Court File and Parties

Court File No.: Halton Region, Central West Region 13-1999

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jason S. Bero

Before: Justice Alan D. Cooper

Heard on: January 7, May 8, & June 25, 2014

Reasons for Judgment released: August 27, 2014

Counsel:

• Monica A. MacKenzie for the Crown
• Brian E. Starkman for the accused Jason S. Bero

Case History

[1] On June 29, 2013, in Burlington, Jason Bero was charged with impaired driving and driving a motor vehicle after having consumed alcohol in excess of the legal limit.

[2] On that day, at 6:34pm, officer Kris Elliott of the Halton Regional Police Service, saw the defendant exit Upper Middle Road and drive north on Walker's Line. The officer was in the left of two lanes in an unmarked police vehicle. Mr. Bero was directly behind him and then passed him in the right lane at a high rate of speed in a community safety zone.

[3] Once signalled to stop, the defendant pulled over promptly to the side of the road. The officer then noted that the licence plate had an expired validation tag. Mr. Bero was the sole occupant.

[4] Officer Elliott said the defendant's hands were shaking and his reactions slow in getting his driver's licence from his wallet. His face was flushed and he had red, bloodshot eyes. There was an odour of alcohol on his breath and his speech was slurred. He had been golfing and had two pints of beer at Gator Ted's sports bar on Upper Middle Road.

[5] At 6:40pm, the officer formed reasonable and probable grounds that the ability of the defendant was impaired by the consumption of alcohol, and he was arrested, and given his right to counsel and caution information.

[6] After he was charged, Mr. Bero was directed to get out of his vehicle and as he did he stumbled by taking a step to the left and one to the right. He was taken to the nearby police station and turned over to officer Pam Douglas, the breath technician.

[7] Officer Elliott verbally gave his grounds for arrest to officer Douglas, who then wrote this information on a form known as the "Intoxilyzer Information Sheet." The grounds were listed as follows:

"Observed vehicle high rate of speed travelling N. on Walker's Line. Val tag expired Traffic stop. Obvious signs of impairment, eyes, smell of liquor emanating, slurry speech Arrested / Chartered / Cautioned / Breath demand."

[8] In cross-examination, officer Elliott agreed that Mr. Bero's vehicle did not weave from its own lane, and that he pulled over promptly when directed to do so. The high rate of speed was not measured, so the officer was unable to say what the speed actually was.

[9] Officer Elliott also agreed that he made no mention in his notebook of the defendant's slow reaction in retrieving his driver's licence, but it was in his willsay statement. The slow motor skills were also not noted in the Intoxilyzer Information Sheet.

[10] As for the slurred speech observed at the road side, the officer noted it in his notebook, and mentioned it in the Intoxilyzer Information Sheet. The officer insisted that the speech was also slurred at the police station, but he made no note of this. He said that if the breath technician were to testify that Mr. Bero's speech was not slurred at the police station, he would disagree. He could not recall which words were slurred.

[11] Officer Elliott also insisted that the defendant was unsteady on his feet the whole time he dealt with him, but no note was made of this, except when Mr. Bero exited his own car at the scene.

[12] There was no reference to the defendant's flushed face in the officer's notebook, or willsay statement, or in the Intoxilyzer Information Sheet. When asked why not, officer Elliott said this came from his memory.

[13] On the next trial continuation date, officer Elliott was recalled to the witness stand, because on that morning the breath room video was disclosed to the defence for the first time, and counsel had an opportunity to watch it at recess time.

[14] During this questioning, the officer said that in the video the defendant's speech was not as slurred as it was at the roadside. Officer Elliott maintained that Mr. Bero's speech at the scene was slightly slurred, and it was even less so at the police station.

[15] Officer Pam Douglas, the qualified breath technician, was the next Crown witness. She stated that Mr. Bero provided two samples of his breath and they both registered as 190 milligrams of alcohol in 100 millilitres of blood. She also testified that the defendant had the smell of alcohol on his breath, a flushed face, and bloodshot eyes. He was polite and cooperative but was crying and emotional. She