Court File and Parties
Court File No.: Toronto
Ontario Court of Justice
Between:
Her Majesty the Queen
Ms. R. Edward, for the Crown
— And —
Viviane Pires
Ms. M. Peck, for the Accused
Heard: March 23, July 25, October 15, 2012
NAKATSURU J.:
Overview
[1] The accused, Ms. Viviane Pires, is charged that on January 15, 2011, she did operate a motor vehicle while her ability to do so was impaired by alcohol and with a blood alcohol level over the legal limit. She has pleaded not guilty and has brought an application under the Canadian Charter of Rights and Freedoms for the exclusion of evidence at her trial. On consent, the evidence on the application and at trial was heard together.
[2] I dismiss the Charter application and find Ms. Pires guilty for the following reasons.
Overview
[3] On January 15, 2011, between 5 to 5:30 a.m, Mr. Shandhirasegara, a clerk working at the Shell gas station at Dupont and Landsdowne in the city of Toronto heard a loud noise. He looked and saw a car crashed against a hydro pole. Shortly after, Ms. Pires walked into the gas station. She walked around the gas station. Mr. Shandhirasegara smelled alcohol. Ms. Pires asked for a Kleenex and she was given a paper towel. The clerk then observed blood on it. She asked him to make a phone call for her. She spoke to a male person on the phone. After that, 911 was called. The police and ambulance arrived. Mr. Shandhirasegara watched Ms. Pires leave the store.
[4] P.C. Marrelli and P.C. Barcanas arrived to investigate. Ms. Pires was in the driver's seat of the black VW Beetle that was crashed into the hydro pole. P.C. Marrelli spoke to the accused while P.C. Barcanas went into the gas station to speak to the clerk. P.C. Marrelli smelled an odor of alcohol on Ms. Pires' breath. His escort returned and conveyed the information he learned from the clerk. P.C. Marrelli arrested the accused. The ambulance had arrived and attended to Ms. Pires. She was then taken to the Toronto Western Hospital on a backboard and stretcher.
[5] At the hospital, a breathalyzer technician arrived. In the emergency room, Ms. Pires was asked to give two suitable samples of her breath. At 7:56 a.m. the first sample resulted in a reading of 175 mg of alcohol per 100 ml of blood. The second sample at 8:20 a.m., was 176 mg of alcohol per 100 ml of blood.
[6] A toxicologist was called by the Crown to testify what Ms. Pires' blood alcohol concentration would have been at the time of her driving.
[7] On the Charter application, Ms. Pires and her husband, Darios Campos, testified. Ms. Pires testified that she was not properly given her right to counsel. She testified that she speaks little English. However, she testified that at the hospital she told the police she wanted to call a friend of hers so that she could call her lawyer. The police denied her request. Mr. Campos testified and confirmed this aspect of her evidence.
The Issues and the Positions of the Parties
[8] The defence submits that Ms. Pires' rights under ss. 8 and 10(b) of the Charter were violated by the police. It is submitted that P.C. Marrelli did not have reasonable and probable grounds to arrest Ms. Pires and make the approved instrument demand. It is argued that the information available to the officer fell short of reasonable and probable grounds. There were innocent explanations for the accident and her behaviour. The actual indicia of impairment were too scant to support the arrest and demand.
[9] With respect to s. 10(b) of the Charter, it is argued that Ms. Pires was not given her right to counsel in an adequate manner. Her first language is not English but Portuguese and the police should have been aware of this. Specifically she was not advised of her right to duty counsel until she was being released from the station. Further when she tried to exercise her right by asking the police to call her friend to call a lawyer, this request was denied. It is submitted that the evidence of the readings should be excluded under s. 24(2) of the Charter.
[10] The Crown submits that the police did have the requisite grounds to arrest Ms. Pires and make the demand. Further, the Crown argues that there was no violation of s. 10(b). It is submitted that the testimony of the accused and her husband should not be believed.
[11] With respect to trial issues, the defence argues that the testimony of the store clerk and P.C. Barcanas regarding the surveillance video they viewed shortly after the accident occurred, should not be admitted into evidence. It is submitted that to admit this evidence would violate the best evidence rule and the rule against the admission of hearsay evidence. It is submitted that without this evidence, the Crown has not proven beyond a reasonable doubt that Ms. Pires had operated the motor vehicle that was involved in the accident.
[12] Finally, it is submitted that the Crown has failed to prove that Ms. Pires' ability to operate a motor vehicle was impaired by alcohol.
Analysis
Issue #1: Section 8 of the Charter
[13] Given that that the seizure of Ms. Pires' breath was warrantless, the onus is on the Crown to prove that it was reasonable and in compliance with s. 8. Ms. Pires was arrested by P.C. Marrelli for impaired driving. In order to establish reasonable grounds to arrest her and make a breathalyzer demand, there must be both a subjective and an objective basis for the reasonable grounds: see R. v. Storrey, [1990] 1 S.C.R. 241.
[14] P.C. Marrelli testified that as he stood by when ambulance arrived, his escort, P.C. Barcanas approached him and advised him that Ms. Pires had gone into the gas station. Based upon the information of the observations of the witness in the station that was conveyed to him, P.C. Marrelli approached Ms. Pires on the back board, and confirmed his suspicion that there was an odor of alcohol on her breath. At 5:40 a.m. he arrested her based on the information received from her partner, the accident and the damage to the vehicle, her red blood shot eyes, the sunroof of the car being open, her dazed look, and her ignoring of his questions. Based on information from Ms. Pires, he believed that she had been operating her motor vehicle just after 5 a.m. The officer testified that he had the subjective grounds for the arrest.
[15] P.C Barcanas also testified. When he arrived he spoke to the store clerk. He was told that a female had gotten out of the car and asked to make a phone call. The clerk said he smelled a strong odor of alcohol and felt she was drunk as she was walking like a drunk person, stumbling, unstable, and crying. P.C. Barcanas told P.C. Marrelli this.
[16] In assessing this evidence, I appreciate the defence argument that P.C. Marrelli had noted he had suspicion or mere suspicion that she had consumed alcohol. However, I find that he did not arrest her on suspicion. He suspected that she may have consumed alcohol based upon the information given to him but he then confirmed those suspicions when he smelled alcohol on her breath. P.C. Marrelli was aware that he needed reasonable and probable grounds for the arrest and the breath demand. The officer was experienced. He pointed to a number of grounds leading him to this belief. The officer was cross-examined on his grounds but he did not waiver from his subjective belief. I accept that evidence and find that the Crown has demonstrated the subjective grounds required.
[17] The Crown must also demonstrate that those grounds are objectively reasonable. I am aware that for each factor pointed to by the officer in establishing the reasonable grounds, there could be possible causes other than impairment by the consumption of alcohol. I also appreciate that other typical indicia are missing from this case. For instance, stumbling or the loss of balance. On the other hand, given the limited opportunity to observe the accused walk by P.C. Marrelli, there are explanations for their absence.
[18] It is the totality of the circumstances that must be considered. In this case, I accept the officer did smell alcohol on her breath. Smell alone does not establish impairment or the amount of alcohol consumed but it does point to the consumption of alcohol. There is then the accident. I recognize that it was snowing but the roads were passable. There was also a curve or bend in the road where the accident happened. However, I accept that the turn was negotiable if one proceeded in a prudent fashion. The statement by Ms. Pires to the officer was that she was driving slowly. The accident was a significant one given the damage done. While the accident could have happened without Ms. Pires' ability to drive being impaired by alcohol, it is still a strong reasonable ground that in these circumstances, the accident was a result of her ability to drive being impaired by alcohol. Along with this, there is the physical indicator of the red eyes. Of course, the fact the air bags being deployed could have caused or contributed to it. She was also crying. Nonetheless it is another factor. There was also as described by the officer, the dazed look and her non-response to questions. P.C. Marrelli described her as having a drunken stare. While the accused had been in an accident and was in pain, which could explain this, these are still factors to consider. He testified that she did not appear to be in shock and was able to answer some questions. Further, he believed that the accident had occurred sometime before his arrival and these observations were not made immediately in the aftermath of an accident. Finally, there was the information received from his partner and the fact that the sunroof was open in Ms. Pires' car. The former was not detailed in P.C. Marrelli's evidence. However, P.C. Barcanas testified what he told his partner about the information relayed to him by the store clerk. I accept P.C. Barcanas' testimony. He was not impeached on this. Thus this is information from a reliable source, the store clerk, which supports the laying of the charge and the making of the demand. Regarding the latter fact, the opening of the sun roof was strange when the weather was cold and it was snowing. It was unusual behaviour in the circumstances; behaviour that could point to a lapse in judgment caused by alcohol impairment.
[19] When viewed in its totality, there were ample reasonable and probable grounds to arrest Ms. Pires for impaired operation of a motor vehicle and to make a breath demand. In short, P.C. Marrelli came soon after a significant single motor vehicle accident having occurred without any immediate and obvious cause, was told that the driver was potentially drunk and given information supporting that, confirmed the smell of alcohol on the driver's breath, and he observed some indicia and behaviour supporting impairment by alcohol. While there may be other explanations for each individual indicia or piece of information received by him, when the whole of the circumstances are looked at, there was an objective basis for P.C. Marrelli's arrest and demand for a suitable breath sample.
[20] As a result, I find no violation of s. 8 of the Charter.
Issue #2: Section 10(b) of the Charter
[21] The resolution of the right to counsel issue depends upon my findings of credibility and reliability. The defence submits that Ms. Pires asked the police to call a friend so she could call a lawyer but was denied this request. In addition, she was not offered a Portuguese interpreter or a Portuguese officer who could have assisted her in obtaining legal advice. Finally, Ms. Pires testified that she was not told about the availability of duty counsel until after her arrest and this does not meet the informational requirement of s. 10(b).
[22] The Crown submits that I should accept the evidence of the police and reject the evidence of Ms. Pires and her husband, Mr. Campos. She argues that the police provided her rights to counsel. At no point did Ms. Pires ever request to speak to a lawyer or ask for an interpreter. She did not require one. The only thing she asked for was to call a friend and the officer attempted to assist her in that regard.
[23] After carefully considering the whole of the evidence on this issue, I do not accept the evidence of Ms. Pires and Mr. Campos and I accept the evidence of the officers for the following reasons.
[24] Ms. Pires testified that she only was explained about duty counsel after she was being given papers and was being released from custody. At best she testified that an officer may have said the word duty counsel before but it was not explained to her. She testified that she asked the police numerous times to call a friend so that she could call a lawyer. However, the police would not allow her to. She tried to speak to husband in Portuguese at the hospital so she could do this but the officer would not allow her to speak to her husband. She testified she spoke only basic English and she could not communicate well. No interpreter or assistance was ever offered to her on the evening in question.
[25] Her husband, Mr. Campos, testified he received a call that his wife had an accident. He arrived at the scene but was not allowed to speak to her. He followed her when she went by ambulance to the hospital. There he tried to talk to her but the police told him not to speak to her in Portuguese. Ms. Pires wanted him to call a friend so that she could get a lawyer. He could not get the number from his wife. He was not present when the breath samples were taken. He testified his wife asked the police to phone a friend so she could get a lawyer. Mr. Campos believed she asked P.C. Marrelli. He testified she asked 3 or 4 times. The police did not allow her to do this. Mr. Campos did not recall any rights to counsel being given when he was present. However, at the scene he was asked to step away and did not hear what was said.
[26] In my assessment of the evidence, I found Ms. Pires to be evasive and unresponsive in cross-examination. It diminished her credibility significantly. I also had concerns about her memory and her ability to recall and relate events accurately. After observing her testify even through the use of an interpreter and ensuring I carefully consider it in the context of the evidence as a whole, I can given it little or no weight when it comes to the right to counsel issue. Here is some of the reasoning that has led me to this conclusion.
[27] Ms. Pires testified that she and her husband had dinner. When they got home, they fought, were loud and they decided to leave and go somewhere like a coffee shop or his office so as not to disturb the neighbours. She testified that they left the house together and she saw it was snowing. She testified this was when everything happened to her. She hit her head. Next thing she knew she was at the gas station, with the car smoking. She testified that she did not remember leaving the house. She attributed her loss of memory to being unconscious after hitting her head. She described herself as just coming to. She then went to the gas station.
[28] Later in cross, she testified that the last thing she remembered was walking down the hallway of the apartment with her husband. This was inconsistent with her earlier account that she recalled leaving the house and that it was snowing. She did not recall leaving her husband and driving alone in her Volkswagon.
[29] I did not find her claim of the loss of memory credible. She was unresponsive to questioning, evasive, and inconsistent. If true, it would have given me concerns about the reliability of her account that night. However, Ms. Pires claimed it only affected her memory prior to the accident and not after. I find that this aspect of her testimony diminished her credibility.
[30] I also find Ms. Pires evidence to be inconsistent with that of her own witness, her husband. He testified that he had stepped out after arguing at home to have a smoke. When he returned to the house, Ms. Pires had gone without his knowledge. He denied ever planning to leave to go somewhere to discuss things so as not to trouble their neighbors. While I appreciate different people may have different recollections of the same event, this contrast is startling. It supports my concern about Ms. Pires' evidence about losing her memory. I find it to be implausible.
[31] I also find her purported lack of English not credible. She has worked in English in the service industry. Her husband testified that she took a course in English as well. He testified she understood what a lawyer was. I accept that while English may not be her first language, she was capable of communicating in English and understanding what was told to her that night. I find that she did.
[32] When cross-examined about what occurred at the scene, when asked if it was possible she was given her rights to counsel, she replied she only recalled hearing the word arrest in the hospital. She then testified that the officer did ask her if she had a lawyer but he did not clarify. She only recalled the police speaking to her at the hospital and not at the scene. She did recall the police at the scene but there was a lot of people there. She just remembered that it was at the hospital she was spoken to.
[33] I find that the police did speak to her at the scene. It is implausible they would not have. They had to make inquiries of her. They testified they arrested her and read her rights and the demand. Ms. Pires' insistence they did not was in my finding, simply sheltering behind a purported loss of memory. She does seem to have good memory of events at the scene when she chooses to. I find I cannot accept her evidence of what occurred at the scene.
[34] Her evidence evolved considerably under the pressure of cross. When cross-examined about her rights at the hospital, she testified that the officer just said what he did but did not explain things. Ms. Pires admitted she never told the police she did not understand. She said she just wanted to speak to someone in her own language. I find her lack of complaint incomprehensible if she did not understand given the circumstances she found herself in. She seemed in testimony more inclined to lay blame on the police officers for failing to help her more. In cross, she also made the damaging admission that she knew she had a right to speak to a lawyer and that the police told her. This was different from her earlier testimony. She was inconsistent on this. She even testified that the police asked her if she had a lawyer. It seems that she communicated considerable about counsel. She was asked a number of times if the officer asked her "do you want to call a lawyer now" and she admitted she was asked that. However, she said she wanted to call her friend. She eventually admitted that she responded that she did not want to call a lawyer in response to the police but she wanted to call her friend.
[35] Ms. Pires continued to insist that she told the police she wanted to call her friend in order to get a lawyer. She insisted she made herself clear to the police in that. In my view, I do not accept that evidence. I accept she did ask to call her friend but did not advise the police she wanted to call her friend in order to call a lawyer. This conclusion is inevitable given my view of her credibility and reliability.
[36] I appreciate that Mr. Campos who testified only on the s. 10(b) issue testified in support of his wife. However, the fact he has a bias to support her and the substance of his testimony leads me to conclude I can give his evidence no weight. It was not credible. First of all, I find it implausible that if he was present when his wife was trying to get the police to let her call a friend to get a lawyer, that he would not have said something to the police when they would not let her. Especially, if it was the case that she was having difficulty explaining herself due to her lack of English. Mr. Campos speaks much better English and would have come to her aid. He did not. There was no good explanation from him why he would not do this very natural act.
[37] The most damage done to Mr. Campos was his answers near the end of cross-examination and then in re-examination. In cross, he testified that his wife told him in Portuguese very quickly she wanted to call a friend to get a lawyer. In cross, he agreed with the Crown she never told the police officer in English that she wanted to call her friend to get a lawyer. It never crossed his mind that Ms. Pires needed an interpreter or help in understanding. He agreed that it also was because his wife seemed to have no problem speaking to the police. The final question put to him by the Crown, just to be sure, was the suggestion that the only time his wife asked to call her friend to call a lawyer was in Portuguese to him. Mr. Campos agreed. In re-examination, Mr. Campos suddenly testified that his wife did speak to the police in English that she wanted to call her friend to get a lawyer. Incredibly, in a span of mere minutes if not seconds, Mr. Campos' evidence changed diametrically on this key issue. In my opinion, no weight can be placed in Mr. Campos' evidence on this issue.
[38] On the other hand, I found P.C. Marrelli's testimony credible. He told it in a straightforward manner and his evidence was consistent with the circumstances as it existed at the time. He testified that initially when he placed Ms. Pires under arrest for impaired driving, he advised her of her right to counsel and the breath demand in lay terms since the major concern at the time was to get her in the ambulance and off to the hospital. He testified that although he did not note her response at the time, she seemed to understand. This was at around 5:40 a.m. Ms. Pires was taken to the emergency of the Toronto Western Hospital. A breath tech was called. At 6:25 a.m., P.C. Marrelli testified that he formally gave her right to counsel and a caution. Ms. Pires indicated she understood. When asked if she wanted to call a lawyer now, she replied, "no, I want to call my friend." The officer explained duty counsel and free legal advice. P.C. Marrelli testified that Ms. Pires never said why she wanted to call her friend. He did call her friend and left a message. The accused kept asking for her cell phone but she never gave a reason for why she wanted her cell phone. The officer did not allow it as she was under arrest. The officer testified that he would have placed a call for her but she never gave him a reason why she wanted the phone.
[39] His evidence held up under cross-examination. The officer testified that he had no problem understanding the accused. He sounded most credible when he denied that Ms. Pires told him she wanted to call a friend to call a lawyer. He stated he would have been willing to do that but she never gave him a reason. In my view, I found this evidence plausible. He was consistent. He also telephoned the friend and left a message. I accept his evidence on this point.
[40] Officer Greener is an experienced breathalyzer technician. She was also an impressive witness. She arrived at the hospital and administered the tests to Ms. Pires. Ms. Pires was still on a stretcher with a neck brace on. She testified that she did not recall any issue with Ms. Pires' English and noted that she conversed well in English. If she had difficulties, she would have asked for an interpreter. Officer Greener asked P.C. Marrelli if the accused had wanted to speak to counsel. She testified that she told the accused that if at any time she changed her mind she could speak to duty counsel. Ms. Pires never asked her to speak to counsel. She never indicated she did not understand what was being conveyed to her. In cross, she did not sway from her evidence that Ms. Pires understood English.
[41] I find as a fact that Ms. Pires never told the police she wanted to call her friend to call a lawyer. Indeed, given my view of Ms. Pires' credibility, I am not sure she wanted to call a lawyer. The only indication she gave verbally was that she wanted to call a friend. She could have well asked to call a lawyer. She admitted she knew she could. There was in my view no difficulty in her understanding of her rights to counsel and communicating her wishes. I accept the police evidence on this issue.
[42] Furthermore, based upon my findings of credibility and reliability, I find that she was properly advised about her right to call duty counsel before her tests; not after as she testified to.
[43] As a result, I find that there was no violation of s. 10(b). The Charter application will be dismissed. The breathalyzer results will be admissible into evidence.
Issue #3: Admissibility of the Testimony Regarding the Surveillance Video
[44] The Crown tendered the evidence of the store clerk and P.C. Barcanas about viewing surveillance video taken at the gas station which depicted Ms. Pires having the accident with the hydro pole.
[45] The defence objected to the admission of this evidence. While initially a number of issues were raised about the admissibility when the issue first arose at trial, in her final submissions, counsel for Ms. Pires only relied upon two arguments: the testimony was not admissible because of the best evidence rule and that it was hearsay. Although it was not argued by the defence, I have also considered the question of whether its probative value outweighed its prejudicial effect. I have done so given my role to ensure only admissible evidence be considered by me at this trial. Given the defence chose not to rely on this ground, I see no prejudice in considering this issue without further submissions.
[46] Mr. Shandhirasegara the store clerk testified that they have a camera system for surveillance. There are a number of cameras. Where the accident took place is caught on camera. There is a monitor in the store that allows the clerk to see it in the store. The cameras also record what is caught and this can be later reviewed. At the time of the accident, he was very busy. Later on, he reviewed the video when the store was slower. At first in his testimony, he did not recall what he saw on the video. After reviewing his statement to the police, he refreshed his memory. On the video, he saw a vehicle have the accident and he saw the lady coming out of the car. He saw her getting out of the car and coming to the store. She tried to open the door of the store but it was locked. She came out of the 2 door black car from the front driver side door. This was the same woman who came into the store. She had brown hair, grey pants, pink and black sweater. He identified this woman to be the accused in court. He never saw anyone else. He also showed the police the video.
[47] In cross-examination he was asked in detail what was shown on the camera screen. He testified that he could only see the side view of the car. He testified that they were zooming in as well. It was a split screen of some 4 images on a 15 inch monitor. He testified he only saw it once with his manager but did not recall much detail. The manager did the zooming. He said the image was not grainy. It was reasonable quality but when zoomed it was less clear. He did not watch the video with the police as he served customers. There is usually a time stamp on the tape but he did not recall. The car was about 5 car wash distances away.
[48] Mr. Shandhirasegara testified that the police asked for a copy of the video. The CD writer was not working that day so they could not make a copy. His boss was out of the country so they had to wait until he came back. The surveillance video is kept for some time. However, when new video surveillance came in, it would be deleted as the new surveillance was taped over old. He was not sure, but the process takes about 2 weeks or 15 days for the deletion. The police came for a copy, he believed the next day but he did not deal with it. In cross he testified that the writer was not working for some time. He did not know if other equipment could have made a copy.
[49] P.C. Barcanas was working with P.C. Marrelli. When they arrived on scene, he saw the black VW Beetle crashed into the utility pole. Ms. Pires was in the front driver's seat crying. P.C. Barcanas saw surveillance cameras at the station, so he went to the kiosk to see the video footage. There he spoke with Mr. Shandhirasegara who explained he did not see the accident but he had witnessed what happened in the aftermath. After telling his partner the information he received, P.C. Barcanas returned to the gas station store to view the video. The clerk was busy with customers but he waited. The clerk rewound the DVD. There were two cameras. On one camera P.C. Barcanas saw the black car crash into the pole in front of the car wash. It was a black and white video. The car tried to back out. A female then got out of the driver side and walked to the kiosk. She knocks on the door and the clerk opens it. She then comes inside and then goes back outside to the car, does something and comes back to the door. P.C. Barcanas described the female as white, 5 feet 5 inches, 135 lbs, wearing black and pink sweater and grey pants. The camera capturing what was happening inside the store was in color. P.C. Barcanas testified that it was the same woman on the outside as the woman seen inside. On video, there was continuity in what was captured as one moved from one camera footage to the other. He could not see how she walked but saw she was crying. When she came back she was on the phone.
[50] P.C. Barcanas testified that the car that had struck the pole that he saw outside was the same car that he saw on the video. The female that he saw on the video was the female that was on scene when he arrived. She was the same female who was at the hospital where he went later. He identified that female to be Ms. Pires in court.
[51] P.C. Barcanas asked the clerk for a copy of the video. He was told that the owner was not in the country and the clerk did not know how to burn the video for the police. The officer testified that he attended the next day to get the DVD but it was not possible. The clerk said he did not know how to and the owner was not in the country to get the password to burn it. After that, P.C. Barcanas did speak to the clerk again after a few days to get the DVD but the same problem existed.
[52] P.C. Barcanas was cross-examined about what he could see and where the cameras were at the station. He gave details of his observations. He testified that on the footage, he never lost sight of the Ms. Pires as she left the car and came to the store. He was cross examined that the monitor they viewed on it could be divided depending the setting. He did not recall specifically how many screens came up but there were multiple screens and continuity was not lost.
[53] When he spoke to the clerk he was told that his boss was in Afghanistan or Sri Lanka and the clerk did not have the password. When he asked the clerk to get it, he said he could not. He said his boss would be back in a week. P.C. Barcanas did not follow up.
[54] The defence submitted that this testimony was not admissible due to the best evidence rule and the hearsay rule. The defence expressly did not rely on any Charter grounds with respect the admissibility of this evidence. In addition, the defence did not argue that there was an insufficient basis for authentication of the video footage reviewed by the witnesses. Given this position of the defence and after considering the circumstances as a whole, I am satisfied that there is sufficient authentication for this evidence to be admitted.
[55] With respect to the best evidence rule, I am satisfied that the rule does not preclude admission of this evidence. Traditionally, the best evidence rule requires that to prove the contents of a document, the original should be tendered if available. In my view the best evidence rule does not preclude viva voce evidence of persons who observed the video in the case at bar. See R. v. Pham, 1999 BCCA 571, [1999] B.C.J. 2312 (B.C.CA.) at paras. 18 – 25; R. v. After Dark Enterprises Ltd., 1994 ABCA 360, 94 C.C.C. (3d) 574 (Alta. C.A.); Kajala v. Noble, (1982), 75 Cr. App. R. 149 (Q.B.D.).
[56] In addition, the best evidence rule has an exception. Secondary evidence is admissible where the original was later accidentally or in good faith lost or destroyed without the intention to prevent its use as evidence. See R. v. Swartz, 37 C.C.C. (2d) 409 (Ont. C.A.) affirmed, [1979] 2 S.C.R. 256. In the case at bar, I find that the surveillance video was accidentally destroyed by the recording system. The police attempted to get a copy on more than one occasion but the owner who could access the system was out of the country and not reachable. There is a discrepancy between Mr. Shandhirasegara and P.C. Barcanas on the reason why. I prefer the officer's recollection since his memory was better and he had notes available to him as to why the system could not burn them a copy. Regardless, there was no bad faith or negligence with the intention to prevent the use of the original as evidence. As a result, for both reasons, the best evidence rule does not preclude the admissibility of the testimony.
[57] The hearsay rule is not applicable in my view. The video footage was real evidence: see R. v. Nikolovski, 111 C.C.C. (3d) 403 (S.C.C.). If it had existed, it could have been played in court without there being any objection based upon hearsay. While the witnesses who testified about what they saw on the video did not themselves observe the car accident, this does not make their evidence inadmissible hearsay. If the video was properly admissible as real evidence of what occurred, P.C. Barcanas and Mr. Shandhirasegara's testimony does not become hearsay because the video is not available. Of course, their evidence is subject to my assessment of weight, but it does not make their evidence inadmissible on this basis. I should observe that any danger raised by the lack of the video footage is compensated by the opportunity to fully cross-examine the officer and clerk as to what they observed. The defence in this case ably conducted this cross-examination.
[58] While the defence disavowed any reliance on the Charter, I have considered whether the evidence should be allowed in the exercise of my common law jurisdiction to exclude evidence where prejudice outweighs probative value. The prejudice comes from the fact that the video footage no longer exists. However, the defence has had an opportunity to cross-examine the two witnesses who observed it. These witnesses made a statement and notes contemporaneously to the event. They were disclosed to the defence. Their evidence was detailed in terms of what they observed. The prejudice is much diminished given these circumstances. On the other hand, the probative value of this evidence is high. It depicts the accused getting into the accident and coming to the store shortly after. The content of the video is confirmed by the observations of Mr. Shandhirasegara and P.C. Barcanas. Mr. Shandhirasegara heard the loud noise of the crash. When he looked, he saw the VW Beetle crashed into the pole. The accused was knocking on the door. All of this is captured by the video but the context of that accident is confirmed in the evidence of the clerk. P.C. Barcanas also saw the car in the location the video depicted. There is really no possibility that the video depicted anything other than the car crash that both men saw shortly after the accident having occurred. Assessing the probative value vs. prejudice, in my view, the evidence is clearly admissible.
[59] When looking to the question of the weight to be afforded to this evidence, for similar reasons as just alluded to, I find that it should be given significant weight. Both men gave their testimony in a credible fashion. They were honest and detailed. Mr. Shandhirasegara had to have his memory refreshed but once refreshed, it was straightforward and reliable. It was confirmed by P.C. Barcanas. Cross-examination did not affect the weight to be given the evidence.
[60] As a result, I find that when looking at their evidence along with all the other evidence in the case, the Crown has proven beyond a reasonable doubt that the accused had operated the car at the time of the crash. This includes the circumstances thereafter. Ms. Pires came from the car to the station asking to use the phone and looking for help. She was crying, in pain, and bleeding. This is strong evidence that she was involved in the crash that based upon the noise heard, happened shortly before. There was no one else around the vehicle. The officers also came and found Ms. Pires in the driver's seat with no one else around. The video supports all of this. The fact that her husband came later and was on scene does not raise any reasonable doubt that it was someone other than the accused who had been driving the car. The conclusion is compelling.
[61] Given this conclusion, I find that the Crown has proven beyond a reasonable doubt that the accused is guilty of the offence that she operated a motor vehicle with a blood alcohol level beyond the legal limit. This is based upon the readings obtained by the breathlyzer technician at the hospital and the evidence of the toxicologist, Dr. Robert Langille. I accept their testimony. The defence raises no argument why their evidence should not be accepted. As a result, Ms. Pires will be found guilty of this offence.
Issue #4: Proof of Impairment
[62] Ms. Pires argues that the Crown has failed to prove that her ability to operate a motor vehicle was impaired by alcohol. The test for impairment is set out in the leading case of R. v. Stellato, 78 C.C.C. (3d) 380 affirmed, [1994] 2 S.C.R. 478. Impairment is an issue of fact: "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out." Having set out the test, I must be mindful that the standard of proof is beyond a reasonable doubt and the Crown's onus is not diluted in any way when considering the question of whether impairment has been proven.
[63] I find that the Crown has proven impairment beyond a reasonable doubt. In coming to this decision, I have regard to the following evidence that I accept.
[64] Ms. Pires was involved in a single vehicle accident. I appreciate that it was snowing and that there was a bend in the road. However, I accept that she had been drinking. The observations of her at the scene and the smell of alcohol confirm this. The fact her sunroof was open is a sign of impaired judgment. P.C. Ogg testified that he came to the scene after to fill out the accident report. He testified that there is a bend in the road but a person would be able to negotiate it without difficulty. He did not see any skid marks in the road. In my opinion, the accident strongly supports the conclusion of impairment.
[65] Mr. Shandhirasegara testified that when the accused came into the gas station store, she smelled of alcohol. He saw a car, a Volkswagen, up against a light or lamp post where it had hit. The woman walked around before asking to use the phone. The woman came toward the door of the store from the direction of the car involved in the accident. He testified that she was unable to keep herself steady. She looked like she could not focus.
[66] I fully appreciate that there could be other innocent explanations for her behaviour and the accident other than impairment. However, when one looks at the whole of the evidence, I conclude that it was her impaired ability to operate of motor vehicle that resulted in the accident and her behaviour. I also have regard to the following evidence that I accept.
[67] Then there were observations of Officer Greener and her opinion. Officer Greener made the following observations at the hospital: odor of alcohol on breath, eyes blood shot and watery, speech slightly slurred, and she was uncooperative. She gave an opinion that Ms. Pires' ability to operate a motor vehicle was impaired by alcohol.
[68] Dr. Robert Langille is a toxicologist and gave expert opinion evidence. Based on the Intoxilyzer readings of Ms. Pires, he opined that her blood alcohol concentration at 4:50 to 5:11 a.m. would be between 175 mg to 230 mg of alcohol per 100 ml of blood. If the driving was up to from 4:50 to 5:30 a.m. it was his opinion that the range would be essentially unchanged.
[69] Dr. Langille gave the opinion that a blood alcohol concentration of 175 to 230 mg of alcohol per 100 ml of blood would impair a person's ability to operate a motor vehicle. I accept their opinions. They were not shaken in cross-examination on this.
[70] As a result based upon the whole of the evidence, I find that the Crown has proven beyond a reasonable doubt that Ms. Pires is guilty on the other count.
Conclusion
[71] I find therefore that the Crown has proven both charges beyond a reasonable doubt. On the basis of the Kienapple principle, the over 80 charge will be stayed and there will be a conviction on the impaired operation of a motor vehicle.
[72] I would like to thank both counsel for their invaluable assistance.
Released: November 19, 2012
Signed: