Court File and Parties

Court File No.: Halton Region, Central West 11-2021

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Cheryl Anne Jackson

Before: Justice Alan D. Cooper

Heard on: April 16, October 30, 2012 & March 27, July 29, October 23, 2013

Reasons for Judgment released: February 12, 2014

Counsel:

• Mary E. Ward for the Crown
• Douglas R. Lent for the accused Cheryl Anne Jackson

Case History

[1] On June 23, 2011, John Demaine was in his Nissan truck about to make a left turn off Mountainview Road onto Comset Gate, in Georgetown in Halton Hills. A Chevrolet Trailblazer SUV driven by the defendant hit him from behind. There was $14,000.00 damage to his vehicle and his leg was swollen, but he made a full recovery. Ms. Jackson told him she had been golfing and had one drink. Mr. Demaine said that he did not suspect that she was intoxicated. He testified that the accident occurred at "approximately 7pm", as did another motorist, Christopher McIntosh.

[2] Officer Shawn Hexter of the Halton Police got to the scene at 7:13pm but was dispatched at 6:59pm, by police radio. The road conditions were dry and clear. When he spoke to Ms. Jackson, she said she had come from her Glad's house, when she meant her Dad's house. Her eyes were red and glossy, she was swaying slightly back and forth on her feet, and was smoking a cigarette. She said she was the driver of the vehicle which struck Mr. Demaine's truck. An odour of alcohol was on her breath, and her movements and speech were slow. She said she had one and a half glasses of wine before the accident. A male at the scene had been speaking with her when the officer arrived, and there appeared to be a disagreement between them.

[3] Officer Hexter formed the opinion that Ms. Jackson's ability to operate a motor vehicle was impaired by the consumption of alcohol and arrested her for impaired driving at 7:36pm. At 7:37pm, he asked officer Craig Slade to drive the defendant to the 11 Division police station in Georgetown, which he did.

[4] Hexter said the defendant was placed in the "female cell" and persons in that cell cannot remain there over night, and are transported to the central lockup cells in Oakville. When asked if that is general procedure in the Halton Region, he replied "It is, especially if they're, you know, intoxicated." He said Ms. Jackson was very intoxicated and hysterical. It was a combined decision of his, officer Ken Best's, and officer Steve Long, to send her to Oakville. This was because of her intoxication, concern for her safety, and to prevent a possible domestic incident, since she had had some sort of disagreement with her boyfriend at the scene of the accident. In cross-examination, he said Sergeant Long was in charge of the station, and another Supervisor, Ken Best, was there as well. Officer Hexter conceded that Ms. Jackson was polite and cooperative for the most part, and had no criminal record.

[5] Officer Chris Slade was at the accident scene at 7:09pm, and was the first officer there. He helped the defendant out of her vehicle. She had a flushed face and red eyes, and was crying, and very emotional. She had no problem getting out of her car or walking. He did smell alcohol on her breath but did not form the opinion that she was impaired by alcohol, and knew she had been involved in a violent motor vehicle accident. He drove her to the police station and when she walked into the station, she had no difficulty walking. He did ask Ms. Jackson if anyone could pick her up at the police station in Georgetown and if she had a telephone number for him. He was not sure he received such information, but if he had, he would have passed it on to other officers at the station.

[6] Officer Chris Borak was the qualified breath technician on duty at the Georgetown police station. The breath room video was played in court, and although Ms. Jackson was crying, she did not exhibit any apparent signs of intoxication, in the opinion of this court. Her blood alcohol readings were 170 and 160 milligrams in 100 millilitres of blood at 8:53pm and 9:15pm, respectively. He said it was the decision of the officer in charge of the station whether to release the defendant there, or have her taken to central lockup in Oakville.

[7] When cross-examined, officer Borak agreed that Ms. Jackson had no physical coordination difficulties and there was no concern she would fail to appear in court. He said the Georgetown station is not an overnight custodial facility. Prisoners are either released from there or taken to central lockup in Oakville. He said that the decision to send Ms. Jackson to central lockup was made either by Officer Long at Georgetown, or by the Staff Sergeant in Milton, but he did not know which one had done it.

[8] Officer Steven Long was an acting Sergeant on the night in question, and was the officer in charge of the station. He said it was "the standard direction" to hold intoxicated persons until the following morning, and he made the decision to send Ms. Jackson to central lockup. However, he said he still considered the defendant's personal circumstances before making that decision.

[9] Of concern to him was her emotional upset and crying, her high blood alcohol readings, and the information he received from the scene that "there could be a domestic involved" if she was released into the care of this domestic partner. Officer Long said the defendant was not acting rationally and decided to send her to central lockup "for her safety and the safety of the public."

[10] He agreed with defence counsel that Ms. Jackson had no criminal record or outstanding charges, and that she was cooperative, not suicidal, not mentally ill or emotionally unstable, and not an escape risk. Even on the prisoner custody record he filled out, he did not note that she was impaired by alcohol. Officer Long apparently made no inquiries to see if another responsible adult, apart from her suspected domestic partner, could pick her up at the Georgetown station. He agreed that she was not released from central lockup until 6:49am, according to the promise to appear which was attached to the information before the court.

[11] An affidavit was introduced by the Crown as an exhibit. This was from Teri Martin, a Forensic Toxicologist with the Ontario Centre of Forensic Sciences. She was of the opinion that at the time of the accident, which she stated to be 6:59pm, the defendant's blood alcohol level would have been between 160 and 205 milligrams of alcohol in 100 millilitres of blood. In Ms. Martin's opinion, at this level, the defendant's ability to operate a motor vehicle would have been impaired.

[12] Ms Martin ventured a further opinion that "impairment with respect to driving becomes significant at a BAC of 50 mg/100 ml and increases from then onward. Whether impairment is apparent depends upon the complexity of the driving task. For example, the impairing effect of alcohol is marked in driving situations that are unpredictable and that require a rapid and appropriate response. Impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance."

Defence Evidence

[13] Cheryl Jackson testified on the Charter application only. I cannot consider her evidence for the purposes of the trial proper. The essence of her evidence is that she was led to believe that she was going to be released at the Georgetown station but was not. In fact, she was taken in custody to the central lockup in Oakville and not released until 6:49am, and was then driven home by her then boyfriend Bob Cowan. Her second breath test was at 9:15pm, the day before, so from that point on she was held in custody for another nine hours and thirty four minutes.

[14] She is a real estate agent in the Halton Hills area and has been since 1991. She has no criminal record. In addition to her boyfriend Bob Cowan, her father, mother, and sister lived in Georgetown and were all available to pick her up at the Georgetown station, had the police called upon them to do so.

[15] Guy Cote is a friend of the defendant's and of Bob Cowan. He drove Mr. Cowan to the accident scene. He did not hear any words spoken between Ms. Jackson and her boyfriend.

[16] Bob Cowan said he went to the scene of the accident with Mr. Cote. He said there was no tension between the defendant and him. He stated that he got no call from the police in Georgetown, and that he would have picked Ms. Jackson up there had he been called. He testified that Ms. Jackson's family and neighbours were also available to drive her home from the Georgetown station.

Over 80 Operation Charge

[17] The defence submits that the time of driving has not been clearly established, and could have been before 6:53pm, and that the Crown Toxicologist erred in her report in assuming an accident time of 6:59pm. The Crown contends that the evidence shows that the accident occurred within a minute or two of 7pm.

Impaired Operation Charge

[18] The defence submits that the evidence of impairment is conflicting, whereas the Crown asks me to accept the Crown evidence which supports impairment.

Charter Application

[19] In the Charter Application, breaches were alleged of sections 8, 9, 10(a) and 10(b), but only the section 9 violation was pursued by Mr. Lent in his submissions.

[20] Defence counsel submits that the nine and one half hour delay in releasing his client after she provided a second breath sample, is contrary to section 498 of the Criminal Code and is an arbitrary detention and a breach of section 9 of the Charter. As a remedy, he relies on section 24, and seeks a stay of proceedings under section 24(1) of the Charter, or, in the alternative, an exclusion of "the appropriate inculpatory evidence obtained as a result of the Charter breaches."

[21] Section 498 of the Criminal Code reads as follows:

Release from custody by officer in charge

498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

• (a) release the person with the intention of compelling their appearance by way of summons;
• (b) release the person on their giving a promise to appear;
• (c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or
• (d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

Exception

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

• (a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
  • (i) establish the identity of the person,
  • (ii) secure or preserve evidence of or relating to the offence,
  • (iii) prevent the continuation or repetition of the offence or the commission of another offence, or
  • (iv) ensure the safety and security of any victim of or witness to the offence; or
• (b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

Where subsection (1) does not apply

(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).

Consequences of non-release

(3) An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer's duty for the purposes of

• (a) any proceedings under this or any other Act of Parliament; or
• (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the officer in charge or other peace officer did not comply with the requirements of subsection (1).

[22] The issue to be decided is whether the alleged overholding of the defendant breached section 498 of the Criminal Code and resulted in an arbitrary detention and a breach of section 9 of the Charter. If it did, is the appropriate remedy a stay of proceedings under section 24(1) of the Charter, or some lesser remedy?

[23] The Crown, Ms. Ward, argues that if there was a section 9 breach, there is no causal connection between the violation and the obtaining of the evidence, and even if there were, this is not one of those clearest of cases in which a stay of proceedings ought to be granted. She relies on R. v. Iseler, [2004] O.J. No. 4332 (C.A.). Armstrong J.A., for the court, in paragraph 31 of the decision, said as follows:

31 While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, "[t]here was no temporal or causal connection between the breach and the obtaining of the evidence". I am accordingly satisfied that this is not "the clearest of cases" warranting the grant of a stay of proceedings.

[24] Armstrong J.A., six years later, sat on R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 (C.A.). No reference was made to R. v. Iseler [supra], but the court made it clear that it is open to a trial to order a stay of proceedings for a post-offence Charter breach, even though there is no temporal or causal connection between the breach and the obtaining of the evidence. Of relevance, are the following passages from the judgment:

48 We begin with a discussion of the legal principles as articulated by the Supreme Court of Canada that govern the granting of a stay of proceedings pursuant to s. 24(1) of the Charter. A useful starting point is R. v. O'Connor, [1995] 4 S.C.R. 411. In that case, the trial judge, [1992] B.C.J. No. 2569, granted a stay of proceedings against the accused for the failure of the Crown to fulfill its disclosure obligations concerning the medical records of the complainants in respect of a number of sexual offences. The British Columbia Court of Appeal set aside the stay and ordered a new trial, [1994] B.C.J. No. 702. The Supreme Court of Canada dismissed the appeal by the accused.

49 In O'Connor, L'Heureux-Dubé J., writing for herself, La Forest and Gonthier JJ., stated that a stay of proceedings is an exceptional remedy to be employed as a last resort, only after canvassing other available remedies. L'Heureux-Dubé J. noted at para. 73 that in Charter cases "concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system." She further added:

In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

50 In Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, a Federal Court judge granted a stay of citizenship revocation proceedings taken against three Canadian citizens, [1996] F.C.J. No. 865. The trial judge held that a reasonable person would conclude that the judicial independence of the court had been infringed by reason of an ex parte meeting between the Chief Justice of the Federal Court and an assistant deputy attorney general. The Federal Court of Appeal allowed the appeal, [1997] F.C.J. No. 2, holding that there was no reasonable apprehension of interference with judicial independence. The subsequent appeal to the Supreme Court of Canada was dismissed.

51 In Tobiass, the court observed at para. 89 that a stay is usually granted to cure some "unfairness to the individual that has resulted from state misconduct". However, the court then confirmed that there is a residual category of cases for which a stay may be an appropriate remedy and referred to para. 73 of the reasons of L'Heureux-Dubé J. in O'Connor. The court in Tobiass emphasized that the residual category of cases is small.

52 The court continued at para. 90 to hold that in either case - where the Crown has rendered the proceedings unfair or has acted in such a way as to adversely affect the integrity of the administration of justice (the residual category) - two criteria must be satisfied:

• (i) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
• (ii) No other remedy is reasonably capable of removing that prejudice.

53 In respect of the above criteria, the court said at para. 91:

The first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective remedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. See O'Connor, at para. 82. For this reason, the first criterion must be satisfied even in cases involving conduct that falls into the residual category. See O'Connor, at para. 75. The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well - society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare.

54 Finally, the court suggested that there may be a third criterion where it is not clear that the abuse in question is sufficient to warrant a stay. In such cases, "it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits": see Tobiass at para. 92.

55 In R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, the court reiterated the principles articulated in O'Connor and Tobiass. In Regan, the trial judge stayed nine counts of sex-related offences on the basis that certain prosecutorial abuse would continue to taint the trial, [1998] N.S.J. No. 128. He relied on the residual category. A majority of the Nova Scotia Court of Appeal reversed the decision of the trial judge, 1999 NSCA 165, [1999] N.S.J. No. 293. The Supreme Court, in a five-four split, dismissed the appeal. In considering the approach to cases in the residual category, Lebel J., for the majority, said at para. 55:

As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system (O'Connor, at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: "[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings" (Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in "exceptional", "relatively very rare" cases will the past misconduct be "so egregious that the mere fact of going forward in the light of it will be offensive" (Tobiass, at para. 91).

56 The court also emphasized that where a judge may be uncertain as to whether the abuse is sufficient to warrant a stay, a traditional balancing of interests should take place: see Regan at para. 57.

57 From the above cases in the Supreme Court, the following principles emerge:

• (1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

• (2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

  • (i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and
  • (ii) no other remedy is reasonably capable of removing that prejudice.

• (3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

58 Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system.

59 When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues. In effect, a stay of the charge against an accused in the residual category of cases is the price the system pays to protect its integrity.

60 However, the "residual category" is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. It seems to us that a court will be required to look at the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.

61 Thus, in our view, a strong case can be made that courts should engage in the balancing exercise set out in the third criterion in most cases coming within the residual category.

62 We now return to the case on appeal and the application of the above principles. In our view, this case falls into the residual category. There is no evidence that the abuse suffered by the respondent in respect of the denial of his right to a timely bail hearing would have an effect on his right to a fair trial. However, as the court said in Tobiass at para. 91, which we repeat for emphasis:

For a stay of proceedings to be appropriate in a case falling in the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice.

63 In this case, it appears that the systemic failure of the bail system in York Region found by the trial judge would likely continue to affect others in the future unless some appropriate action was taken. However, the question that arises is whether continuing the prosecution against the respondent in this circumstance would create prejudice to the system of justice that warrants the use of a stay. In our view, there is an element of uncertainty about the answer to this question. That being the case, the third criterion articulated in the above cases comes into play - a court should then balance the interests served by the granting of a stay against the interest served by a trial on the merits.

64 Unfortunately, the reasons of the trial judge do not suggest that he undertook the balancing exercise. That failure in our view is critical and leads us to conclude that the stay must be set aside. In fairness to the trial judge, counsel on the application for a stay did not submit that he undertake such an exercise.

65 While it may be open to this court, in an appropriate case, to undertake the balancing exercise when none has been undertaken in the court below, we would not do so on the record before us. While we have the evidence concerning the systemic failure and the serious consequences it had for persons in custody awaiting bail in York Region, the record is unhelpful in respect of other interests that are relevant to the balancing exercise. Although the transcript of the bail hearing contains some information that would ordinarily be required for the balancing exercise, much of it was challenged by the respondent.

66 It may be that a stay of the charges against this respondent is an appropriate price for society to pay in order to correct a serious systemic failure in the bail system in York Region. However, it is only after a proper balancing of the appropriate interests is undertaken that a court could come to that conclusion. We observe in passing that the trial judge's order appears to have caused the authorities in York Region to take some steps to address the problem. Counsel for the Crown in the court below conceded during the costs hearing that since the trial judge had ordered the stay of proceedings "we have now been running a second bail court here five days a week, which will obviously have significant benefit to other accused going forward."

Onus

[25] The onus is on the defence to establish a breach of the Charter on a balance of probabilities. However, with respect to section 8, if the search was conducted without a warrant, the Crown must prove, on a balance of probabilities, that the search was reasonable: R. v. Collins, [1987] 1 S.C.R. 265. If the search was unreasonable and a breach of section 8, or if there has been a breach of sections 9, or 10, the defence has the burden of establishing that the impugned evidence, if admitted, would bring the administration of justice into disrepute. On the trial proper, the Crown must prove the essential elements of the charges beyond a reasonable doubt.

Analysis

Over 80 Operation Charge

[26] The motorists John Demaine and Christopher McIntosh said the accident occurred "at approximately 7pm." However, officer Hexter said he received a radio call at 6:59pm, to go to the scene. This means the accident occurred before 6:59pm, but it is unclear just when. Officer Hexter would not have received a call directly from someone at the accident location, because such calls would first go through the police central communications centre. A person calling that centre would have to spend time outlining what had happened, and the centre would then have to radio officer Hexter.

[27] The first breath sample was taken at 8:53pm, and for the Crown to rely on the statutory presumption set out in section 258(1)(c) of the Criminal Code, the accident would have to have taken place at 6:53pm or later.

[28] Section 258(1)(c) of the Criminal Code reads as follows:

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

• (c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
  • (i) REPEALED: Repealed before coming into force, effective December 31, 2010 (S.C. 2008, c. 20, s. 3).
  • (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
  • (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
  • (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things - that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

[29] Even if the Crown is unable to rely on the above presumption, it can still rely on the report of the Centre of Forensic Sciences Toxicologist Terri Martin, as to the progressive absorption of alcohol into the bloodstream in order to relate the readings back to the time of the offence: see R. v. Burnison, [1979] O.J. No. 22 (C.A.). The Toxicologist's Affidavit assumes the accident time as 6:59pm, which is when officer Hexter received the radio call.

[30] I accept the evidence of officer Hexter as to when he received the radio dispatch. The Crown led no evidence as to when the call came into the police communications centre, how long the call took, or how long it was before that information was sent by radio to officer Hexter. Because of this, I am uncertain when the accident actually occurred and am left in a state of reasonable doubt on this issue. This means the Crown cannot rely on the statutory presumption referred to above.

[31] As well, the Crown is unable to rely on the Affidavit of the Toxicologist Terri Martin, because it assumed an incorrect time as to when the accident occurred. As a result, I cannot rely on this affidavit to establish the blood alcohol of the defendant at the crucial time. Accordingly, I find that the Crown has failed to prove this offence beyond a reasonable doubt.

Impaired Operation Charge

[32] Concerning the impaired driving charge, Officer Hexter thought the defendant was impaired, and her blood alcohol readings were 170 and 160 milligrams of alcohol in 100 millilitres of blood.

[33] However, John Demaine, whose vehicle was hit by the defendant, did not think Ms. Jackson was intoxicated. Officer Chris Slade observed the defendant at the scene and drove her to the Georgetown police station, and he did not form the opinion that she was impaired. In cross-examination, the following questions were put and answers given:

Q – "You're saying to us that you didn't see any signs of impairment except you tell us that you didn't see any signs of impairment except you tell us you smell an odour of alcohol, right?

A – I didn't see any observations that could be conclusive of, of observations of somebody being impaired.

Q – I think what you're telling us is it would be equally consistent with an individual who'd been in a violent motor vehicle collision as to a person who might be impaired. The results you're watching could be just the result of a car accident.

A – It would be fair to say that.

[34] The Crown might also rely on the affidavit of Teri Martin, the toxicologist from the Centre of Forensic Sciences. She is of the view that a person with a blood alcohol reading of 50 milligrams or more of alcohol in 100 millilitres of blood is impaired. This scientific definition of impairment is at odds with the "classic signs" of impairment referred to by Labrosse J.A. in R. v. Stellato, 78 C.C.C. (3d) 380, 18 C.R. (4th) 127. It does not take into account the difference between individuals and their tolerance to alcohol, and is too simplistic a formula, in my opinion, on which to convict someone. It is much safer to rely upon the classic external indicia traditionally relied upon by the courts of this country.

[35] In R. v. Stellato [supra], Labrosse J.A. noted the following:

"At trial, the Crown's evidence consisted of the testimony of the arresting officer and the breathalyser technician who had observed the classic signs of impairment: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on his feet."

[36] Stellato enunciated that even though the onus is on the Crown to prove impairment beyond a reasonable doubt, if the evidence establishes any degree of impairment ranging from slight to great, the offence has been made out.

[37] At times, scientific definitions do not coincide with legal ones. An example of this can be found in R. v. Stone, [1999] S.C.J. No. 27, in which Bastarache J. stated the following:

197 Taken alone, the question of what mental conditions are included in the term "disease of the mind" is a question of law. However, the trial judge must also determine whether the condition the accused claims to have suffered from satisfies the legal test for disease of the mind. This involves an assessment of the particular evidence in the case rather than a general principle of law and is thus a question of mixed law and fact. See Southam, supra, at paras. 35 and 36. The question of whether the accused actually suffered from a disease of the mind is a question of fact to be determined by the trier of fact. See Rabey (S.C.C.), supra, at p. 519, per Ritchie J.; Parks, supra, at p. 897, per La Forest J.; and Bratty, supra, at p. 412, per Lord Denning.

198 In response to the above-mentioned proposed revisions to the Code regarding automatism, the Canadian Psychiatric Association submitted a Brief to the House of Commons Standing Committee on Justice and the Solicitor General. In this brief, the Association, on behalf of its 2,400 members nationwide, suggested that from a medical perspective, all automatism necessarily stems from mental disorder. Accordingly, the Association recommended that non-mental disorder automatism be eliminated and all claims of automatism be classified as mental disorders.

199 Since mental disorder is a legal term, the opinion of the Canadian Psychiatric Association, while relevant, is not determinative of whether two distinct forms of automatism, mental disorder and non-mental disorder, should continue to be recognized at law. In my opinion, this Court should not go so far as to eliminate the defence of non-mental disorder automatism as the Association suggests. However, I take judicial notice that it will only be in rare cases that automatism is not caused by mental disorder. Indeed, since the trial judge will have already concluded that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities, there is a serious question as to the existence of an operating mind by the time the disease of the mind issue is considered. The foregoing lends itself to a rule that trial judges start from the proposition that the condition the accused claims to have suffered from is a disease of the mind. They must then determine whether the evidence in the particular case takes the condition out of the disease of the mind category. This approach is consistent with this Court's decision in Rabey, supra.

[38] In the result, I find I must adhere to the legal definition of impairment, rather than the scientific one. Because of the conflicting evidence of impairment, I conclude that the Crown has not proven beyond a reasonable doubt the offence of impaired driving.

The Charter Application

[39] In view of my findings above, it will not be necessary to address the Charter issues in this case.

Conclusion

[40] The defendant is found not guilty of both charges which are before this court.

Released: February 12, 2014

Signed: "Justice Alan D. Cooper"