okay. She told the officer she had hit a cone. He smelled alcohol on her breath and noticed that she had red, blood-shot eyes and slurred speech. She admitted she had consumed one beer and it was her birthday.

24The officer testified in chief:

A. At this time, I had reasonable grounds to believe that Ms. Dos Santos was operating a motor vehicle with alcohol in her body, and I placed Ms. Dos Santos – at 1:28 am, she was placed under arrest for that…

THE INTERPRETER: At what time was that?

A. 1:28 am.

Q. And what was she arrested for?

A. Sorry, it was operating a motor vehicle while ability impaired by alcohol.

25In cross-examination, the officer was asked a single question about his grounds for the Defendant’s arrest:

Q. Okay. All right. So, at that point, she is then placed under arrest, and I want to make sure that I got your grounds correct here. So, at 1:28, your evidence was that you had reasonable grounds to believe that she was operating a motor vehicle with alcohol in her body and placed her under arrest?

A. Reasonable grounds to believe she was operating a motor vehicle while her ability was impaired.

26The Defendant was not asked about the officer’s observations. There was no other evidence led during the Application to cast any doubt on the officer’s grounds for believing an offence had been committed.

27Counsel for the Defendant suggests two problems with the Defendant’s arrest: The officer did not subjectively believe she was driving while impaired by alcohol and there were no objectively reasonable indicators that her manner of driving related to alcohol consumption.

28I reject these arguments for at least two reasons. Firstly, I believe Constable Carullo. His evidence in this area was not challenged directly or by other evidence. His observations are detailed and his evidence was consistent throughout. Though he appears to have misspoken when he initially addressed the reason for the Defendant’s arrest, it was quickly corrected. I find that he possessed the requisite subjective component of reasonable grounds to believe that the Defendant was impaired in her ability to drive by alcohol based on the totality of the circumstances before him.

29Secondly, the officer’s grounds were reasonably believed. It was entirely likely that the significant front end damage and evidence of a collision (air bag deployment, metal dragging, smell of burnt rubber) coupled with the apparently slurred-speech, red, bloodshot eyes, the smell of alcohol on the Defendant’s breath, her admission of alcohol consumption and the fact of her birthday (possibly giving a reason for alcohol consumption), along with the poor driving observed by the constable (wide right turn, driving while in two lanes of traffic, and swerving and almost colliding with the centre median), and the report of slow driving on a 400 series highway, a denial of being drunk, and attempts to take off the front bumper, could be explained by alcohol impairment.

30Counsel for the Defendant submits that bloodshot eyes from fatigue, an accent misperceived as slurred speech, and mechanical issues affecting driving account for the circumstances and undermine the reasonableness of the officer’s misstated belief. Though these are alternative reasons for some of the officer’s observations, they do little to remove the objective reasonableness of the conclusion he formed at the time.

31There was no evidence adduced that the Defendant is prone to red, bloodshot eyes or that the vehicle could not travel above 60 km/hr, or that the front end damage caused the Defendant to have difficulty maneuvering. Though the Defendant testified in cross-examination that she was pulled over where she was intending to make a left turn to travel home (perhaps explaining why she pulled to the left rather than pulling over to the right side of the road), she did not deny any of the poor driving apparently observed by Constable Carullo (or Mr. Hannora, for that matter). Also, the Defendant admitted that she drove slowly before exiting the highway, confirming the tow driver’s report to police.

32After a consideration of all of the evidence on the Charter voir dire, I find on a balance of probabilities that it was entirely objectively reasonable for any observer faced with the totality of information and circumstances before Constable Carullo to believe that the Defendant was impaired by alcohol while driving.

The Language Issue and S. 10(b)

33This part of the Defendant’s Application succeeds.

34I have significant reservations of the credibility of the complainant given her testimony on the voir dire. During her examination in chief, the Defendant claimed to be “very fearful” when dealing with the police, but her behaviour with the Qualified Technician, Robert Visconti, completely undermines this testimony. As well, she testified in cross-examination that all of the officers she dealt with were polite and helpful and she could not recall why she had initially testified that way.

35Moreover, the Defendant’s explanation of the collision, the apparent damage, and her reasoning for continuing to drive stretch credulity and defy common sense. Driving with parts of the jeep dragging, with significant front end damage (her hood was “tented” according to Constable Carullo), and after her airbag had deployed demonstrate extremely poor judgment and perhaps alcohol induced intoxication. However, the Defendant’s apparently limited English language abilities and comprehension are not seriously contested. I do not find that her credibility in this area was significantly undermined.

36I agree that the Defendant spoke English reasonably well on the breath sampling video (exhibit 7):

i. She answered all manner of questions reasonably well;

ii. She followed directions reasonably; and

iii. She spoke comfortably with Constable Visconti.

37Also, there were times during the voir dire where the Defendant did not use the court ordered interpreter and could easily answer in English.

38However, linguistic abilities are variable. Strengths in one area do not imply facility in others. The ability to speak conversational English and follow simple directions, which are physically demonstrated by the police, does not necessarily correspond with an ability to understand the informational component of one’s right to access counsel of choice or the ability to communicate with counsel about one’s legal jeopardy.

39On this point, I adopt the reasoning of Justice Dawe in Nguyen, supra:

Finally, and perhaps most importantly"the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination": R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at para. 40. These purposes will best be achieved by erring on the side of caution and giving detainees the option of speaking to counsel in their language of choice whenever there is a good reason to be concerned about their ability to obtain meaningful legal advice in English. [12]

40In the end, I accept what the Defendant said about her inability to understand aspects of the right to counsel. The evidence of Constable Carullo that the Defendant did not initially want to speak to a lawyer and then for no apparent reason changed her mind support this finding. The extremely brief amount of time spent on the telephone with Duty Counsel also tends to corroborate this.

41Surprisingly, the police evidence was consistent. Not one officer believed that the Defendant had any language issues. However, this evidence is undermined by the Defendant’s evidence, which I accept, and the obvious struggle she had to express herself in English at various points of the breath sampling procedure. The breath room video contains many instances where the Defendant required simple questions or instructions to be repeated despite Constable Visconti’s clear speaking voice. The video also establishes the Defendant’s inability to find her words, her use of gestures to communicate instead of speech, and examples of broken phrases and poor grammar.

42These all signalled her difficulty with the English language. Although the questions asked by Constable Carullo lend themselves to monosyllabic responses, it was plainly obvious during the breath sampling that the Defendant does not understand and communicate well in English. Despite this, no questions were asked, nor were any steps taken by the police to ascertain the Defendant’s actual comprehension or to assist her in this regard.

43In the end, given the obvious linguistic challenges and despite her apparent understanding of police instructions, I find that the police ought to have taken further steps to ascertain whether the Defendant was truly understanding the information she was given and whether or not she wanted to speak to a lawyer in her mother tongue. The failure to take these simple steps amounted to a violation of the Defendant’s s. 10(b) Charter rights.

Section 24(2) of the Charter

44The prosecutor fairly conceded that if a s. 10(b) violation was found, the evidence of the Defendant’s BAC would have to be excluded. I agree with this concession. The breach was serious, unmitigated, and easily avoidable. This type of constitutional failure has been held to have a significant impact on a detainee:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. [13]

The Trial Evidence and Findings of Fact

45The evidence proffered on the impaired operation count consisted of the testimony of Constable Carullo and Mr. Mohamad Hannora, the tow truck operator who reported the Defendant’s driving to the police. Constable Scott only noticed that the Defendant had glossy eyes and slurred speech and he did not see any gross motor movements or driving. In contrast, Constable Visconti did not note slurred speech, and he noted that the Defendant’s balance was “sure.” However, the Qualified Technician also observed that the Defendant’s hand movements appeared “very exaggerated.”

46Mr. Hannora testified that around 1:00 am he saw “a car that hit the concrete, left side of the highway” on the 401 express heading west. He stopped to offer assistance. He asked the Defendant if she was okay and she responded, “No, I’m not drunk.” He asked her if there was anyone he could call or did she want his assistance “to take her off the road, as we are on the highway, it’s very dangerous.” She told him no. He noted that her bumper was hanging down and there was fluid on the “floor” as she drove away. He testified that because of this it was “very dangerous for her life and somebody else’s life as well.”

47Mr. Hannora testified that he called the Ontario Provincial Police (“OPP”) because “I think that the lady was impaired or possibly impaired, I’m not sure.” He followed her with his flashing beacons on.

48He said he kept his flashing lights on because she “was swerving from right to left – wasn’t – and I was afraid that she almost, like, you know, collide to another accident.” He estimated her speed on the 401 at 60 km/hr and he observed that the “bumper was rubbing under and the car is pretty much damaged, like totalled.” He continued to follow the Defendant’s jeep, even after she pulled over and told him “stop following me.” He eventually saw an OPP officer stop her after she exited highway 403 at Hurontario.

49Mr. Hannora testified that the damage included the bumper, “hanging down,” the leaking of fluid, the headlight was hanging, the hood was bent and the roads were clear and dry.

50In cross-examination, when asked about why he stopped, Mr. Hannora testified “it’s my – my duty to stop and make sure everything’s ok, and if the car needs to help or tow or anything than I – I apply my services.” He agreed his services were not for free and he would charge for them.

51When asked whether the Defendant told him she was okay he said, “Right away she said, “I’m not drunk.” She did not even tell me “I’m okay” or anything. I was surprised.”

52When he repeated this he said, “I was – I was surprised. I was – ask her, “Are you ok?”, and I remember she said, “I’m okay. I’m not drunk.”

53Mr. Hannora repeated what he had said about the damage to the jeep when asked in cross-examination: the bumper was “almost completely off. It was dragging on, like, on the – on – on the ground.” The headlights, I remember, was as well. The hood was bent.”

54Given the position of the jeep when he arrived, he had assumed that it had hit the concrete median, but he fairly conceded that he had no idea what had caused the damage to the Defendant’s vehicle. The witness advised that he called the OPP once he saw her “taking off in that condition.”

55Lastly, Mr. Hannora testified that the Defendant’s vehicle swerved, “like a couple of times, but I don’t know how many. But I realize could be the bumper, could be – I don’t know. Like, she wasn’t going fast. I seen something is dragging under the car, but she was swerving a couple times. I don’t know how many times, like, no count.” When asked whether the condition of the car could have caused it to do that, he answered, “I don’t know.”

56After the prosecutor indicated that there would be no re-examination of the witness, I sought to ask Mr. Hannora if he could comment on the female’s condition when he dealt with her. Both parties consented to the question being asked. In response, Mr. Hannora answered, “Okay. Basically, when I approached her the first time and I asked her, “Are you okay?”, she had replied to me, “I’m not drunk.” So that’s the time I started questioning myself afterwards, why would she answer, “I’m not drunk,” so she could be impaired. But I don’t know, I did not go and test or anything, so I don’t know.”

57I accept as truthful and accurate Mr. Hannora’s description of the driving he saw that morning. The Defendant’s vehicle was badly damaged, it drove well below the posted speed limit for the highway and it swerved more than once from the right lane to the second lane. This evidence was consistent, credible, and unchallenged by other evidence. The evidence was not undermined or variable under cross-examination. Though it was suggested that the vehicle was swerving because the bumper was hanging down and dragging under the vehicle, Mr. Hannora did not accept or reject the suggestion. He said he did not know.

58There was no evidence to support the theory that the bumper which hung and dragged under the car caused the vehicle to swerve in its lane. However, if I accept this theory, it would be open to also find that the only reason someone would continue to drive a vehicle in this state of inoperability on a 400 series highway would be a significant impairment in their judgment and ability to safely operate the vehicle. In the absence of any evidence to support this theory, I reject it as speculative at best.

59It was suggested in submissions that Mr. Hannora had a motive to embellish his evidence and paint the Defendant in a negative light. He sought to tow the Defendant’s damaged jeep and the Defendant refused his offer. Eventually, by following the jeep and calling the police, the Defendant was arrested and he profited by towing her vehicle.

60I reject this theory as the sole reason motivating Mr. Hannora’s actions and testimony. While it is true that Mr. Hannora stood to gain financially from towing the Defendant’s vehicle, I believe him when he testified that his main concern was the health of the driver.

61The motives of the witness appear evident throughout his testimony. There were many examples of his genuine concern that morning:

-It had a red light, but he came and he stopped her right away. At that point – that’s it. Like, thank God nothing happened. She did not collide with another car or she did not flip or go anywhere else at that time;

-It was dark at the time; I couldn’t, like, see. But I was concerned about the – the health of the person that’s inside the car more than the – the car itself;

-Like, I was curious about the person inside the car. And I asked her if I can help her and tow the car off the road, like, trying to help, not like…

In cross-examination, this theme continued:

-As I told you, I was not concerned a lot about the car more…than the person, like…inside the car, and if there was any kids involved or anything like that, that I have to call let’s say the ambulance.

62As Mr. Hannora was leaving the witness stand, unprompted, he said:

I just have to say one thing. I just hope that on that day she ask me to tow the car and she could have been – avoid the whole situation. And it was – nothing is gonna be involved. I was hoping that – I asked her – and I asked her again if she can call her husband or somebody that I can talk to.

63I agree that the possibility existed that Mr. Hannora only called the police because he could earn some money if the police required the Defendant’s vehicle to be towed, but Mr. Hannora would have no way of knowing that would happen. Moreover, the poor driving he saw, was similar to the brief driving observed by Constable Carullo. Both witnesses testified that the vehicle was not well controlled within a single lane.

64Coupled with the vehicle’s state and the Defendant’s decision to drive the vehicle anyway, the concerns expressed by Mr. Hannora were reasonable and credible.

65I find that Mr. Hannora was truthful and balanced while testifying and I accept that he had genuine concerns for the Defendant’s well-being that morning. His actions and his testimony support this finding. I reject the suggestion that Mr. Hannora acted for any selfish reasons when he called the police.

66I have also considered and rejected the idea that Mr. Hannora embellished, exaggerated, or altered his testimony in any way to conceal his motives or paint the Defendant in an unsympathetic light. To the contrary, his evidence was measured, consistent, uncontradicted by other evidence and neutral. He said when he did not know something. He did not guess or take his evidence beyond the limits of what he knew. I find that Mr. Hannora was completely truthful and accurate in testifying in this case.

67I have considered whether any other explanation could account for all of the evidence in this case. Was the Defendant suffering from a head injury resulting from whatever caused the damage to her vehicle and the airbag to deploy? There is no evidence that the Defendant had a head injury. She made no complaint of injury during the breath sampling procedure. On the video, the Defendant appears completely healthy, uninjured, talkative, and relaxed. Her balance is unaffected. Her fine motor skills are unaffected. According to the Qualified Technician her speech was unaffected. I reject the notion that a head injury existed or could account for all of the evidence, including the Defendant’s rejection of a tow, her response, “I’m okay. I’m not drunk,” and her decision to drive a badly damaged vehicle in her state.

68Given that this is a circumstantial case, in order for the prosecution to succeed, I must be satisfied that the only reasonable inference that arises on the evidence is that the Defendant’s ability to drive was impaired by alcohol to any degree from slight to great. If there is any other reasonable inference that can be drawn from the circumstantial evidence, the Defendant is entitled to an acquittal of the charge.

69The Defendant’s decision-making was extremely poor that night. She drank alcohol then she drove. She collided at some point causing a lot of damage to her vehicle. It is unknown whether the damage arose before of after the consumption of alcohol. Thereafter, the Defendant continued to drive despite an offer to tow her vehicle. She drove well below the speed limit for the highway, with a significantly damaged vehicle, although she had difficulty maintaining the vehicle in its lane. Perhaps the Defendant was simply trying to escape civil liability or investigation for any number of driving offences. Regardless, the hallmark indicators of alcohol intoxication were obvious: she smelled of alcohol, she could not properly control her vehicle, and she made one imprudent decision after another. One does not have to be staggering, vomiting, or losing consciousness to be impaired by alcohol in the ability to operate a motor vehicle. Prudent, unimpaired driving requires concentration, unimpeded reactions, an awareness of risks, an ability to control the vehicle, and good judgment.

70When I take into account all of the circumstances including the significant damage to the jeep, the Defendant’s poor driving (observed by two different witnesses), the Defendant’s statement to Mr. Hannora (“I’m not drunk”), her unwillingness to have her vehicle towed, her bloodshot eyes, the smell of alcohol, her admission of prior alcohol consumption, and her decision to continue to drive her jeep despite the significant damage and the risk of causing further damage, I am not left in any reasonable doubt that the Defendant’s ability to drive was impaired by alcohol. [14] No other reasonable explanation accounts for all of the evidence in this case.

CONCLUSION

71I find Regina Dos Santos guilty of impaired driving and not guilty of driving with an excess BAC.

72As the parties failed to address the remaining provincial offence, I leave it to the parties to suggest whether I should hear submissions on this charge on the return date.

Released: 16 April 2021 Justice G. Paul Renwick

1R. v. Starr, 2000 SCC 40 , [2000] S.C.J. No. 40 at para. 242.

2R. v. Villaroman, 2016 SCC 33 , [2016] S.C.J. No. 33 at paras. 17, 18, 22, 26, 27, 29, 30, 31, 32, 34, 35, 36, 41, 42, 55, and 56.

3R. v. Storrey, [1990] S.C.J. No. 12 at para. 17.

4Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., [1984] S.C.J. No. 36.

5R. v. Notaro, 2018 ONCA 409 at paras. 34-35.

6R. v. Golub, [1997] O.J. No. 3097, at para. 18.

7R. v. Michaud, [1986] O.J. No. 1631 (Dist.Ct.), at p. 6, as cited by Lacourciere J.A. in R. v. Vanstaceghem, [1987] O.J. No. 509 (C.A.) at p. 6.

8R. v. Barros-DaSilva, 2011 ONSC 4500 at para. 24.

9R. v. Nguyen, 2020 ONSC 7783 at para. 27, citing R. v. Bassi, 2015 ONCJ 340 , [2015] O.J. No. 3293 (C.J.) at para. 12.

10Barros-DaSilva, supra, at para. 30.

11Nguyen, supra, at para. 29.

12Nguyen, supra, at para. 45.

13R. v. Rover, 2018 ONCA 745 at para. 45.

14Although both officers at the Defendant’s arrest testified that she had slurred speech, I am not satisfied that what they heard was not simply her accent. Accordingly, I have not included this in the totality of circumstances taken into account.