ONTARIO COURT OF JUSTICE
Info: 25-16100668
BETWEEN:
HIS MAJESTY THE KING
— AND —
Karl Sinclair-Warwick
Before Justice J. Lesperance
Heard on June 9, 2026
Reasons for Judgment released on July 10, 2026
S. Torelli, ACA Counsel for the Crown
The Defendant, a Self-Represented Accused.................................... on his own behalf
LESPERANCE J.:
1Mr. Karl Sinclair-Warwick represented himself on this trial which was held on June 9, 2026.
2As a trial judge I had an obligation to endeavour to ensure that the Defendant had a fair trial.
3This obligation is the same regardless of whether a defendant assertively chooses to represent himself or he chooses this route because there was no alternative.
4As the trier of fact I strived to provide the law, and when possible, to provide simple or layperson explanations for key concepts – such as the presumption of innocence, burden of proof, manner or sequence of how the trial would proceed, and required the Crown to always provide their submissions first so that the accused could have a better understanding of the key areas the Crown needed to prove beyond a reasonable doubt as alleged on the information. I thank the Crown for agreeing to this modified procedure to help enhance fairness.
5As the trier of fact, I remained open-minded and vigilant to assess if a potential Charter issue arose, that the self-represented accused may not have identified. I do note - there was no Charter argument filled, and no Charter breach or violation alleged by the accused.
6It is vital, as this is a self-represented accused trial to re-state some of the most fundamental foundations in our law:
7In a criminal trial, an accused person is presumed to be innocent, unless and until the Crown establishes their guilt beyond a reasonable doubt. The Crown must prove each essential element of an offence charged beyond a reasonable doubt. The burden of establishing beyond a reasonable doubt that an accused committed the offence charged "rests with the prosecution throughout the trial and never shifts to the accused": R. v. Lifchus, , [1997] 3 S.C.R. 320, at para. 27.
8A reasonable doubt may be based on the evidence, or absence of evidence. Proof of probable or likely guilt does not satisfy the standard of proof beyond a reasonable doubt.
9In our trial, the Crown called 3 witnesses, and the accused did not testify. The accused did call their aunt as a witness – Ms. Alana Melo.
Background and Facts
10On or around April 5, 2025, Ms. Kelly Smith attended the arena known as “Paxton Bush” around 3:15 in the afternoon. She went to the area to enjoy a walk. Approximately 5 minutes into her walk, she first observed the accused – Mr. Karl Sinclair-Warwick. The two individuals were not previously known to each other.
11Mr. Sinclair-Warwick was walking a large German Shephard dog. Ms. Smith made multiple significant observations of the manner in which Mr. Sinclair-Warwick was having significant difficulties in trying to walk the dog. Ms. Smith noted the following in her initial observations of Sinclair-Warwick, I find all of the following observations proffered in evidence as accurate and accept all of them in this case:
(1) Smith walked within 4-5 feet of Mr. Sinclair-Warwick
(2) Sinclair-Warwick seemed unable to walk, he was swaying, stumbling, and I noticed him fall
(3) He looked intoxicated
(4) He was having difficulty walking
(5) He stumbled over to his vehicle
(6) The dog was kind of helping him progress forward, the dog was walking straight, but the accused was swaying side-to-side
12Ms. Kelly Smith then continued on her walk, she testified she was concerned. She observed Mr. Sinclair-Warwick, the accused, a second time, these were the key observations and facts I find in relation to Ms. Smith’s second set of observations of Sinclair-Warwick:
(1) Mr. Sinclair-Warwick was next observed sitting in the driver’s seat of a car
(2) Ms. Smith was very concerned about this situation
(3) The vehicle was a car, similar in model to a Chevy Cruise, possibly “taupe” in colour
(4) She called 911 was she was concerned
(5) She explained her observations to 911 dispatch of a possible impaired driver, driving, providing the description of the driver, vehicle, and licence plate as – DDHZ 326
13It is worth outlining that Ms. Smith was credible and unshaken in cross-examination. Her evidence was detailed, logical, forthright, and told in a very balanced manner. Ms. Smith did not know the accused and explained how she made specific and detailed observations of Sinclair-Warwick because was concerned for his well-being. Ms. Smith was further concerned he was impaired, stumbling, and could barely walk. Ms. Smith’s concerns were significantly heightened when she saw in her second set of detailed observations that Mr. Sinclair-Warwick was found in the driver’ s seat, then driving in that state of what Smith believed was impairment, she did what any reasonable citizen would do – called 911 so that the situation can be investigated to keep everyone, including the driver, safe. Her evidence can be viewed through the lens of a concerned citizen who was making focused and detailed observations.
14With all of that information provided to emergency services about a possible impaired driver, driving their vehicle in the Chatham-Kent community, Chatham Kent Police Service commenced an investigation into locating the vehicle and this driver.
15Officer Micheal Weedon was called as a witness, Officer Weedon was the initial officer, working on duty who commenced the investigation from information he received from dispatch.
(1) Officer Weedon, when provided the vehicle licence plate – DDHZ 326, ran the plate, and received information the registered owner resided at 15 Cornhill, Chatham, On
(2) Officer Weedon commenced travelling toward the 15 Cornhill location to try to locate the vehicle and the driver
(3) Other police vehicles and officers were dispatched to this area
(4) Officer Weedon drove to Cornhill Street and backed his police cruiser into a driveway across the street to have a clear and unobstructed view of 15 Cornhill to attempt to observe and locate the vehicle and its driver.
Reasonable and Probable Grounds
16While no Charter argument was filed, to ensure fairness, a full review of the process and manner in which Officer Michael Weedon formed his reasonable and probable grounds to arrest the accused will be analysed.
17Officer Weedon observed the vehicle just after 4pm on April 5, 2025. Officer Weedon saw the vehicle drive on the roadway – Cornhill, and reverse park into the driveway. Officer Weedon had a direct view to observe the following:
(1) The accused was the lone male occupant and driver of the vehicle
(2) Weedon had concern for the way the accused reverse parked the vehicle, specifically how the driver – cut over the grass, when trying to get into the driveway
(3) Officer Weedon walked over to the driver to continue his investigation
(4) The dog was observed in the vehicle, as well as beer cans in the vehicle
(5) Officer Weedon identified himself, and began to make conversation with the accused
(6) The accused became argumentative
18During the interaction between Officer Weedon and Sinclair-Warwick, Officer Weedon noted that Sinclair-Warwick was mumbling and slurring his words, Sinclair-Warwick had red glossy eyes, and there was a smell of alcohol coming from the car. As part of the ongoing investigation Officer Weedon directed Mr. Sinclair-Warwick to step out of the vehicle to further determine if the smell of alcohol was coming from the car, or from the accused’s breath or mouth area.
19Further observations were made by Officer Weedon when Mr. Sinclair-Warwick exited his vehicle’s driver seat. Sinclair-Warwick was unsteady on his feet on the flat ground, he would not provide his name, and continued Sinclair-Warwick’s argumentative exchange or spoken words, Officer Weedon testify he was able to determine that the smell of alcohol was specifically coming from Sinclair-Warwick’s mouth area when he spoke.
20Upon the totality of all of Officer Weedon’s personal observations of Sinclair-Warwick, coupled with the information provided to him from dispatch, Officer Weedon arrested Mr. Karl Sinclair-Warwick at or around 4:09pm.
21Citing from the Ontario Court of Appeal in Bush, 2010 ONCA 554, what was previously s. 254, now reflected within the s. 320 regime in the Criminal Code:
Analysis
36Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an approved screening device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit.
37Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80'" (emphasis added). Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: see Censoni, at para. 31; and R. v. Shepherd, [2009] 2 S.C.R. 527, [2009] S.C.J. No. 35, 2009 SCC 35, at para. 23.
38Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, , [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87, at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, , [2001] O.J. No. 377, 9 M.V.R. (4th) 67 (C.A.), at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, , [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at p. 250 S.C.R.
44Doherty J.A. continues in Golub, at para. 21:
In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartier v. The Attorney General of Quebec (1979), , 48 C.C.C. (2d) 34 at 56 (S.C.C.); R. v. Hall (1995), , 39 C.R. (4th) 66 at 73-75 (Ont. C.A.); R. v. Proulx (1993), , 81 C.C.C. (3d) 48 at 51 (Que. C.A.).
45On a subsequent occasion, Doherty J.A. found police in a drinking and driving investigation were involved in making quick but informed decisions whether there were reasonable and probable grounds: see R. v. Smith (1996), , 28 O.R. (3d) 75, [1996] O.J. No. 372 (C.A.).
47There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), , 12 O.R. (3d) 90, [1993] O.J. No. 18 (C.A.), affd (1994), , 18 O.R. (3d) 800, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51. 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, [page655] reaction or response time, judgment and regard for the rules of the road: Censoni, at para. 47.
48The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato, supra; Moreno-Baches and Wang, at para. 17. Where appellate courts are called upon to review the trial judge's conclusions as to whether the officer objectively had reasonable and probable grounds, the appellate court must show deference to the trial judge's findings of fact although the trial judge's ruling is a question of law reviewable on the standard of correctness: Wang, at para. 18.
55In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": Censoni, at para. 43; also Jacques, at para. 23. However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable: R. v. McClelland, 1995 ABCA 199, [1995] A.J. No. 539, 165 A.R. 332 (C.A.). [page657]
22An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed: Censoni, at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello, [2002] O.J. No. 93, 22 M.V.R. (4th) 165 (C.A.), at para. 2; Wang, at para. 21.
23The uncorroborated testimony of a witness can provide a basis to find reasonable and probable grounds for arrest. Corroboration by an ASD is not required and, in some instances, could even unnecessarily delay the breath demand if the officer already had reasonable grounds: R. v. Bernshaw, , [1995] 1 S.C.R. 254 at paras. 37-38 4; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 60; R. v. Censoni, [2001] O.T.C. 948 (Ont. S.C.), at para. 50; R. v. Bates, [2005] O.T.C. 916 (Ont. S.C.) at paras. 7-15; R. v. Rodriguez (2001), 18 M.V.R. (4th) 207 (Ont. S.C.) at paras. 9 and 20-21; R. v. Gunn, 2012 SKCA 80, 2012 SKCA 80, at para. 21; and R. v. Schofield, 2015 NSCA 5, 354 N.S.R. (2d) 187, at para. 35.
R v Chandrasegaran, [2022] OJ No 1326 at para 31
24It is clear that when looking at all the circumstances of this case, in their totality, that the information provided by Ms. Kelly Smith to dispatch, later relayed and provided to Officer Weedon provided significant information, and permissible hearsay, that Officer Weedon utilized and relied upon to form his reasonable and probable grounds. This process was entirely reasonable on the facts provided in evidence. Officer Weedon is a trained police officer, and he is entitled to draw inferences and make decisions based on drawing upon his experience in investigating impaired driving cases. The observations, all previously outlined at length when reviewing Officer Weedon’s evidence, coupled with hearsay observations provided by Ms. Smith (told to dispatch who shared with Officer Weedon), demonstrates that this officer had subjectively and objectively formed the reasonable and probable grounds to arrest Mr. Sinclair-Warwick for the offence of impaired driving.
25An officer is required to assess the situation and competently conduct the investigation he or she feels appropriate to determine if reasonable and probable grounds exist. In some cases, that might include interviewing witnesses and/or the suspect if necessary: Golub, at para. 19. In others, the officer's observations and information known at the time may readily establish the requisite grounds. Our case is the latter, and the information provided from dispatch to officer Weedon, coupled with his many observations of impaired pertaining to the accused demonstrate the officer’s subjectively and objectively formed grounds.
Arrest, Rights to Counsel, and Transport to Detachment
26While no Charter argument was made alleging violations of s. 10(a) or 10(b), an analysis will be outlined to confirm whether the actions taken by Chatham Kent Police Service were Charter-complainant in the arrest of Mr. Sinclair-Warwick.
27Officer Weedon testified that he arrested Sinclair-Warick at 4:09pm. The next step was to assist Mr. Sinclair-Warrick walking toward the police cruiser, where at 4:12pm the Rights to Counsel information was read directly from the officer’s police issued duty notebook to the accused. Mr. Sinclair-Warrick confirmed he understood, and advised the officer that he “had no lawyer but wants to call one”.
28At 4:13pm Officer Weedon read the police caution directly from his duty notebook, Sinclair-Warwick responded “I never drove impaired and disagree with the charge”.
29At 4:13pm Officer Weedon next read the breath demand directly from his duty notebook to Sinclair-Warwick. The exact details of what was read to the accused were read in court, namely that the accused was required to provide samples of his breath into an approved instrument to analyze the presence or level of alcohol in his blood. Sinclair-Warwick responded to the breath demand with a response that the officer “had no right to pull him (Sinclair-Warwick) over”.
30Officer Weedon took steps to ensure the dog in Sinclair-Warwick’s car was taken care of, then Sinclair-Warwick was transported to the Chatham Kent Police Service Headquarters. Officer Weedon estimated this is only a 1.5 miles distance, and they arrived at headquarters at approximately 4:19pm.
31To ensure Sinclair-Warwick understood his rights to counsel, Officer Weedon re-read them to the accused at 4:21pm, re-read the caution at 4:22, and re-read breath demand at 4:23pm. Importantly, in response to the breath demand at this point Sinclair-Warwick replied “I refuse to answer questions, and I refuse to blow.”
32Officer Weedon took steps to connect Sinclair-Warwick to counsel. Sinclair-Warwick selected Ms. Patricia Brown from the provided list of lawyers. Sinclair-Warwick spoke to Ms. Brown in the booking area, in a private, soundproof room, ensuring a confidential telephone call with his counsel of choice from 4:33pm to 4:44pm.
33It is clear from the facts in this case that both the informational and implementational components of s. 10(a) and s. 10(b) of the Charter were complied with, and that the accused had received legal advice from his counsel of choice in a reasonable and diligent manner.
34Officer Weedon met with the breath technician, Officer Butler at approximately 4:34pm while Sinclair-Warwick was having his private telephone call with counsel. Officer Weedon explained the investigation and provided his grounds to officer Butler, specifically highlighting the following Reasonable and Probable grounds for arresting Sinclair-Warwick with impaired operation of a conveyance:
(1) A concerned citizen called 911 dispatch advising Sinclair-Warwick was falling while walking, had his head on his steering wheel in his car in the park parking lot
(2) Observations additionally made by Weedon personally provided to Officer Butler included - beer cans were observed in Sinclair-Warwick’s vehicle, when speaking with Sinclair-Warwick alcohol was coming from his breath, when Sinclair-Warwick exited his vehicle he was unsteady on his feet, and was combative in conversation
(3) Officer Butler explained with the information provided to her and her independent observations of Sinclair-Warwick she also formed her own objective and subjective reasonable and probable grounds that the accused was impaired by alcohol.
35The Cross-examination of Officer Weedon focused on a few areas, but overall, it is important to note the assessment of Officer Weedon’s credibility and reliability. Officer Weedon answered in a clear, balanced and detailed manner. He was challenged on peripheral issues, but his evidence on all essential points was clear and fair. Officer Weedon made concessions or corrections in his evidence when it was reasonable to do so - such as the brand or logo observed on the beer cars in Weedon’s vehicle when it was clear he saw the beer cars but acknowledged he may have been incorrect in his memory for what type or brand the beer was. Officer Weedon was clear in his investigative steps he was doing his best to rule out all scenarios for Sinclair-Warwick’s driving, including “I have been doing this for 20 years, I can tell the difference between a mental health or health issue, and when alcohol is the cause, in this case, it seemed like alcohol was the cause for you.. you (Sinclair-Warwick) were impaired by alcohol.”
36Officer Weedon took notes, and from time to time refreshed his memory for specifics such as dates or times, or the words read to the accused, but overall was very accurate and had a detailed and step-by-step recollection for this investigation leading up to the arrest of the accused, and the reasonable and probable grounds that formed why the accused was arrested. Officer Weedon’s evidence is accepted beyond a reasonable doubt.
Evidence of Ms. Alana Melo
37I do pause to make one observation in the assessment and credibility of Officer Weedon. In the evidence called by Mr. Sinclair-Warwick with the testimony of his Aunt – Ms. Alana Melo. Ms. Melo was the owner of 15 Cornhill and was called as a witness in this case. She had limited recollection of April 5, 2025, and described being gone for 1 to 1.5 hours in the events leading up to seeing two police cruisers pull up to the residence a few moments before she got home.
38Ms. Melo describes how she observed Sinclair-Warwick pull into the driveway, exit his vehicle, and hand over the keys to her before Sinclair-Warwick began interacting with the police.
39On many points Ms. Melo’s evidence was less helpful – she was gone for the 1 to 1.5 hours leading up to this event yet attempted to opine that she did not observe any alcohol or smell of alcohol on Sinclair-Warwick, when even on her own evidence she was not home to observe whether he was drinking. She further attempted to make up or add in possible excuses for the beer cans located in the vehicle and presented to her in cross-examination from the Exhibit photo showing the beer cars in the car. It was concerning that she tried to provide or opine possible explanations for aspects she did not personally witness or have any knowledge of.
40Ms. Melo tried to further explain the manner of driving of Sinclair-Warwick. She was on the porch, not focused on what was going on. This could be explained by being unfocused on the vehicle, or having her focus directed at something else at the time. The perspective and vantage points are important. Officer Weedon was specifically focused on the vehicle, the manner of driving, and an ongoing investigation. Ms. Melo is being asked to recount a day she did not focus on, did not make notes for, and tried to say that from a distance she “saw his eyes and they looked fine.” Ms. Melo’s evidence is not credible and is not reliable. I did not believe her. Whether she was simply trying to fill in the gaps for what she thought had happened that day, or was trying to provide details that she believes may be more favourable or advantageous to Sinclair-Warwick, when assessing the inconsistencies and frailties in her evidence, I am not left with any doubt from her evidence.
41This is not simply a case of preferring or accepting one version of evidence over the other. The observations of Officer Weedon were facts, nothing in Ms. Melo’s attempts or evidence raised any reasonable doubt in my assessment of what had occurred on this day.
The Evidence of PC Jessica Butler, QBT and the Breathroom Video
42Police Constable Jessica Butler (Qualified Breath Technician) was called in this trial. Here certification was filed as an exhibit, she is certified in the Intoxilyzer 8000C and has conducted hundreds of tests and investigations into impaired driving.
43Officer Butler had received grounds from arresting officer Cst. Weedon, these were all recorded and noted in the Alcohol Influence Report, particularizing the grounds for arrest as follows:
(1) Complainant was walking his dog
(2) Falling
(3) Got in motor vehicle
(4) Head on steering wheel
(5) Located pulling his vehicle into driveway
(6) Lone occupant plus dog
(7) Slurring speech
(8) 1/2 dozen beer cans empty - Busch lite
(9) Uncooperative
(10) Unsteady
(11) Smelled of alcohol from breath
(12) Eyes red
(13) Glossy
(14) Arrested for impaired
44Officer Butler took custody of Mr Sinclair-Warwick after he spoke to counsel, before entering the breath room at approximately 446pm. Officer Butler prepared the Intoxilyzer 8000C to ensure it was operable, ready, and able to obtain a suitable breath sample from Mr. Sinclair-Warwick. The self-breath test and printout were reviewed in this trial to confirm the instrument was in good working order
45Officer Butler explained how she explained the breath demand made to the accused and he was required to provide a suitable sample of his breath into the approved instrument
46All of the interaction between Officer Butler and Mr. Sinclair-Warwick was captured on audio video, and was filed as an exhibit in this trial.
47The Accused was completely clear. He was unequivocal. He refused to provide a sample of his breath, in fact he refused the lawful demand multiple times. A summary of the conversation between PC Butler and Sinclair-Warwick (SW) in the breath room video capturing his clear refusal include (the video was filed as an exhibit in the trial):
SW: I am not taking it
PC Butler: Do you understand the consequence, you get charged with impaired and refusal?
SW: yes
PC Butler: you will be charged with refuse to comply with demand..?
SW: I am not doing that
PC Butler: I see you are upset, I am making a lawful demand
SW: I already said I am not doing that
PC Butler: Just hear me out, you get another charge
SW: I don’t think I need to do any of this, I am refusing to do any of that
48Slightly latter on in the dialogue captured on the breath room video between Officer Butler and Mr. Sinclair-Warwick, Officer Butler explained the consequences of failing to give the sample as a new additional charged and tried to give Mr. Sinclair-Warwick, one “last chance” which he refused:
PC Butler: Last chance… you are not giving me a sample of breath…?
SW: I don't need to give you that, I am allowed to leave here without taking that.. I will fight it in court…
PC Butler:- there is risk of increased penalty, another charge, Do you want to give sample?
SW: No. I do not
Summary of the Law, Analysis and Conclusions – Refusal
49Elements of Failure or Refusal to Comply
50The starting point is the Demand section:
Section 320.28(2)(a) - If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person's ability to operate it was impaired to any degree by a drug or a by a combination of alcohol and a drug, or has committed an offence under paragraph 320.14(1)(c) or (d) or subsection 320.14(4), the peace officer may by demand, made as soon as practicable require the person to comply with the requirements of either or both of paragraphs (a) and (b):
51The Failure or Refusal to Comply with a Demand section is:
320.15(1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under 320.27 or 320.28.
52The essential elements that must be met, in proving the offence of Refusing to Provide a Breath Sample, are:
A valid demand;
A refusal to comply with a demand;
The intention to refuse that demand. See: R. v. Lewko, [2007] S.J. No. 257 (Prov. Ct.); R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205.
53There is no set formula to what constitutes an intentional refusal. It can be established through words, or actions, or a combination of both. The evidence must be considered as a whole. See: R. v. Gomes, [2018] O.J. No. 5900 (C.J.).
R v Zivkovic, [2023] OJ No 5515, 2023 ONCJ 538, [2023] OJ No 5515
54Once an unequivocal refusal is made, the offence is complete, even if the accused subsequently changes their mind and offers to provide a sample. However, where there is a subsequent offer to provide a sample, this can provide insight into whether or not the refusal acted upon by the officers was in fact unequivocal. See: R. v. Mtonga, 2021 ONSC 1482, [2021] O.J. No. 999 (S.C.J.), R. v. Khandakar, [2023] O.J. No. 1392 (S.C.J), and R. v. Domik, [1979] O.J. No. 1050 (Ont. H.C.J.).
R v Zivkovic, [2023] OJ No 5515, 2023 ONCJ 538, [2023] OJ No 5515
55It was clear throughout the evidence that a valid demand for a sample of Sinclair-Warwick’s breath was made by Officer Weedon, and again by Officer Butler. There were numerous attempts, patience, and various explanations done by Officer Butler to attempt to have Sinclair-Warwick comply with this valid demand. Sinclair-Warwick refused numerous times, unequivocally. He was clear he intended to refuse. There was no challenge in the cross-examination of Officer Butler, the breath room video perfectly captured the numerous refusals made by Sinclair-Warwick
56The accused will be found guilty of the offence of refusing to provide a suitable sample of his breath in response to a valid breath demand, as enumerated on Count 2 of the Information.
Analysis of Impaired Driving Count
57With a view to whether Mr. Sinclair-Warwick did operate his motor vehicle, a conveyance, while his ability to do so was impaired by alcohol?
58It is an offence to operate a conveyance while your ability to operate it is impaired to any degree by alcohol or by drug or by a combination of both. Section 320.11 of the Criminal Code defines "operate" for the purposes of Part VIII.I:
(a)In respect of a motor vehicle, to drive it or to have care or control of it.
Impaired operation under section 320.14 requires proof that the ability of the accused person to operate a motor vehicle was impaired by alcohol or drug at the time of driving. The Crown is not required to prove any specific level of impairment; evidence that establishes any level of impairment in the ability to drive caused by alcohol or drug is sufficient proof of the offence. As noted in R. v. Stellato, 1993 ONCA 3375, aff'd , [1994] S.C.J. No. 51 at paragraph :
59Citing R. v .Velasco, 2019 ONCJ 84, the review of Justice North:
116 The Criminal Code does not contain a definition for impairment. Whether or not a person was impaired while operating a motor vehicle is "essentially a question of fact" which a trial judge must determine based on the evidence: R. v. Michitsch, (ONSC) at para. 15.
117 The impairment of a driver's ability to operate a vehicle is, "generally understood as meaning the alteration of one's judgment and the decrease in one's physical abilities.": Kenkel, Impaired Driving in Canada, 2012/2013 Edition (Markham, Ontario; LexisNexis Canada), at p. 76.
118 Appellate courts have accepted the standard as "any degree of impairment" to operate a motor vehicle: R. v. Stellato (1993), , 12 O.R. (3d) 90 (Ont. C.A.) aff. , [1994] 2 S.C.R. 478. Before a trial judge can make a finding of guilt he or she must be satisfied beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired to some degree by alcohol or a drug. If there is evidence to establish beyond a reasonable doubt that an accused person's ability to drive was "even slightly impaired by alcohol" a court must find the accused guilty: R. v. Moreno-Baches, 2007 ONCA 258, at para. 2.
119 In Stellato, the Court of Appeal concluded at para. 14, that, "if the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt, the accused must be acquitted. If the evidence establishes any degree of impairment ranging from slight to great, the offence has been made out.": See also R. v. Siemens, 2018 ONSC 537.
120 In R. v. Andrews, 1996 ABCA 23, at para. 23, the Court concluded:
"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."
121 Proof of impairment can take many forms. Evidence of impairment can come, "from observations of driving, but also may include physical symptomology, physical test results, or other observations.": Kenkel, Impaired Driving in Canada, 2012/2013 Edition (Markham, Ontario; LexisNexis Canada), at p. 76.
122 Courts have considered a number of factors in determining whether an accused person's ability to drive was impaired as a result of alcohol or drugs. Some of these factors include lay opinions of witnesses, bad driving evidence, accidents, speech, appearance of eyes and face, gross and fine motor skills, mental ability and emotional state, odour of alcohol, alternative explanations for indicia of impairment, adverse inferences from a failure or refusal to provide sample and admissions of alcohol consumption by the accused: Jokinen, K. and Keen, P., Impaired Driving and Other Criminal Code Driving Offences: A Practitioner's Handbook, (Toronto, Ontario; Emond Montgomery Publications, 2019), at p. 54.
123 No single piece of evidence or test is conclusive. A court must consider the totality of the evidence and determine, "whether the totality of the accused's conduct and condition can lead to a conclusion other than his or her ability to drive is impaired to some degree. Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not be met. Common sense dictates that the greater the departure from the norm, the greater the indication that the person's ability to drive it impaired.": Andrews, at para. 28.
60As outlined in my reasons on the Reasonable and Probable Grounds assessment where I outlined in greater detail the specific observations made by Officer Weedon and Ms. Kelly Smith I accepted the following beyond a reasonable doubt:
61Mr. Sinclair-Warwick was walking a large German Shephard dog. Ms. Smith made multiple significant observations of the manner in which Mr. Sinclair-Warwick was having significant difficulties in trying to walk the dog. Ms. Smith noted the following in her initial observations of Sinclair-Warwick, I find that all of these observations were accurate and accept all of them as facts in this case:
Smith walked within 4-5 feet of Mr. Sinclair-Warwick
Sinclair-Warwick seemed unable to walk, he was swaying, stumbling, and I noticed him fall
He looked intoxicated
He was having difficulty walking
He stumbled over to his vehicle
The dog was kind of helping him progress forward, the dog was walking straight, but the accused was swaying side-to-side
62Approximately, under 15 minutes later when Ms. Smith observed Sinclair-Warwick a second time:
63Ms. Kelly Smith then continued along her walk, concerned. She observed Mr. Sinclair-Warwick, the accused, a second time, these were the key observations and facts I find in relation to Ms. Smith’s second set of observations of Sinclair-Warwick:
(1) Mr. Sinclair-Warwick was next observed sitting in the driver’s seat of a car
(2) Ms. Smith was very concerned
(3) The vehicle was a car, similar in model to a Chevy Cruise, possibly “taupe” in colour
(4) She called 911 was she was concerned
(5) She explained her observations to 911 dispatch of a possible impaired driver, driving, providing the description of the driver, vehicle, and licence plate as – DDHZ 326
64Officer Weedon observed the vehicle just after 4pm on April 5, 2025. Officer Weedon saw the vehicle drive on the roadway – Cornhill, and reverse park into the driveway. Officer Weedon had a direct view to observe the following:
(1) The accused was the lone male occupant and driver of the vehicle as it drove down Cornhill street and began to park
(2) Weedon was concerned for the way the accused reverse parked the vehicle, specifically how the driver – cut over the grass, when trying to get into the driveway
(3) Officer Weedon walked over to the driver to continue his investigation
(4) The dog was observed in the vehicle, as well as beer cans in the vehicle
(5) Officer Weedon identified himself, and began to make conversation with the accused
65During the interaction between Officer Weedon and Sinclair-Warwick, Officer Weedon noted that Sinclair-Warwick was mumbling and slurring his words, he had red glossy eyes, and there was a smell of alcohol coming from the car. As part of the ongoing investigation Officer Weedon directed Mr. Sinclair-Warwick to step out of the vehicle to further determine if the smell of alcohol was coming from the car, or from the accused’s breath or mouth area.
66Further observations were made by Officer Weedon when Mr. Sinclair-Warwick exited his vehicle driver’s seat. Sinclair-Warwick was unsteady on his feet on the flat ground, he would not provide his name, and Sinclair-Warwick’s argumentative exchange or spoken words, Officer Weedon testified he was able to determine that the smell of alcohol was specifically coming from Sinclair-Warwick’s mouth area when he spoke.
67I have accepted that Cst. Weedon detected an odour of alcohol on Mr. Sinclair-Warwick’s breath, which when considered in combination with the presence of open alcohol in his motor vehicle, the smell of beer emanating from within it, and the other noted observations at the scene and earlier at Paxton Bush lead me to find beyond a reasonable doubt that alcohol was the reason for the impaired driving that day.
68On the totality of the evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Sinclair-Warwick’s ability to operate a conveyance was impaired, to some degree, by the consumption of alcohol contrary to s.320.14(1)(a) and I find him guilty of that offence.
Released: reasons released on July 10, 2026
Signed: Justice J. Lesperance