R. v. Ponnampalam

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kandeepan Ponnampalam

Before: Justice Hackett

Heard on: December 5, 2011 and March 9, 2012

Reasons for Judgment released: March 29, 2012

Counsel:

Malcolm Savage, for the Crown

Graham Zoppi, for Kandeepan Ponnampalam

HACKETT J.:

[1] Introduction

[1] This is a decision at the completion of a trial for charges of impaired driving and over .08. In this, as in all criminal prosecutions, the onus rests upon the Crown to prove each and every element of the offences beyond a reasonable doubt.

OVERVIEW

[2] Only one witness was called at trial, P.C. Kristy Collins. This officer was on duty, in uniform, on November 28, 2009, and assigned to a R.I.D.E. stop. At approximately 11:25 p.m., the accused drove towards this spot check. At the time, the officer described that his vehicle was "hugging" or very close to the curb and that the accused was driving unusually slow, allowing that vehicles do slow down when they enter a spot check.

[3] The officer stopped his vehicle. There was a female passenger in the front seat. At this time, P.C. Collins made the following observations: the accused was unable to focus; he was asked if he had consumed any alcohol and he said no; she noticed an odour of alcohol beverage on his breath; the accused's hands were shaking; and he had a newly lit cigarette in his hand.

[4] At this point, P.C. Collins testified that she had a reasonable suspicion that the accused had consumed alcohol and was operating a motor vehicle. At 11:27, she read the accused the roadside demand from her memo book. The accused understood. At that point Mr. Ponnampalam exited his vehicle and stumbled slightly on his first step. The officer also described him as unsteady on his feet when he walked to the police vehicle. P.C. Collins prepared the roadside device and demonstrated its functioning. The accused then attempted to perform the test with a new mouthpiece. He initially requested a cigarette, which the officer denied. He then attempted to blow on five occasions before finally providing a suitable sample. The accused registered a "fail" at 11:30 p.m.

[5] The officer testified that an "F" or fail means that the concentration of alcohol in the body of the individual is at least 100 mg of alcohol in 100 millilitres of blood. As a result, the officer arrested the accused for over 80 at 11:31 p.m.

[6] The accused was then advised of his right to counsel and given the demand for a further sample using an approved instrument. Mr. Ponnampalam was placed in the back seat of the police vehicle at 11:34 p.m. and at 11:37 p.m., they drove to the police station.

[7] During the trip, P.C. Collins noticed a strong odour of alcohol coming from the rear of her vehicle. At one point, the accused fell asleep in the back seat. He also repeatedly asked the question, "Where is my wife?" They arrived at the station at midnight. The officer described that there were several cars in front of their vehicle in the sally port and multiple people at that Division who had been arrested for impaired driving or over 80 and who needed to provide samples of their breath.

[8] At 12:17 p.m., the accused was paraded and then taken to a bench. He was then placed in contact with duty counsel. Upon completing his private conversation with duty counsel, he was turned over to the qualified breathalyzer technician at 12:57 a.m.

[9] Two tests were taken with the appropriate period of time in between. Exhibit No. 1 is the breathalyzer technician's certificate.

[10] While in the breath room, the accused asked P.C. Collins for water, which she indicated was another factor that led her to believe that he was impaired.

ISSUES

[11] Counsel have worked hard to narrow the issues. There are four main issues: (1) the sufficiency of the grounds for the approved screening device demand; (2) the reasonable and probable grounds for the approved instrument demand; (3) whether the breathalyzer tests were administered "as soon as practicable"; and (4) the sufficiency of the evidence of impairment.

[12] Counsel on behalf of the accused has brought an application under sections 8 and 9 of the Canadian Charter of Rights and Freedoms. This Charter application proceeded in a blended fashion with the trial. In the event that a breach of one or more of the accused's Charter rights is established, there is also the issue of section 24(2) of the Charter and the exclusion of any evidence relied upon by the Crown thereafter, including the breathalyzer results.

(1) Grounds for the Approved Screening Device Demand

[13] The defence argues that the arresting officer did not have sufficient grounds to make a demand for the approved screening device. Specifically, the defence submits that the officer's evidence is not credible with respect to having noticed an odour of alcohol coming from the breath of the accused given that she made no note in her memo book that the odour was specifically on the accused's breath.

Issue (1) Case Law

[14] The defence referred to three decisions in relation to this issue. In R. v. Pozniak, [2008] O.J. No. 687 (O.C.J.) (February 14, 2008), the court dealt with the reasonableness of the officer's grounds for his suspicion that the accused was operating a motor vehicle and had alcohol in his or her body. This same issue was also dealt with in R. v. Agapito, [2007] O.J. No. 1720 (O.C.J.) (April 19, 2007). In both of these cases, Justice Bourque referred to Justice Kenkel's textbook Impaired Driving in Canada and adopted the following quotation at page 4:

Although the threshold is low, there must be evidence capable of demonstrating that the officer had a reasonable suspicion that the driver has alcohol in his or her body in order to make the A.S.D. demand. This does not mean simply that alcohol had been consumed at some point that day or the officer could detect alcohol in the vehicle or even on the person. The suspicion must be that the accused had alcohol in the body at that time and there must be objective evidence to support this conclusion. (R. v. Beechinor, [2004] S.J. No. 187 at para. 23 Sask. Prov. Ct.). [Emphasis original.]

[15] In R. v. Agapito, supra, the officer, who stopped a motor vehicle with two occupants, did not know where the odour of alcohol he had detected was coming from, and certainly could not tell if it was coming from the accused's mouth. Both occupants were smoking. The accused had denied consuming any alcohol and there was nothing unusual about his driving. As a result, with the A.S.D. machine in hand and without an A.S.D. demand, the officer conducted an investigative procedure. He had the accused blow into a tube from that machine in order to isolate the odour and told the accused it was preparation for the A.S.D. test. The court held that the officer did not have reasonable grounds for the A.S.D. demand.

[16] In R. v. Pozniak, supra, the arresting officer noted an odour of alcohol coming from the vehicle, but with 3 occupants, he was not able to distinguish where the smell was coming from. There were no other signs of impairment other than equivocal slurred speech. While the accused admitted that he had been drinking, the evidence was not clear as to when that occurred. The court held that objectively, the officer did not have reasonable grounds to suspect that the driver had alcohol in his body at the time of the A.S.D. demand.

[17] In R. v. Zoravkovic, [1997] O.J. No. 1010 (March 10, 1997) (Gen Div.), the arresting officer did not detect an odour of alcohol prior to administering the roadside screening device. In addition, there were no other indicators of impairment, save and except for red eyes, dilated pupils, and some trouble retrieving his driver's license. At both trial and on appeal, the courts held that the officer did not have reasonable grounds upon which to have a reasonable suspicion that the accused had alcohol in his body.

Issue (1) Findings

[18] The evidence from Officer Collins indicates that she formed a reasonable suspicion that the accused had alcohol in his system, while operating his motor vehicle, based upon seven factors:

1. the vehicle was driven very close to the curb;
2. the vehicle was driven unusually slowly;
3. he was unable to focus when she spoke with him;
4. "when I asked the male if he had consumed any alcohol, I noticed the odour of an alcoholic beverage on his breath";
5. he responded that he had not consumed alcohol when asked;
6. he had a newly lit cigarette, which she suspected was being used to mask the odour of alcohol; and
7. the accused's hands were shaking.

[19] In cross-examination, the officer admitted that she did not note that the odour of alcohol was "on his breath" in her notebook. When asked to explain why, given the importance of this observation for her reasonable suspicion, she explained that she noted the odour of alcohol in conjunction with their conversation about his consumption of alcohol. In addition, she testified, "If I had not smelled it (the alcohol) on his breath, I would not have had a reasonable suspicion."

[20] It is clear that an officer's notes are important because it is difficult to remember and distinguish the details of each individual impaired case. Many details are often similar in these cases.

[21] In this particular case, the trial took place just over two years after these events. Common sense dictates that it generally would be difficult for an officer to specifically remember an odour of alcohol, and where it came from, two years after the event without a notation. However, in this case, the officer's notation about the odour of alcohol was noted in her notebook in the context of her having a conversation with the male about consuming alcohol. The notation was not made prior to her engaging in that conversation with the accused. In my view, given that context, I accept her evidence that she can recall that she was able to detect the odour of alcohol on his breath during that conversation. In addition, in her evidence she made it very clear and offered that she knew that she would not have had reasonable grounds to suspect alcohol in his system without that observation.

[22] While the defence contrasted the absence of a specific note about the source of the smell when she spoke to the accused, with her specific notation that she later smelled alcohol in her vehicle when he was in it, I do not find that that contrast undermines her credibility or reliability about the location of the smell at that earlier point in time in all of the circumstances.

[23] For all of these reasons, it is my view that the Crown has established that the officer had, both subjectively and objectively, on reasonable grounds, reason to suspect that the accused was operating a motor vehicle with alcohol in his body.

[24] Finally, the defence also argued that the court might not be satisfied that there was evidence of the consumption of alcohol. In my view, the evidence that there was alcohol on his breath, both subjectively and objectively, justify this officer's belief that the accused had alcohol in his body.

(2) Reasonable and Probable Grounds for Breathalyzer Demand

[25] There are two arguments to consider on this issue.

(a) First, the defence argued that because P.C. Collins does not understand what error messages can be produced on a roadside screening device, she could not be satisfied subjectively, and the court could not be satisfied objectively, that the machine was working properly when the fail was registered. It is submitted that she therefore did not have reasonable and probable grounds as the result of the A.S.D. fail to proceed to make the breathalyzer demand.

(b) Secondly, the defence argued that there is insufficient evidence that the officer knew what a "fail" on the screening device meant and, therefore, did not have reasonable and probable grounds to make the breathalyzer demand.

(a) Error Messages

[26] During cross-examination, P.C. Collins testified that she was trained on the Alco-test 741 GIC, which she used on the night in question. She also testified that she was familiar with it and how tests are done on that machine. P.C. Collins agreed that she operated the machine in accordance with her training and in accordance with the manual. When asked what different error messages can be displayed on the machine, she testified as follows:

"A. Just an 'E' if the sample isn't given; and I don't know – if the device isn't working. I don't know all the specific codes, but there's a light at the bottom that says ready it turns green when the device is working properly and it doesn't give an err [sic] message, so I know that the device is working properly."

[27] Later, she reiterated: "I just know the 'E'". When it was then suggested to her that an "E" is always accompanied by a number, she responded: "I just know that if there's an 'E' there's an error … I don't know them specifically."

[28] Further, in cross-examination, she was asked the following questions and gave the following answers:

Q. And you know that some of those errors can be due to insufficient sample, correct?

A. Yes.

Q. And you know that some of those errors can be due to a malfunction in the device.

A. That's correct.

Q. All right; so, in the present case you had Mr. Ponnampalam blow five times, correct?

A. That's correct.

Q. Can you tell me looking at your notes if you make any notations as to what the error messages were from those failed attempts?

A. No, I didn't make a note about what the error message said.

Q. So you'll agree with me in review of your notes you can't tell what the error messages were that were coming on that machine during those five failed attempts, correct?

A. I can tell you that the device was working properly. When Mr. Ponnampalam provided his sample there was an error and that made me do another test.

Q. Officer, the question that was asked was looking at your notes …

A. Mm-hmm.

Q. … we, as a Court, reviewing your notes …

A. Yes.

Q. … cannot tell what kind of error messages the machine was registering, …

A. That's correct.

Q. … correct?

A. There's no note in my notes which error message …

Q. Okay. So for all you knew at the time when you were getting those five failed attempts with errors …

A. Mm-hmm.

Q. … it could have been giving you the error message that the machine is not functioning properly, correct?

A. I had just checked the machine before I provided …

Q. But that's not the question I asked.

A. … it to the accused.

Q. The question I asked you is based on the error reading …

A. Yes.

Q. … that the machine was giving during those five failed attempts …

A. Mm-hmm.

Q. … you cannot, based on your knowledge that you had, tell this Court with any certainty that those messages that were being displayed were not error messages were saying the machine was not functioning.

A. I can't tell you specifically what the error represents.

Q. … correct? All right; and similarly you wouldn't make an arrest on use of a roadside screening device that you weren't certain was in good working order, …

A. That's correct.

[29] Based upon this evidence, the defence has argued that P.C. Collins could not have known that the approved screening device was functioning properly on this occasion. Without understanding the error messages, the defence argues that even if the officer subjectively believed that the machine was functioning properly, objectively that was not reasonable.

[30] The Crown has argued that the evidence of the officer establishes that there was a green light that was activated and it indicated to the officer that the machine was ready and was working properly. Her testimony was that once there is a green light and no error message, then she knows that the device is working properly. P.C. Collins' evidence in that regard was not contradicted and the Crown argues that therefore, objectively, there is reason to find that the officer did form reasonable grounds for the breathalyser demand on both a subjective and an objective basis.

Issue (2a) Case Law

[31] The defence relies heavily upon the decision of R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579. The facts in that case are quite distinguishable from the present case. In Au-Yeung, the arresting officer had been trained on the approved screening device in 1984 and had not been re-trained in 23 years. He also admitted his lack of expertise in drinking and driving investigations. Specifically: he did not do a self-test on the device before administering it to the accused; he did not check when the device had been last calibrated; he did not know if any error messages were shown and that some error messages mean that no more tests should be conducted and the machine should be serviced; he did not know what a fail looked like on the device; and, finally, he admitted that he had forgotten a lot of his training and was not even sure if he had used the device properly.

[32] As a result, the trial judge found a violation of section 8 of the Charter and concluded that the arresting officer could not reasonably rely upon a "fail" on the device when "he did not even know how to properly use it." In agreeing with the trial judge on appeal, Justice Ducharme commented in para. 55 that:

The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform A.S.D. tests must execute their duties efficiently, competently, and accurately. There is no question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breath samples both for roadside screening and ultimately for the determination of blood alcohol levels. Nonetheless, the administration of justice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention, and subsequent testing of drivers. As Sopinka J. observed in Bernshaw at para. 74:

Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code. [Emphasis added.]

[33] The defence has relied upon Au-Yeung to argue that if an officer is not aware of the meaning of an error message, the officer cannot be satisfied that the machine is working properly and therefore, that this officer did not possess reasonable and probable grounds to make the breathalyzer demand either subjectively or objectively.

[34] The Crown argued that Au-Yeung does not stand for the proposition that all officers must understand the error messages otherwise they cannot rely upon a fail to form reasonable and probable grounds to make the breathalyzer demand. Rather, the Crown argued that there were many errors committed by the administering officer in Au-Yeung, and that that case turned upon a whole series of factors, especially his not knowing whether or not the machine had been operated properly.

[35] In addition, the Crown submits that the case at hand is distinguishable from Au-Yeung in that a second officer testified in Au-Yeung that certain error messages mean that, "No more tests should be done and the A.S.D. should be serviced." There is no such evidence in this case.

[36] The Crown relied upon the decision in R. v. Paradisi, [1998] O.J. No. 2336 (C.A.). In that case, the defence called an expert who testified that he was concerned about the reliability of the A.S.D. results however, there was an absence of any evidence that the screening device was not operated or operating properly at the time in question. The Court set out in paragraph one that, "The onus is on the accused to lead evidence at trial that there was a 'high degree of unreliability with respect to the screening device at the time that it was administered to the accused: see R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.) at 219." In this case, the Crown argues that the accused has not met this onus and the only evidence is that of P.C. Collins who testified that the machine was working properly and why. Based upon that evidence, both subjectively and objectively, the Crown submits that she had the necessary grounds.

[37] Subsequently, in the decision in R. v. Mastromartino et al. (2004), 70 O.R. (3d) 540 (S.C.), Justice Durno stated, at paras. 78 and 79:

[78] An officer may administer a screening device notwithstanding he or she is unfamiliar with the intricacies of the screening device: R. v. Paradisi, [1998] O.J. No. 2336 (Ont. C.A.) (QL); reversing [1997] O.J. No. 5361 (S.C.J.) (QL)

[79] An officer using an A.S.D. need only have a reasonable belief that the device is properly calibrated and in working order before relying on a "fail" result to confirm his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly: R. v. MacPherson, unreported, released, March 11, 2044 (S.C.J.); R. v. Coutts (1995), 45 O.R. (3d) 288 (Ont. C.A.); R. v. Hill, [2001] O.J. No. 4505 (S.C.J.)(QL). As Moldaver J.A. noted in Coutts at p. 232:

Manifestly, where a roadside test is being used solely for the purpose of confirming or rejecting a police officer's suspicion that a motorist might be impaired or over the legal limit, none of these facts need be proved. It is sufficient if the administering officer believes them to be true. Where, however, the test result is being offered for the truth of its contents, these facts must be proved by admissible evidence.

[38] The Crown relies upon this decision to argue that in this case, the officer reasonably believed that the device was both operated and operating properly and her lack of knowledge about the error readings does not matter.

[39] In R. v. Topaltsis, [2006] O.J. No. 3181, the Ontario Court of Appeal again dealt with the issue of the reasonable and probable grounds of an officer subsequent to the use of an approved screening device. At paras. 8 and 9, the Court stated:

On appeal to this court, the Crown contends that the trial judge erred by applying the wrong test in determining whether the officer had reasonable and probable grounds to demand a breath sample. In particular, the Crown submits that the trial judge required the Crown to prove that the approved screening device that was used in this case (and which registered a fail) was in good working order when the police officer administered the test to the respondent. Further, the Crown contends that the Summary Conviction Appeal Court judge erred by failing to recognize that the trial judge applied the wrong test.

We accept the appellant's submissions. We are satisfied that rather than simply assessing whether, on an objective basis, the officer had reasonable grounds for believing that the approved screening device was in good working order, the trial judge embarked on a consideration of whether the evidence established that the device was in good working order. Further, because the trial judge applied the wrong test, his finding that the officer did not have reasonable and probable grounds is tainted and cannot stand.

[40] Finally, in the decision of R. v. Rahman, [2012] O.J. No. 415 (C.J.), Madam Justice Marin again dealt with the reasonable and probable grounds for a breathalyzer demand based upon the results of an approved screening device.

[41] At para. 25, Justice Marin dealt with error codes and stated:

Constable Kang noted that there is no error code E01. However, he said that he has sometimes perceived the code E0 as a double digit code, E01, because it is only displayed for a brief time when the subject stops blowing. When there is insufficient air to obtain a reading, the device automatically resets itself and the error code quickly disappears. An error code of E0 can be the result of advertent action by the subject, such as blocking the tube with the tongue, or inadvertent action, by not blowing long enough. Constable Kang testified that if the machine registered one of the higher error codes, between E1 and E6, the device would not automatically reset itself and it would be very obvious to the officer using it because the error code would not disappear.

Issue (2a) Findings

[42] In my view, the evidence in this case is both similar to, and distinct from, the evidence before the Court in Rahman. In my view, the evidence of P.C. Collins is that when she has a green light without an error message, she knows that the device is working properly and she knew it was working properly at the time in question. It is implicit in her evidence that that is what happened on that date. She was not challenged in that regard. There is no evidence that contradicts Officer Collins. The only other relevant evidence is that some error messages mean one thing and others mean something else. It is my view that there is no requirement that an officer know all of the error messages, even when some mean that the machine is not working properly. Rather, the court must be satisfied that objectively the officer had reasonable grounds to believe that the device was working properly.

[43] Based upon evidence that there was a green light and no error message and she knew it was working properly, I find that P.C. Collins both subjectively and objectively had reasonable grounds to believe that the device was working properly. I also find that the "fail" then provided her with the necessary reasonable and probable grounds to make an approved instrument demand.

(b) The Meaning of "F" and Evidence of Calibration

[44] The defence argued that during cross-examination, the officer contradicted herself in that, by inference, she testified that she did not know or take into account what an "F" or "fail" meant in coming to her reasonable grounds. The specific questions and answers the defence relies upon to make this submission are found at page 52 of the transcript during cross-examination:

Q. Okay. And so all the details that you could provide in terms of making sure you had accurate details for the investigation, those are on the sticker and/or scratched in the side and they've been recorded in your memo book, correct?

A. That's correct. (Emphasis added.)

[45] The Crown argued that the officer made it clear in her testimony in chief that she was well aware of what an "F" on the instrument meant. At page 14 of the transcript, she testified:

A. When someone registers an 'F' on the roadside device it means that the concentration of alcohol in the male's system – or sorry, the accused's system was over 100 milligrams. They're calibrated to be at 100, but an fail [sic] for an impaired driving is an 80.

Q. 100 milligrams of what?

A. Of alcohol per millilitre of blood.

Q. How many millilitres?; sorry.

A. 100. (Emphasis added.)

[46] The Crown submits that the totality of her evidence indicates that systemically, all of the roadside screening devices are calibrated to 100 milligrams of alcohol per 100 millilitres of blood. Further, the Crown argues that the evidence indicates that P.C. Collins knew that and took it into account in arriving at her grounds.

[47] The quotation that the defence relies upon from page 52 is not clear as to the meaning of "all the details" "for the investigation". In my view, "all of the details" for an individual case would not necessarily include a belief that systemically all approved screening devices are calibrated to 100 milligrams of alcohol in 100 millilitres of blood. In addition, the question did not specifically and clearly ask her about all the evidence that she relied upon for the purpose of forming her reasonable and probable grounds. In that regard, in my view, her testimony taken as a whole makes it clear that she relied upon her knowledge about the usual calibration of these machines in forming her grounds. The officer's agreement with the wording of that defence question in cross-examination does not undermine that evidence.

[48] In my view, based upon all of the evidence, the officer's evidence is clear that she knew what an "F" meant on this roadside screening test and took that into account. For these reasons, I find that she both subjectively and objectively had reasonable and probable grounds to make the breathalyzer demand.

(3) "As Soon as Practicable"

[49] For the presumption in section 268(c) to apply, the samples must be taken "as soon as practicable".

[50] The defence argues that the 17-minute gap between the arrival of the accused at the station and the parading of the accused before the staff sergeant is not accounted for and that the breathalyzer tests were therefore not taken as soon as practicable. The Crown referred to the case of R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.). That case stands for the proposition that "as soon as practicable" must be applied with regard to the whole chain of events and the tests must be taken within a reasonably prompt time in all of the circumstances. The Crown also relies upon that case to establish that there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused was in custody.

[51] In this case, the arresting officer testified that upon their arrival at 41 Division at midnight, there were several cars in front of them. At 12:17 a.m. she was able to enter the sally port and proceed to parade the accused. The officer added that the delay in the sally port was because there were multiple vehicles ahead of her and there were multiple people at the division who had been arrested for impaired or over 80 that night. P.C. Collins also described 41 Division as a very busy police station.

[52] She asserted that the only time she has ever been delayed at the sally port is when there is someone in front of her. P.C. Collins acknowledged that she did not make a note of the exact number of people, but she testified that she did remember people being in front of her. In cross-examination, the officer agreed with the suggestion that her notes did not indicate why they were waiting for those entire 17 minutes and she could not tell if the desk sergeant also used the washroom during this time.

[53] Obviously, two years have passed since the time of this investigation. It would have been preferable for the officer to record more details about why they did not enter the station for 17 minutes. Nevertheless, this officer testified in a straightforward manner and, in my view, her explanation is some evidence about why it took so long to take the accused before the staff sergeant. I find her evidence in this regard to be credible and reliable.

[54] In my view, the evidence of other vehicles ahead of her and other test subjects are circumstances that must be taken into account to explain this time period and also indicate that the police officer was acting reasonably.

[55] I therefore find that, based upon all of the evidence, the Crown has established that the tests were taken as soon as possible.

(4) Impaired

[56] The defence argued that the Crown has failed to prove impaired operation beyond a reasonable doubt. In this regard, the officer did not arrest the accused for impaired driving until the breathalyzer tests had been administered. She agreed in cross-examination that the only additional evidence that she felt was relevant to her grounds for the arrest on the impaired after the accused failed the roadside screening device were that: (1) the accused fell asleep in the back of her vehicle; (2) he repeatedly asked where his wife was; (3) the back of her vehicle smelled strongly of alcohol when he was in there; and (4) he asked for a glass of water during the tests at the station.

[57] The time of the arrest for impaired was at 1:42 a.m. after the breathalyzer tests. In cross-examination, P.C. Collins testified that after the approved screening test, she believed that the male was impaired by alcohol in some form but she did not know where on the scale, in other words, to what extent.

[58] In my view, the factors P.C. Collins had to consider before the breathalyzer results included: the "hugging" of the curb; driving unusually slowly; the odour of alcohol; his inability to focus; a slight stumble when exiting the vehicle; unsteadiness when walking to the vehicle; passing out in the cruiser; and repeating the question about his wife. The driving itself, in my view, and presumably in her view given her evidence, was not a marked departure from the norm in the circumstances. He was stopped at a police R.I.D.E. program, which is not normal, and which could explain the very minor ambiguous driving features she noted. The shaking hands, inability to focus, and smoking or the desire to smoke could also all be related to nerves from being stopped by the police. The stumble was slight. It and his unsteadiness are difficult to assess after the fact. Based upon these first-hand physical observations, the officer obviously could not, in her own words, determine where he was on the scale of impairment. In addition, this was late at night. Consequently, the accused falling asleep and his concern about his wife/passenger were also not unusual, particularly given the absence of evidence that the police ever answered his question.

[59] In cross-examination, P.C. Collins testified:

Q. And essentially what you're relying on his the readings to make that arrest. That's fair to say?

A. I'm also present in the breath tech room and everything is on video, …

Q. Right.

A. … so.

Q. But the question I had for you was in terms of what's different at this point in the investigation is that you've received the readings, correct?

A. The only – I've received the readings which, along with all the other facts that I've mentioned, gave me my grounds.

Q. Right, but until that point, until you had the readings you didn't think you had grounds to make the arrest for impaired operation or you would have, correct?

A. I didn't make the arrest for impaired driving until after.

[60] While I am not bound by the officer's opinion before the breathalyzer tests that she did not know how impaired the accused was, based upon all of the indicia she had at that time, I am not prepared to draw a different conclusion given her first-hand observations. Finally, there is no expert evidence before this court to establish what level of impairment would result from the readings themselves at the time of driving. While the officer may have relied upon these results to come to her conclusion the accused was impaired, this court cannot without further evidence.

[61] Taken as a whole, in my view, there is a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by alcohol. Consequently, based upon all the evidence, I find that the Crown has not met its onus of proof on the impaired count.

CONCLUSION

[62] Given the warrantless searches arising from the use of both the A.S.D. and the approved instrument, the onus on the Charter application rests upon the Crown on a balance of probabilities. For the reasons above, I find that the Crown has established on a balance of probabilities that the officer had the necessary grounds to make both the A.S.D. and the breathalyzer demands. The section 8 and 9 Charter application is therefore dismissed.

[63] Based upon all of the evidence, I find that P.C. Collins was a credible and reliable witness. I also find that the Crown has met its onus of proof beyond a reasonable doubt with respect to the over 80 count. The Crown has failed to meet its onus with respect to impaired operation. The accused is therefore acquitted of count 1 and convicted of over 80 in count 2.

Released: March 29, 2012

Signed: "Justice Hackett"