Court File and Parties

Court File No.: Newmarket Courthouse # 09-07025

Date: 2012-04-12

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Richard Vaive

Before: Justice Anne-Marie Hourigan

Heard on: February 22, 2011, February 23, 2011, August 3, 2011, August 5, 2011, February 16, 2012, February 22, 2012 and April 12, 2012

Reasons for Judgment released on: April 12, 2012

Counsel:

Mr. J. Fuller, for the Crown

Mr. C. Barry, for the accused Richard Vaive

Hourigan J.

Introduction

[1] Mr. Vaive stands charged with two counts on the Information before the Court. It is alleged that on July 14, 2009 he operated a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code, and further that on that same date, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, he operated a motor vehicle contrary to s. 253(1)(b) of the Criminal Code.

[2] Mr. Vaive pled not guilty to these two counts and the matter proceeded before this Court by way of a blended Charter Application and trial.

[3] On the Charter Application Mr. Vaive seeks, by way of remedy, the exclusion from evidence of the breath readings obtained in this case, pursuant to s. 24(2) of the Charter, based on an alleged violation of his s. 8 and s. 10(b) rights as guaranteed by the Charter.

[4] On the trial proper, counsel on behalf of Mr. Vaive submits that the Crown has not met its onus and proved its case beyond a reasonable doubt on the two counts before the Court. In relation to the impaired operation count it is argued that the Crown has not proved beyond a reasonable doubt that Mr. Vaive's ability to operate his motor vehicle on the date in question was impaired by alcohol. On the over 80 milligrams charge the defence has advanced what is known as a Carter defence, asserting that credible evidence adduced by the defence as to the Defendant's drinking pattern at the relevant time, taken together with expert testimony, raises a reasonable doubt as to the accuracy of the breath readings obtained in this case.

[5] In these Reasons, I will begin by addressing the Charter Application and then I will deal with the defences raised on the trial proper.

Charter Application

[6] As indicated, on this Charter Application the Applicant seeks by way of remedy, the exclusion from evidence of the breath readings obtained by the police in this case from Mr. Vaive pursuant to s. 24(2) of the Charter.

[7] The basis for this exclusion, the Applicant asserts, is that his rights as guaranteed by s. 8 and s. 10(b) of the Charter were violated by the police.

A) Section 8 Violation

[8] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.

[9] On this Application, the Applicant asserts that his rights as guaranteed by this Section were violated in two ways, first because the arresting officer, Constable Young, did not make a demand for the Applicant's breath "as soon as practicable", as is required by s. 254(3)(a) of the Criminal Code and secondly, because Constable Young did not have sufficient reasonable and probable grounds to arrest and make the demand of the Applicant. I will deal with each argument in turn.

(i) Whether Demand Made As Soon As Practicable

[10] For Constable Young's demand for a breath sample to be lawful it must comply with Section 254(3)(a) of the Criminal Code and be made "as soon as practicable" within the meaning of the Criminal Code. If it does not comply, and is therefore improper and unlawful, the making of the demand and the subsequent taking of breath samples from the Applicant constitute an unreasonable search and seizure and thereby violate his s. 8 protected right.

[11] The issue then to determine is whether the demand made by Constable Young was made "as soon as practicable" after he determined that there were reasonable and probable grounds to believe that the Applicant had committed an offence under s. 253 of the Criminal Code, as a result of the consumption of alcohol.

[12] Constable Young testified that he arrested the Applicant at 8:12 p.m. and that he made the breath demand at 8:27 p.m., just prior to leaving the roadside to attend at the police station. Between 8:12 p.m. and 8:27 p.m. he testified he searched Mr. Vaive, handcuffed him and placed him in the cruiser, he dispatched his location, which was paramount for reasons of officer's safety and he arranged for a tow truck to attend to remove Mr. Vaive's vehicle because he did not want to leave it on the Hwy 427 ramp. He then had to clarify his location again for officer's safety and for the attendance of the tow truck because there was some confusion as to which Hwy 427 ramp he was on. Following attending to these administrative duties, he read Mr. Vaive his rights to counsel at 8:20 p.m. When asked if he wanted to call a lawyer Mr. Vaive replied "yes but not right now". Constable Young then asked him if he had a lawyer and the Applicant said he did and that his number was in his phone. At 8:21 p.m. Constable Young said he read the Applicant the Caution. Following this, the Applicant complained about the handcuffs so Constable Young and Constable Lynn, who was at the scene, removed him from the cruiser to check on the handcuffs and then placed him back inside. Constable Young then got the Applicant's keys for the tow truck driver and then attended at his vehicle to remove his phone because it contained his lawyer's number. He then got in his cruiser and before leaving the scene at 8:27 p.m. he read the breath demand to the Applicant.

[13] When asked by the Respondent why he waited until this time to read the breath demand, Constable Young replied that the demand is usually the last thing he reads after rights to counsel and the caution and very possibly it skipped his mind until the last second when he was getting ready to leave the scene.

[14] On cross-examination, when asked why it took him from 8:21 p.m. when he read the caution to 8:27 p.m., to read the demand he replied that he had no "excuse" why it took that long, but then went on to say that it was possible it was delayed because adjusting the Applicant's handcuffs with Constable Lynn was more of a pressing matter. He was sure, however, that he read the demand before he left the scene because he cannot read the breath demand, which is pre-printed in his memo book, while driving, due to safety concerns. He has a note of reading the breath demand to him at this time.

[15] It was the Applicant's evidence that the breath demand was not read to him until they arrived at the police station, which was at 8:42 p.m.

[16] On the issue of when the breath demand was actually read to the Applicant, I accept the evidence of Constable Young that it was read at 8:27 p.m., prior to leaving the scene. This evidence is corroborated by the officer's notes to this effect. I also accept his independent recollection that the demand was read at this time.

[17] The Applicant, who has no notes about what happened at the scene, testified that this was the first time he was ever arrested or handcuffed and it was a very nerve-wracking experience for him.

[18] The protocol followed by Constable Young at the roadside, in contrast, is part of his everyday duties. I find he was quite candid with the Court when he acknowledged that it slipped his mind until the last second to read the breath demand. Further, I agree with the submission of the Respondent that although he could provide no "excuse" for the delay in reading the demand following the caution, he did provide an explanation. That explanation concerned what he was doing at the roadside between 8:21 p.m. and 8:27 p.m. This was not a situation where Constable Young was sitting idly by. He was, as he indicated, initially performing administrative duties involving advising dispatch of his location for reasons of officer's safety and arranging for the tow of the vehicle from the Hwy 427 ramp. Then after the caution was read he assisted the Applicant in two ways, first by addressing the physical discomfort caused by the handcuffs and secondly, by retrieving his phone from his vehicle because it contained the lawyer's phone number.

[19] Counsel on behalf of the Applicant submits that there was a lapse in protocol because Constable Young could provide no excuse for not reading the breath demand earlier, however, when his evidence is examined in its totality, it is clear that he was attending to a number of matters at this time which explains the delay.

[20] As recognized by the Ontario Court of Appeal in the case of R. v. Squires, the words "as soon as practicable" have been interpreted to mean "within a reasonably prompt time", and not "as soon as possible".

[21] Here, given the evidence I do accept from Constable Young as to what he had to attend to at the roadside, I do find that he provided the breath demand "within a reasonably prompt time" before leaving the roadside.

[22] At paragraph 27 of Squires the Court of Appeal described the officer's behaviour, at the scene in that case to be professional and humane where the officer was attending to medical concerns due to a serious motor vehicle accident.

[23] In the case at bar, I would similarly describe Constable Young's behaviour, in that he was attentive to the needs of the Applicant by assisting him with the discomfort caused by the handcuffs and retrieving his phone so he could contact his lawyer. Further, he was professional in that he was cognizant of officer's safety and the safety of the public by taking the time to clarify his location and secure the removal of the Applicant's vehicle from the ramp of a major highway at night.

[24] In the case at bar, fifteen minutes passed between the arrest of the Applicant and the reading of the breath demand. During that span of time Constable Young attended to a number of matters all of which were professionally required and some of which were in the best interests of the Applicant. This was a fluid investigation, similar to the one described by Justice Gordon in the case of R. v. Pap, a summary conviction appeal where he upheld the trial Judge's decision that the breath demand was made as soon as practicable.

[25] In that case Justice Gordon held as follows at paragraphs 72-75:

72 The time from arrest to reading the appellant his rights to counsel was 14 minutes. The reading of the rights to counsel, caution and breath demand were one continuous event. The 14 minutes that passed is not a substantial amount of time. A microscopic analysis of this short time period is not appropriate. As the trial judge indicated, the events occur with the context of a "fluid investigation".

73 Staff Sergeant Zehr was involved in a number of activities, including dealing with the appellant's house key and vehicle key, loosening the handcuffs, instructing the assisting officer and dealing with the radar detector and making notes. In the circumstances of this case, note making was of considerable importance.

74 Each activity engaged in required some time but not significant time. No doubt, the arresting officer did not have to do any of these items and could have simply made the breath demand and proceeded to the police station. Such, in my view, would not have been reasonable. We expect more of a police officer than simply to make an arrest.

75 Dealing with the keys and loosening of the handcuffs was a benefit to the Appellant, certainly humane acts by the officer. Instructing the assisting officer and dealing with the radar detector were necessary matters in securing the scene and the vehicle. Making notes, as stated previously, was likewise important.

[26] Accordingly, then on the evidence as I have found it, I conclude that the breath demand was made of the Applicant "as soon as practicable", within the meaning of the Criminal Code and, therefore, the s. 8 Charter Application brought on these grounds is hereby dismissed.

(ii) Reasonable and Probable Grounds

[27] The Applicant also submits that his s. 8 Charter rights were violated because Constable Young lacked the requisite reasonable and probable grounds to arrest him and issue the breath demand.

[28] It is well settled law as set out in R. v. Storrey, a decision of the Supreme Court of Canada, that for an arrest without warrant to be valid on the basis of reasonable and probable grounds, it is not enough that the officer subjectively believe that he had reasonable and probable grounds to make an arrest, but rather there must also be an objective basis for this belief. In other words, it must also be shown that a reasonable person standing in the shoes of the officer would have believed that reasonable and probable grounds existed to make an arrest.

[29] When considering the existence of reasonable and probable grounds it is also important to note that in formulating these grounds an officer does not have to establish proof of an offence beyond a reasonable doubt or even establish a prima facie case for conviction. All that is required is to establish that the reasonable and probable grounds at the time of the arrest in the mind of the officer are born subjectively and are objectively based (See R. v. Storrey (supra)).

[30] On this Application, the Applicant submits that, at most, Constable Young had a reasonable suspicion that the Applicant's ability to operate his motor vehicle was impaired by alcohol and that he lacked the necessary reasonable and probable grounds to arrest him for this offence. Constable Young, the Applicant asserts, should have, in the circumstances, administered a roadside screening device instead of arresting him.

[31] The Respondent submits that the arresting officer had the requisite reasonable and probable grounds to make the arrest based on the following factors which were present and in his mind at the time he formulated these grounds:

1. The 911 call reporting that a vehicle had mounted a curb in a parking lot and the driver of that vehicle had a hard time getting into that vehicle and discussion with the caller that the guy almost hit the building.

2. His observation of a vehicle matching the description set out in the 911 call.

3. That the vehicle was slow to pull over and made a jerky stop when pulled over by the arresting officer on the ramp on Hwy 427.

4. That the Applicant took a while to produce his wallet.

5. That the Applicant fumbled with his insurance documents and had a delayed reaction in producing his documents, having been asked three times to produce his insurance.

6. That the Applicant had a wet stain on the crotch area of his shorts approximately 6 inches in diameter.

7. That the Applicant did not directly look at him when he approached his vehicle.

8. That when the Applicant spoke, the officer could detect a very strong odour of alcohol from him.

9. That the Applicant admitted to the officer that he had consumed alcohol.

10. That his eyes seemed quite bloodshot and watery.

[32] It was Constable Young's evidence that based on all of this information, and his observations, he formed the reasonable and probable grounds to arrest the Applicant prior to the Applicant exiting his motor vehicle.

[33] When assessing the requirement of reasonable and probable grounds it is important for the Court to focus on what was in the officer's mind at the time of formulation of these grounds. As indicated, the test is not whether a prima facie for conviction for this offence has been made out at the time of formulation of these grounds.

[34] The focus of this inquiry was identified by Justice Durno speaking for the Ontario Court of Appeal in the case of R. v. Bush at paragraphs 36 and 37 of that Judgment where he held as follows:

36 Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s.254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit.

37 Between suspicion and proof beyond a reasonable doubt lies a reasonable and probable ground. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80', (emphasis added). Reasonable and probable grounds does not amount to proof beyond a reasonable doubt, or to a prima face case: see Censoni at paragraphs 31 and R. v. Shepherd (2009) S.C.C. 35 at para 23.

[35] As stated by Justice Durno at paragraph 46 of this Judgment, the reasonable and probable grounds standard in the context of a breath demand is not an onerous test. For example, as he commented, there is no need that the defendant be in a state of extreme intoxication only that objectively there were reasonable and probable grounds to believe that the suspect's ability to drive was even slightly impaired by the consumption of alcohol (at paragraph 47 and 48).

[36] The existence of reasonable and probable grounds will depend on the totality of circumstances presented to the officer at the time of the formulation of his belief.

[37] In assessing the formulation of that belief it is not appropriate for this Court to review the circumstances which formed the basis of that belief after the fact. There may be explanations provided, for example, after the fact that go to the factors taken into account by the officer at the time, but those explanations are improper to take into account at this juncture.

[38] On this point I agree with the following comments made by Durno J. in Bush at paragraph 55:

65 In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection".

[39] In the case at bar, keeping in mind, the nature of the test for the formulation of reasonable and probable grounds, and the need to focus on what was in the officer's mind at the time, I find, Constable Young had the requisite reasonable and probable grounds to arrest the Applicant and make the breath demand.

[40] When the factors he considered are examined I find the test for reasonable and probable grounds as set out in R. v. Storrey (supra) has been met. Constable Young was entitled to rely on the hearsay evidence derived from the 911 call and the civilian regarding the Applicant's driving. This information taken with the officer's observations at the scene was sufficient, I find, to amount to the requisite reasonable and probable grounds.

[41] The fact that there may be explanations at the end of the day for the factors Constable Young took into account when formulating these grounds, is of no substance when assessing what was in the officer's mind at the roadside.

[42] In the context then of making this determination, within the continuum of findings on drinking and driving prosecutions, as identified by Justice Durno, that is, between suspicion and proof beyond a reasonable doubt, I find that Constable Young had the requisite reasonable and probable grounds at the roadside to arrest the Applicant and issue the breath demand.

[43] Accordingly, the s. 8 Charter Application based on this ground is also dismissed.

B) Section 10(b) Violation

[44] The Applicant further alleges that his right as guaranteed by s. 10(b) of the Charter on arrest or detention to retain and instruct counsel without delay and to be informed of that right was violated.

[45] The Applicant is not arguing that he was denied the informational component of this right but rather that he was denied the implementational aspect of it, in that he was unable to effectively retain and instruct counsel without delay. Specifically, it is argued that because the lawyer contacted by police at the Applicant's request, following arrest, at the station was a civil lawyer not experienced in criminal law, the Applicant was deprived of the opportunity to meaningfully exercise his right to counsel.

[46] As indicated earlier in these Reasons, while at the roadside in response to his rights to counsel and being asked whether he wished to contact a lawyer Constable Young testified, that the Applicant advised him that he wished to call a lawyer, "but not just now", and that the lawyer's number was in his phone which the officer retrieved from his vehicle. It was the evidence of Constable Young that following up on that conversation, when the Applicant was again advised of his rights to counsel while being booked at the station he accessed his phone, for the purpose of obtaining this number for the officer. This is also seen on the booking video which is an Exhibit on this trial. Constable Young then called counsel, Mr. Trevor Whiffen, more than once, looked up his number and left a message. He waited 65 minutes until Mr. Whiffen could have an opportunity to speak to the Applicant.

[47] There is no dispute on the evidence that Constable Young contacted Mr. Whiffen at the request of the Applicant and that the Applicant and Mr. Whiffen then spoke over the phone. There is further no dispute that Mr. Whiffen is a lawyer in good standing with the Law Society of Upper Canada.

[48] In this context it is important to review the evidence of the Applicant. He testified that he has known Mr. Whiffen for 12 years and that he was his sports agent up until 4 years ago. He indicated that he wanted to speak to Mr. Whiffen that night as a friend and agent, because he knew he would not steer him wrong but not as a lawyer. He said that when they spoke for about 2 – 2 1/2 minutes, Mr. Whiffen indicated that he would try to contact criminal counsel for him because this was not his area of expertise and that he received no legal advice from Mr. Whiffen. He testified that after speaking with Mr. Whiffen he told Constable Young that Mr. Whiffen was still on the phone and wanted to talk to him because he wanted to find a criminal lawyer to talk to him. He never spoke to Mr. Whiffen again that night.

[49] Following the call with Mr. Whiffen, the Applicant testified that he attended in the breath room, answered the questions of the breath technician, Constable Kushnir and provided breath samples as requested by him.

[50] He acknowledged that he never asked Constable Kushnir why he should do the tests as he was waiting for criminal counsel to contact the station. The Applicant also testified that although he wanted to speak with criminal counsel, he never told Constable Kushnir this, nor did he tell Constable Kushnir that he wished to speak to Mr. Whiffen again. Further, the Applicant did not give evidence that if he had been given advice by criminal counsel he would not have provided statements to Constable Kushnir or provided the breath samples.

[51] Mr. Whiffen testified that he spoke with the Applicant and that he then inquired of the arresting officer about procedure in terms of releasing the Applicant. He testified that criminal law was not his area of expertise and that he told the Applicant that he would attempt to find criminal counsel. Mr. Whiffen testified that he made unsuccessful attempts to contact two counsel known to him to have practised criminal law.

[52] It is clear, however, on the evidence, I find, that Mr. Whiffen did not call back with a plan to have the Applicant get in touch with a criminal counsel that night. When he did call back he spoke to Constable Young about the circumstances under which the Applicant would be released from the station but did not advise the officer that a specific criminal counsel would be calling or that the testing should be delayed.

[53] Mr. Whiffen testified that he did not call back to the station to say he had a criminal lawyer lined up to speak to the Applicant because he was not able to find one.

[54] He testified that during the initial call he spoke with Constable Young for a couple of minutes, the Applicant for a couple of minutes and then Constable Young again for a couple of minutes. He never told Constable Young initially that he would not speak to the Applicant and testified that in fact, he wanted to speak to him as a friend and as a client. He acknowledged in his evidence that although he does not practise criminal law he is aware of an accused's right to silence. Further, he testified that when speaking with the Applicant he did not give him the names of any criminal counsel.

[55] Mr. Whiffen testified that he called Constable Young back shortly after the initial call saying he was looking for criminal counsel but was advised that they were going ahead with the test. When he called back again the Applicant had already blown once. He did not call back and ask to speak to the Applicant again.

[56] Mr. Whiffen testified that the Applicant referred to him as his agent not his lawyer.

[57] Constable Young testified that the Applicant, although advised of his right to duty counsel, never asked to speak with duty counsel. He testified that he would have allowed the Applicant to speak to duty counsel if he had requested to do so.

[58] On the evidence, it is clear that the Applicant never complained about his call with Mr. Whiffen or told the officers that he was waiting for his lawyer or any other lawyer to call back.

[59] Further, although the Applicant testified that he told the arresting officer that Mr. Whiffen was going to get a criminal lawyer for him to talk to, it was not clear, I find, whether he meant that night or at some other time.

[60] Constable Kushnir acknowledged that he did not reiterate the rights to counsel in the breath room because they were read and understood both at the scene and during the booking. According to this witness, it is his job to caution an accused but not to give rights to counsel.

[61] On the evidence on this issue I find as follows:

1. The Applicant gave the police Mr. Whiffen's number in response to a question about wishing to contact a lawyer following his rights to counsel at the scene.

2. Contact was then made.

3. Mr. Whiffen did not call back with the name of a criminal lawyer and no other lawyer called back, nor was there a plan put in place to facilitate contact with a criminal lawyer.

4. That the Applicant did not complain to the police about the advice given by Mr. Whiffen, nor did he request to speak to other counsel.

5. That the Applicant did not tell the breath technician to hold off on the tests until Mr. Whiffen or another lawyer called back.

6. That the Applicant knew of the availability of duty counsel and did not request contact with duty counsel, acknowledging that it was not his preference to contact duty counsel.

[62] To summarize, it is the position of the Applicant that because Mr. Whiffen had minimal criminal law experience, the Applicant was deprived of the ability to exercise his right to counsel in a meaningful way. The arresting officer, it is argued, should have held off on doing the test until criminal counsel could be contacted. Further, it is argued that Constable Kushnir should have provided additional rights to counsel because the Applicant would have responded by saying that he was waiting for Mr. Whiffen to call back with criminal counsel.

[63] Essentially, what is being submitted by the Applicant is that he was deprived of his right to counsel because the lawyer contacted, Mr. Whiffen, was not experienced in criminal law.

[64] On this issue the Supreme Court of Canada has very recently given a definitive pronouncement in the case of R. v. Willier, where Justices McLachlin and Charron, speaking for the majority, held as follows at paragraph 41:

41 While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear. As this Court recognized in R. v. G.D.B., there is a "wide range of reasonable professional assistance", and as such what is considered reasonable, sufficient, or adequate advice is ill defined and highly variable.

[65] Accordingly, there is no requirement on behalf of the police to monitor the quality of advice given. Counsel for the Applicant submits that because Mr. Whiffen identified himself as a civil counsel, Constable Young should have been wary or held off until criminal counsel could be contacted. That is not the state of the law.

[66] Further, given the confidential nature of solicitor-client communication it is incumbent on the accused to exercise diligence in asserting his right to counsel and communicate to the officer his dissatisfaction or wish to contact other counsel. That was not done in this case. The Applicant did not raise this issue with Constable Kushnir or Constable Young. He did not, for example, request that the testing be delayed until Mr. Whiffen or another lawyer called back. He did not complain about his call with Mr. Whiffen nor did he request that he call Mr. Whiffen again. Although Mr. Whiffen may have been trying to reach a criminal lawyer, it was up the Applicant to communicate to the officers that he wished to speak to another lawyer at that time and that he was dissatisfied with his contact with Mr. Whiffen.

[67] It was the Applicant's evidence that following his call with Mr. Whiffen, he co-operated fully with the breath testing and answered the questions put to him. He never raised the issue of the need to contact Mr. Whiffen, criminal counsel or duty counsel with this or any other officer.

[68] Further, in assessing the degree of diligence exercised by the Applicant, it is important to consider the relationship between Constable Kushnir and the Applicant while they were in the breath room. This is seen on the breath room video. Clearly, as this Court ruled on the voluntariness voir dire, the Applicant, although tired, was co-operative and comfortable with the officer. He did not appear intimidated or meek or fearful, feelings that may have inhibited him from raising the issue of counsel with Constable Kushnir.

[69] Instead, he engaged in conversation with the officer and complied with all of his requests regarding the taking of breath samples. His discomfort with this procedure or his need to consult counsel before the testing proceeded was neither expressly nor impliedly communicated to Constable Kushnir.

[70] Section 10(b) rights are not absolute and once an accused invokes the right he must be reasonably diligent in exercising it. If reasonable diligence is not exercised the police are able to continue their investigation and demand a breath sample. (See: R. v. Tremblay and R. v. Smith)

[71] On the evidence in this case then, I find, that there has been no breach of the Applicant's s. 10(b) rights as the police did everything to put him in touch with the lawyer he requested and contact was made. There is no requirement on the part of the police to inquire as to competency or nature of advice given as a result of that contact.

[72] I further find that even if Mr. Whiffen was, in good faith, seeking criminal counsel, there was insufficient diligence on the part of the Applicant in communicating his need to seek additional legal advice to the police before any breath testing took place or statements were given to Constable Kushnir.

[73] Accordingly, I find that the Applicant's s. 10(b) rights were not violated in this case and this Application will also be dismissed.

[74] As all of the Applicant's Charter Applications have been dismissed I find there is no need to address the applicability of s. 24(2) of the Charter.

Trial

[75] I turn now to the substantive defences raised on the trial proper on the two counts before the Court.

A) Over 80 Count

[76] In this case, the breath samples were taken from the Defendant outside the two hour time limit. As a result, in proving its case the Crown then cannot rely on either the presumption of accuracy or the presumption of identity as set out in s. 258(1) of the Criminal Code. However, the Crown can prove its case by adducing viva voce evidence. The viva voce evidence adduced in this case comes from Constable Kushnir who obtained the breath samples from the Defendant together with the testimony of Mr. Hinman, the expert toxicologist from the Centre for Forensic Science who extrapolated those test results back to the time of driving. Mr. Hinman's qualifications were conceded and he was permitted to provide expert evidence on the issue of pharmacology and toxicology of alcohol and the theory and operation of the Intoxilyzer 5000C.

[77] It was Constable Kushnir's evidence that the Intoxilyzer 5000C was working properly when the Defendant provided two breath samples which resulted in readings of 180 milligrams of alcohol in 100 millilitres of blood at 10:39 p.m. and 172 milligrams of alcohol in 100 millilitres of blood at 11:03 p.m. Mr. Hinman then extrapolated back and provided the Court with his expert opinion that at the time of driving, between 8:05 and 8:10 p.m., the Defendant's blood alcohol concentration would have been between 175 and 225 milligrams of alcohol in 100 millilitres of blood. This opinion was based on the following four factors:

1. That the Defendant's elimination rate was within the normal range of 10 - 20 milligrams of alcohol in 100 millilitres of blood per hour.

2. That a plateau for a period of up to 2 hours was allowed for.

3. That there was no consumption of a large quantity of alcohol shortly (within 15 minutes) before the driving.

4. That no alcohol was consumed after the driving and before the testing.

[78] Mr. Hinman also testified that he reviewed the test cards generated by the Intoxilyzer 5000C, operated by Constable Kushnir and everything appeared to be in order. He also viewed the video of the proceedings in the breath room and nothing in that video led him to believe that Constable Kushnir was operating the machine incorrectly.

[79] It is conceded by the Crown that because the Crown cannot rely on the statutory scheme and its presumptions as set out in s. 258(1), as the readings were obtained beyond the two hour window, the defence is entitled to adduce evidence in order to raise a reasonable doubt as to the accuracy of these blood alcohol concentration results. This has become known as the Carter defence named after the case of R. v. Carter, where the Ontario Court of Appeal held as follows:

"Clearly, since the breathalyzer instrument is intended to measure the quantity of alcohol in the person being tested, any evidence as to how much alcohol the person tested had in fact consumed is relevant evidence and if accepted can raise a doubt as to the accuracy of the breathalyzer reading."

[80] In the case at bar, the defence has adduced evidence from the Defendant and Mr. William Derlago regarding the Defendant's drinking pattern prior to his arrest. The defence invites the Court to accept this evidence and to then consider and apply the evidence adduced from Mr. Hinman on cross-examination, in which he indicated that based on that drinking pattern, the Defendant's blood alcohol concentration would have been between 0 – 15 milligrams of alcohol in 100 millilitres of blood at 8:00 p.m. (the time of driving) on the night of his arrest.

[81] This evidence, taken together, the defence submits, raises a reasonable doubt as to the accuracy of the blood alcohol concentration results received by the police in this case and, given the existence of this reasonable doubt, the Defendant must be acquitted of this charge.

[82] In assessing the totality of evidence on this charge, this Court is entitled to take into account the readings obtained by the police in this case, however, the defence is not obliged to show an error in the breath testing procedure or operation or functioning of the Intoxilyzer 5000C (See: R. v. Gilbert).

[83] I find that the comments made by Justice Gillese in the case of R. v. Kernighan, where she addressed the situation in which the defence challenges the presumption of identity, apply to this case, even though here no presumptions were relied upon by the Crown. This is so, I find, because here as in a presumption case, the defence points to evidence, which if accepted, would raise a reasonable doubt as to the accuracy of the readings.

[84] Justice Gillesse commented at paragraph 20 that breathalyzer readings:

"…are part of the body of evidence presented at trial and thus part of what the trial Judge must consider in determining whether the defence evidence is capable of raising a reasonable doubt."

[85] I take from these comments that this Court is not to take these results as being conclusive of the issue, but rather just as one part of the totality of evidence that this Court must consider to determine whether a reasonable doubt has been raised by the defence.

[86] It is important to note that the foundation of the reasonable doubt the defence submits they have raised is the evidence adduced from the expert witness Mr. Hinman on cross-examination. That evidence in turn was founded on the hypothetical put to Mr. Hinman in which the drinking pattern attested to by the Defendant and Mr. Derlago was accepted as a given fact. Accordingly, for there to be any weight attached to Mr. Hinman's evidence and for it to raise a reasonable doubt, this Court must accept the evidence which provides the basis for his opinion, namely, the testimony of the Defendant and Mr. Derlago on the issue of the Defendant's consumption of alcohol prior to his arrest.

[87] Mr. Hinman testified that his calculation of a blood alcohol concentration of between 0 - 15 milligrams of alcohol in 100 millilitres of blood was based on a hypothetical scenario of a male, aged 50, weighing 218 pounds with a height of 6' 1" consuming 6 cans (335 ml.) of light beer with a 4% alcohol content, beginning at noon and finishing at 5:00 p.m., with the consumption evenly distributed over that 5 hour time span. He testified that if the drinking ended at 5:30 p.m. it would not change his conclusion.

[88] This expert witness further testified that his opinion was based on the assumption that at the commencement of drinking at noon, the male had a zero blood alcohol concentration.

[89] He was then asked by the Crown whether the blood alcohol concentration at noon would be affected if the male was up drinking alcohol to 4:30 a.m. the night before. He replied that it would depend on the blood alcohol concentration reached in the earlier session, but it was possible that if a large quantity of alcohol was consumed the night before, that the blood alcohol concentration would be over zero at noon the next day.

[90] Accordingly, the evidence from the Defendant and Mr. Derlago concerning the Defendant's consumption of alcohol both on the date of his arrest and the day before his arrest are crucial to a determination of this issue and whether a reasonable doubt has been raised. That evidence will be reviewed now.

[91] Mr. Vaive testified that on the day before his arrest he travelled to Gravenhurst for 2 days of golf with friends and former hockey players. He drove up to the golf taking with him Derlago and Dennis Maruk.

[92] He indicated that on the first day of golf he consumed 4 cans of Coors Light beer over the course of his round from 1:00 p.m. or 2:00 p.m. until about 5:10 – 5:15 p.m. He was playing in a foursome and each golfer bought one round of beers from the golf cart service. Following golf, he said he consumed 1 glass of wine at dinner and then consumed 3 cans of Coors Light beer between about 10:30 p.m. and 12:30 a.m. in a hotel room while playing poker with the other golfers.

[93] He recalled that there was only one case of 24 cans of beer in the hotel room and each of the men consumed 3 cans. As he was a good card player, he said he remained in the room as one of the last card players, until about 5:00 or 5:30 a.m. but he did not continue to drink after 12:30 a.m. He then went to his room and slept, waking up around 9:45 a.m. the next day. He testified that he did not get much sleep because he did not have his CPAP machine, a device he uses to provide additional oxygen as he has sleep apnea.

[94] On the second day of golf, he testified that he consumed his first alcoholic beverage of the day at lunch around noon when he drank a can of Coors Light beer.

[95] During the course of his golf round he then consumed 4 cans of Coors Light beer spread evenly throughout the round, starting shortly after noon and finishing his last beer on the course around 4:00 – 4:15 p.m. He recalled that the round ended at approximately 5:10 – 5:15 p.m. and that he consumed 1 more can of Coors Light beer at the clubhouse when they were adding up their scores. In total then, he drank 6 cans of Coors Light beer over the span of approximately 5 hours. He then left the course and travelled southbound, ultimately being detained by Constable Young.

[96] Mr. Vaive was cross-examined at great length by Mr. Fuller, on behalf of the Crown, on the issue of his alcohol consumption over the course of these two days and on many other matters.

[97] I have reviewed the transcripts of this evidence thoroughly and I observed Mr. Vaive carefully as he gave his evidence.

[98] On the issue of Mr. Vaive's credibility as a witness, I take into account that Mr. Vaive has no criminal record or antecedents. In terms of his background, he played professional hockey at an elite level for a number of years and following retirement has been steadily employed. As a former professional hockey player, he has given back to the community by participating in various charitable golf and hockey tournaments, including events involving the Special Olympics and police forces across Ontario.

[99] He testified that at the time of his arrest he was 50 years old, weighing 218 pounds and 6' 1" tall.

[100] I observed him carefully as he testified before this Court and noted his demeanour. I found that he gave his evidence in a candid and straight forward manner. For example, he, without hesitation, divulged aspects of his medical history and personal life that could be described as humiliating and embarrassing, yet were nonetheless a part of his life experience and had relevance to the events leading to his arrest.

[101] He endured a lengthy and very skilful cross-examination by Mr. Fuller, an experienced and highly competent Crown Attorney. Throughout this cross-examination, during which I find he was neither combative nor evasive, he maintained his version of the events, specifically in terms of the amount of alcohol he consumed over that 2 day period and on other matters as well.

[102] On the issue of consumption of alcohol, Mr. Vaive was cross-examined at length, for example, as to why he would tell Constable Kushnir that he was up late drinking and playing cards the night before when he was just playing cards late into the night, as he had stopped drinking at 12:30 a.m. Throughout this line of questioning, I found he maintained his position and was not shaken that what he was telling the officer was that he was up late playing cards and not that he was up late drinking all night.

[103] Similarly, despite persistent questioning, he maintained that when he told Constable Kushnir that he was hung-over he meant that he felt like he was hung-over because of the 2 days of golf and lack of sleep. He was not shaken on this, I find, despite skilful cross-examination.

[104] The Crown recounted a number of inconsistencies between Mr. Vaive's evidence in examination in chief and cross-examination. I have reviewed these matters and have concluded that the differences in his evidence were minor in nature and do not have the effect of shaking his testimony or undermining his credibility.

[105] An example of a minor inconsistency was when he said in examination in chief that the tee-time the first day was 1:00 p.m. and then on cross-examination he said it was at 2:00 p.m. Similarly, when he testified in examination in chief that he stopped drinking beer in the hotel room between 12:30 – 1:00 a.m., whereas in cross-examination he recalled that he checked his watch and was sure that it was 12:30 a.m. when he stopped drinking, I find there is no significant inconsistency.

[106] Further, he was cross-examined as to why he told Constable Kushnir that he only consumed 1 beer when in fact he had consumed 6 beers prior to his arrest. The Defendant testified that he was nervous and tired and the answer just came out. He explained that he thought it would be something a lot of people would say under the circumstances. Later he acknowledged that he intentionally said this to Constable Kushnir and it was not a mistake. In examining his evidence on this issue, I find, that he adequately explained his reasons for not being forthcoming with the officer. It is important to note, that when he spoke to Constable Kushnir at the station he was not under oath as he was when he testified before the Court. Accordingly, I do not find that this area of the evidence undermines Mr. Vaive's credibility.

[107] Also, I do not find that the inconsistencies noted by the Crown between Mr. Vaive's evidence and the evidence of Mr. Derlago were significant in nature. An example of what can be termed a minor inconsistency is the difference in their evidence about the nature of their golf games on the day of arrest. The Defendant testified he golfed poorly on the day of his arrest because he was so tired, while Mr. Derlago said that it was a good day for him, shooting an 83 and that Mr. Vaive golfed even better than him and did not golf poorly. In his evidence Mr. Derlago acknowledged that Mr. Vaive is a better golfer than him. Accordingly, it is not unreasonable then to infer that perhaps to Mr. Derlago, the Defendant did not have a poor round but to the Defendant he did.

[108] Similarly, the fact that Mr. Derlago recalled ordering a glass of wine at dinner on the first night, while Mr. Vaive said he had a glass of wine from a bottle on the table is not significant. I find both witnesses indicated that they each had one glass of wine at dinner that night.

[109] In considering the evidence of Mr. Derlago, I find that his evidence had the effect of enhancing Mr. Vaive's credibility. That is so because Mr. Derlago corroborated Mr. Vaive's evidence in terms of what alcohol the Defendant consumed over the course of the 2 days.

[110] Mr. Derlago, played professional hockey with the Defendant and has known him as a friend for 25 years. He has no criminal record.

[111] I found Mr. Derlago, as well, to be an honest and straightforward witness. Mr. Fuller pointed out that Mr. Derlago comes to this case from a particular angle, given his close association and friendship with Mr. Vaive. While it is true that they are good friends and former teammates, the fact of the matter is that Mr. Derlago was the best person to give this Court information about what the Defendant consumed over the course of these 2 days. He was with the Defendant for the drive up and back from Gravenhurst, he was in the Defendant's golf foursome on both days, he was at dinner with him on the first night and he was in the hotel room for the poker game. Oftentimes, in these types of cases, the witnesses who are called are not strangers to the accused because the reason they are in a position to give evidence is because, they were in a social situation with an accused person, and are for that reason, more than likely to be friends. So the fact that Mr. Derlago is friends with the Defendant, I find does not undermine the truthfulness of his evidence.

[112] Mr. Derlago corroborated Mr. Vaive's evidence as to the amount he had to drink over the 2 day period, the size of the drinks, the brand of beer and the time period over which the alcohol was consumed. The only difference in their evidence was that Mr. Derlago was unaware that the Defendant had consumed a beer with lunch before heading off to start the golf round on the second day. This inconsistency is plausible given that they were not together every minute of the day, and there was no evidence led that they had lunch together. Further, Mr. Hinman's opinion was based on the consumption of 6 beers as attested to by the Defendant, not 5, over the course of 5 hours, so that omission of 1 beer by Mr. Derlago is not significant, I find.

[113] Mr. Fuller pointed out that Mr. Derlago, who was aware of the Defendant's need for a bottle in the car, do to a urination problem, did not see him use the bottle in the truck on the way home, nor did he see the stain on the Defendant's shorts when he dropped him off at the parking lot. The Crown submits that this aspect of the evidence should cause the Court to doubt the reliability of his testimony.

[114] On the issue of the stained shorts, Mr. Derlago testified that the Defendant appeared fine in the parking lot and his clothes were in good order. It is important to consider that during this time however, Mr. Derlago and Mr. Maruk were preoccupied with unloading their clubs from the Defendant's truck and transferring them to Mr. Derlago's vehicle and it is possible and that he did not look closely at the Defendant's shorts.

[115] On the issue of the use of the bottle, Mr. Derlago testified that he was in the back seat of the Defendant's truck on the way home, so it is reasonable to infer that he may not have been able to see the Defendant using the bottle during the trip home.

[116] Similarly, I do find there is a significant inconsistency, as argued by the Crown, because the Defendant testified that they stopped three times on the way home and Mr. Derlago said they stopped twice.

[117] That was the defence evidence on the issue of alcohol consumption. It came from two witnesses, neither of whom have criminal records, who remained unshaken in their evidence, despite rigorous cross-examination and who corroborated each other's evidence on this issue.

[118] I found both witnesses to be credible, honest and straightforward in their evidence, and for the reasons given above, I accept their evidence as to how much alcohol the Defendant consumed over this two day period.

[119] The Crown submits that the Intoxilyzer results, and specifically, how far apart they were from the extrapolated results adduced by the defence, should cause this Court to question the truthfulness of these two witnesses and cause the Court to reject their evidence and find that no reasonable doubt has been raised.

[120] These results were adduced as part of the totality of evidence in this case, but that is just one part of the evidence. The Crown submits that the defence did not even cross-examine Constable Kushnir on the workings of the machine that night. As indicated earlier in these Reasons, there is no obligation in law on the defence in the circumstances of this case, to question the operation of this machine.

[121] The fact remains that these two defence witnesses have come forward to testify about the amount of alcohol consumed and I accept their evidence and I can find no reason to reject their evidence. The breath readings in this case do not cause me to find that they are not being truthful or that I should not accept their evidence.

[122] Accordingly, having accepted the defence evidence, as to alcohol consumption by the Defendant, which forms the basis of Mr. Hinman's opinion adduced on cross-examination, I find his opinion that the Defendant's blood alcohol concentration at the time of driving would have been below the permissible legal limit raises a reasonable doubt regarding the accuracy of the breath readings obtained by the police in this case. Therefore, having concluded that the Crown has not met its onus and proved this charge beyond a reasonable doubt, Mr. Vaive will be found not guilty of the Over 80 count.

B) Impaired Operation Count

[123] On this charge the Crown must, on the totality of the evidence, prove beyond a reasonable doubt that the ability of the Defendant to operate a motor vehicle was impaired, whether slightly or not, to any degree by alcohol.

[124] A good summary of the state of the law in this area is found in the case of R. v. Andrews. In that case, the Court found that the case of R. v. Stellato does not stand for the proposition that a person who has anything to drink and then drives a motor vehicle is guilty of this offence. Instead, the onus is on the Crown to prove any degree of impairment by alcohol of the ability to operate a motor vehicle, whether slight or great. However, as the Court noted in Andrews, the proof beyond a reasonable doubt must not be as to whether the accused is impaired to a slight degree, but rather, whether the accused's ability to operate a motor vehicle is impaired to a slight degree. In other words, proof of impairment by alcohol is not sufficient. This impairment must be related to the ability to operate a motor vehicle.

[125] I agree with the interpretation of these two cases expressed in the case of R. v. Schiefner at paragraph 10 where it was noted:

"The caution I take from the above cited authorities (Stellato, Andrews) is that the Crown must, on the totality of the evidence, prove beyond a reasonable doubt, that the 'ability' of the accused to operate a motor vehicle is impaired 'to any degree' by alcohol. Equivocal evidence of impairment, slight or otherwise, will not suffice to satisfy this burden. I interpret 'equivocal', in the Webster's Dictionary sense to mean 'subject to two or more interpretations' and 'uncertain'"

[126] Accordingly, in a case where there is equivocal evidence or two different explanations provided for observations that may go to the issue of impairment, it may be quite difficult for the Crown to meet its onus of proof beyond a reasonable doubt.

[127] This type of analysis was applied by the Ontario Superior Court on the summary conviction appeal in the case of R. v. Brinton. In that case, the Court held that given that four of the five grounds upon which the officer based his opinion of impairment were equivocal, in the sense of being reasonably attributed to other causes, then the evidence as a whole was not reasonably capable of supporting the trial Judge's conclusion that impairment, of ability to drive even to the slightest degree, had been proved beyond a reasonable doubt.

[128] In the case at bar, the defence submits that it has adduced evidence from which one could conclude that the observations relied upon by the Crown to support a finding of impairment, of one's ability to operate a motor vehicle, could reasonably be attributed to other causes.

[129] I will categorize these observations into two categories, first the observations of the Defendant's driving and secondly the observations of his physical condition.

i) Observations of Driving

[130] Beginning with the driving, the Crown relies on the evidence of Mr. Bernardo the civilian who witnessed the Defendant's driving in the parking lot of the plaza located at Highway # 7 and Pine Valley Drive. Mr. Bernardo also made physical observations of the Defendant. Both types of observations are relevant to this count.

[131] Mr. Bernardo testified that the Defendant drove his truck up on a curb and narrowly missed hitting the end cap of the plaza by 2 or 3 inches.

[132] In terms of Mr. Bernardo's testimony, both with respect to the driving and physical observations of the Defendant, I make the following comments. Mr. Bernardo came forward as a concerned citizen and called 911 given his observations in the parking lot and the conclusions he reached in his own mind concerning these observations.

[133] When he appeared as a witness before this Court I found him to be credible and found that he gave his evidence in a straightforward manner and was doing his best to recount his observations.

[134] Mr. Bernardo's evidence as to the Defendant's movements in the parking lot, of course are different from the evidence of the Defendant.

[135] In this context of assessing these differing versions it is important to note that the law in Canada as set out by the Supreme Court of Canada is clear that it is not up to the trier of fact to decide which version should be preferred. Instead as in any criminal case, the onus remains with the Crown to prove its case beyond a reasonable doubt. As stated by Justice Cory, speaking for the Supreme Court of Canada, in the case of R. v. W.D., where credibility is in issue when dealing with competing versions of the evidence in a criminal case the onus remains with the Crown and if the defence evidence adduced is accepted, or raises a reasonable doubt, then the Defendant should be given the benefit of that reasonable doubt.

[136] As I have indicated, in addition to finding Mr. Bernardo to be a credible witness, I also found the Defendant to be a credible witness. Accordingly, in looking at this aspect of the evidence, it is important to keep in mind the Supreme Court of Canada's direction in R. v. W.D. (supra) and to be mindful of the fact that where there are conflicting versions and the defence evidence is either accepted or raises a reasonable doubt, then that finding must be considered at the end of the day in determining whether the Crown has proved this count beyond a reasonable doubt.

[137] It is important to note that Mr. Bernardo only saw the Defendant driving for approximately 30 seconds and made no observations of any erratic driving on the part of the Defendant once he entered the roadway from the parking lot.

[138] It was the Defendant's evidence that he did not drive close to the building, however, he admitted to driving over the curb. He explained that his truck is large and on several occasions he has driven over curbs depending on how tight the exit is. He recalled that the exit to this parking lot was tricky in that it was very narrow and he was driving a large truck. He explained that the street he was entering onto, when he exited the parking lot, Pine Valley Drive, had three narrow lanes and so when turning he had to get way over to the right, causing him to go over the curb when turning right.

[139] The Defendant testified that at the time of this driving he felt his ability to drive was fine.

[140] This evidence concerning the Defendant's ability to drive was corroborated by Mr. Derlago who travelled with the Defendant that day on the drive down from Gravenhurst to this parking lot. He testified that on this two hour drive the Defendant had no problems driving and that if he had thought that the Defendant's ability to drive was impaired, by alcohol, he would not have let the Defendant drive home.

[141] The other driving evidence relied on by the Crown was Constable Young's evidence that when he signalled for the Defendant to pull over he did so in a fashion that was slower than normal and that when he stopped his truck he did so with a jerky motion.

[142] The Defendant testified that he was slow to pull over because he was stopping on the ramp of a highway and wanted to stop in the safest spot where it was flatter. There was evidence that the Defendant was wearing Croc flip flops at the time, and Constable Young acknowledged in cross-examination that braking with flip flops on could make the stop jerky.

[143] That was the extent of the driving evidence relied upon in this case. There was no abnormal or erratic driving noted by Constable Young, for example, when he observed the Defendant on the highway prior to the stop. The driving evidence then consisted of the driving in the parking lot and the way in which the Defendant stopped his truck when he was pulled over by Constable Young.

ii) Observations of Physical Condition

[144] The next category of evidence relied upon by the Crown are the observations of the Defendant's physical state.

[145] Mr. Bernardo testified that while in the parking lot the Defendant was stumbling, was leaning against his truck, and had to be assisted. He also observed that the Defendant had a difficult time getting into his vehicle.

[146] The Defendant denied stumbling, but acknowledged that at this time he was extremely tired and was quite sore having emerged from his truck following a two hour drive and two days of playing golf.

[147] The Defendant who played many years of professional hockey testified that he has a very bad hip and knee problem, as a result of that hockey, and that golfing over the course of two days made these problems worse. He explained that he was experiencing pain all the way down his right leg to his right foot and this condition had been ongoing for about 6 months at the time of this occurrence. He recalled specifically that his hip was very sore that particular day, made worse by the golfing and the two hour drive. He remembered that while driving he had to shift in his seat to relieve the pain.

[148] Mr. Whiffen, who I found to be a credible witness, corroborated this evidence. I accept Mr. Whiffen's evidence that the Defendant suffers from many aches and pains due to the trauma on his body of so many years in professional hockey. Mr. Whiffen noted in fact that the Defendant had to retire somewhat early due to these injuries. He testified that on one occasion after seeing the Defendant, after he had played a round of golf, the Defendant was limping. Mr. Derlago similarly corroborated this aspect of the Defendant's evidence and I accept Mr. Derlago's evidence on this point.

[149] The Crown also relies on the observations of the Defendant's physical state made by Constable Young. He testified that the Defendant did not look directly at him when he approached his window, and that it took a while to produce his wallet, that he fumbled with his insurance documents and the officer had to ask him three times for his insurance slip.

[150] By way of explanation, the Defendant testified that when he was stopped by the officer he still had his seatbelt on and the truck was parked on a slant, on the ramp, and he had difficulty reaching into his back pocket for his licence and difficulty leaning over to his glove box to retrieve the insurance slips. He testified that he had kept all of his insurance slips, even the expired ones and ultimately produced five of them for the officer. He also indicated that he was very nervous and that this was a nerve wracking experience for him.

[151] The officer noted that the Defendant's eyes were bloodshot and watery and that he had a very strong odour of alcohol on his breath.

[152] The Defendant testified that he was extremely tired as he had played two days of golf and had been up the night before playing cards until about 5:00 a.m., waking up shortly after 9:00 a.m. Further, the Defendant testified that he normally uses a CPAP machine to sleep as he has sleep apnea and he was not using it during his two day golf trip. Without the use of the machine, he indicated he gets very tired. This evidence about the use of this machine was corroborated by Mr. Whiffen and Mr. Derlago who have both travelled and roomed with the Defendant in the past and have observed him to use this machine.

[153] This evidence of tiredness, therefore, could reasonably explain the state of his eyes as observed by the officer.

[154] The Defendant admitted to drinking 6 beers on the date he was pulled over and this would explain the odour, but it is common ground, however, that the odour of alcohol does not necessarily mean that a person is impaired.

[155] The Crown also relies on the evidence of the wet stain on the Defendant's crotch as evidence of impairment by alcohol.

[156] On this issue, the Defendant testified, quite candidly, about the bladder problem he has had since he was 6 years old causing him to urinate more than a normal person and on an ongoing basis throughout the day, regardless of what he drinks or what he is doing. For this reason, he carries a Gatorade bottle with him because he cannot control the urination. He testified that on this night the Gatorade bottle was full and he wet himself on the way home from Gravenhurst. Evidence was adduced that his doctor, Doctor Sheppard, is aware of his prostate problem and is following this issue with blood work.

[157] This evidence was also corroborated by Mr. Whiffen and Mr. Derlago. Mr. Whiffen testified that he has travelled with the Defendant a fair amount of times over the years and is aware of this problem, and the fact, that he keeps a bottle in the car in the event he needs it in a hurry. Similarly, Mr. Derlago testified that he was aware of this problem and the fact that the Defendant uses a Gatorade bottle in case of an emergency. The defence submits therefore, that this stain was due to the Defendant's bladder problem and was not caused because he was impaired by alcohol.

[158] Finally, the Crown relied on the evidence of Constable Young that he had to guide the Defendant at the scene to prevent him from swaying into a live lane of traffic on the way to the cruiser. The officer acknowledged that they were walking on a slightly downward grade but that the pavement of good.

[159] The Defendant denied swaying at the scene but acknowledged having some trouble with his footing in that he was wearing flip flops and the cement on the ramp was corrugated. He recalled that Constable Young was walking beside him and may have had his hands slightly on his arm to direct him as to which way to go, but that he was not pulling him back to prevent him from swaying into the lane.

[160] When assessing the differences in the evidence on this point in terms of whether the Defendant was swaying at the roadside it is important to consider the video evidence depicting the Defendant at the station.

[161] This videotape provides the best evidence, I find, of the Defendant's physical demeanour that night as his actions are clearly visible and it speaks for itself. In that video, the Defendant, at no time, whether in the booking area or in the breath room, is observed to be stumbling, or swaying, or off balance. He certainly appears to be tired but he is otherwise co-operative, compliant and his physical movements appear normal.

[162] What is significant about this area of the evidence is that Constable Young was specifically asked to compare the Defendant's physical demeanour as observed on this video to his observations of the Defendant at the roadside. His answer was that the physical demeanour noted on the video was the same as it appeared at the roadside.

[163] This evidence is important for two reasons, first it tends to corroborate the Defendant's evidence that he was not swaying at the scene, nor even stumbling, as observed by Mr. Bernardo a few minutes earlier, and secondly, it tends to undermine the reliability of the arresting officer's observations of the Defendant at the roadside. On this issue, reference may be made to the case of R. v. Reed, where differences between the officer's testimony and the video record regarding the accused's physical condition caused the trial Judge to have grave concerns about the officer's evidence and to reject his evidence regarding signs of impairment not seen on the video.

[164] Finally, on the issue of impairment the Crown relies on the evidence of Constable Kushnir regarding his observations of the Defendant in the breath room. Once again, the video is the best evidence of the Defendant's physical demeanour at that time. Constable Kushnir concludes that the effects of alcohol on the Defendant appear to be obvious, yet a viewing of the video, shows the Defendant to be tired but compliant and cognizant of what is required of him regarding the testing. The Defendant responds appropriately to the questions and directions of Constable Kushnir and explains that he is pretty tired. He even apologizes for not being nice because he is 'really pissed off'.

[165] Constable Kushnir noted that the Defendant's mouth was open longer than normal when he was blowing. However, he acknowledged that this could be consistent with someone who was tired.

[166] This officer also noted slow movement on the Defendant's part and that he thought he appeared confused. Again, the video speaks for itself and I find tends to undermine these conclusions.

[167] Further, the Defendant did give evidence that because he was so tired he was not talking as clearly as he normally does and he was a little slow, or delayed, in some of his responses due to his fatigue brought on by the two days of golf, the two hour drive, and sleeping without his CPAP machine.

[168] It should be noted as well, that just before Constable Kushnir was making these observations Mr. Whiffen spoke to the Defendant on the phone and indicated that the Defendant appeared coherent and did not seem to be impaired by alcohol.

[169] In considering then the totality of the evidence going to the issues of impairment, I find the Court is faced with equivocal evidence. The Crown relies on certain observations from their witnesses while the defence relies on explanations for these observations recounted by their witnesses.

[170] The defence evidence providing explanations for these physical observations comes from the Defendant, Mr. Whiffen and Mr. Derlago. As previously indicated, I found all three witnesses to be credible, forthright and honest. I can find no reason to reject their evidence on these matters which is consistent and corroborative one with the other. Accordingly I accept the defence evidence on these issues.

[171] In this case then, the Defence has led evidence providing an explanation for certain observations that go to the issue of impairment which is credible and worthy of belief. At the end of the day, then in assessing the evidence on the issue of impairment of the ability to operate a motor vehicle, the evidence is equivocal, in that it is subject to two interpretations. The onus is on the Crown to prove this charge beyond a reasonable doubt and being mindful of that onus, I am not satisfied, on the totality of the evidence, given the presence of the equivocal evidence, that the Crown has proved beyond a reasonable doubt that the Defendant's ability to operate his motor vehicle on this date was impaired by alcohol.

[172] Accordingly he will be found not guilty of this count as well.

Note: The official version of these reasons for judgment is the transcript in the court file. In the event that there is a question about the content, the original in the court file takes precedence. The reasons may have undergone editing changes.