Court File and Parties

Court File No.: Central East - Newmarket 4911-998-12-04780-00 Date: 2013-06-12 Ontario Court of Justice

Between: Her Majesty the Queen — and — Andrew Phillip King

Before: Justice Richard Blouin

Heard on: January 8 and May 13, 2013

Reasons for Judgment released on: June 12, 2013

Counsel:

• S. Kumaresan for the Crown
• D. Burke and H. Bassi for the accused Andrew King

Judgment

BLOUIN J.:

[1] Andrew King stands charged that he operated a motor vehicle on June 7, 2012 while his ability to do so was impaired by alcohol.

[2] The Crown called two police officers and an expert toxicologist. The defendant called no evidence.

The Arresting Officer

[3] Constable Ryan Jansen testified that around 3:30 p.m. he observed a green Ford truck making a left turn from Park Road and then head westbound on Highway 48. The vehicle caught his attention because the turn was wide and the driver, unusually slowly, over-corrected.

[4] After the vehicle drove west, the officer recognized it as belonging to a person connected to a police bulletin in his words "constantly driving around town impaired." The weather was sunny and clear and the road was paved.

[5] After the driver pulled into the parking lot of the Park Motel, the defendant got out of his truck. He was the only occupant. The police officer approached and noted the following:

• when asked where he was coming from, the defendant responded slowly;
• the defendant's hands were shaking as he reached for his driver's licence inside his wallet;
• a strong odour of alcohol from the defendant's mouth;
• the defendant was "somewhat unsteady" and swaying forward. The defendant told Jansen that he had a back problem and uneven legs;
• the defendant's zipper was open; and
• an open case of beer in the back of the defendant's truck.

[6] At this point, the officer concluded he had grounds to arrest Mr. King and did so at 3:34 p.m.

[7] A viewing of Exhibit 1, which was a police in-vehicle videotape of the arrest, disclosed the following:

• the officer voiced his observations that the defendant had watery eyes and that the defendant appeared "wobbly";
• slow responses to a few distinct questions;
• swaying and unsteadiness, especially when the defendant turned around to retrieve his driving documents; and
• the defendant himself thought he would blow a "warn", if a screening device test was employed.

[8] After the arrest, P.C. Jansen searched the defendant's truck. The driver's seat was soaked with urine. Jansen retrieved a case of 24 beer that was in the back of the truck. Eight of the bottles were empty and were located in the truck behind the seat. There was one unopened can of beer inside the vehicle.

[9] Around 25 minutes later, during the booking procedure before a Staff Sergeant, Jansen noted the defendant to continue to answer slowly. Jansen could smell urine, and the defendant's pants were wet.

The Qualified Technician

[10] P.C. Tsuchiya interacted with the defendant at the police station in his role as the Qualified Technician. He found the defendant to be cooperative and polite, his speech good, and face apparently normal. He noted the defendant's balance to be fair, his eyes red-rimmed.

[11] He also came to the conclusion that the effects of alcohol on the defendant were slight.

[12] The defendant provided two samples of his breath. At 5:26 p.m. the defendant registered 58 milligrams of alcohol in 100 millilitres of blood. At 5:50 p.m. the reading registered was 49 milligrams. Tsuchiya also testified, "I know that there was a bit of impairment towards his motor skills which would have affected his ability to operate the motor vehicle."

The Forensic Toxicologist

[13] Dr. Robert Langille, employed by the Centre of Forensic Sciences, was qualified as an expert toxicologist on consent. To summarize, Dr. Langille provided an opinion that a person with the readings provided by the defendant, at 5:26 and 5:50 p.m., would have presented with a range of between 40 to 85 milligrams of alcohol in 100 millilitres of blood at 3:28 p.m. It was also his opinion that individuals are impaired in their ability to operate a motor vehicle once their blood alcohol concentration reaches 50 milligrams of alcohol in 100 millilitres of blood.

Findings

[14] The onus on the Crown is to prove beyond a reasonable doubt any degree of impairment by alcohol of the ability to operate a motor vehicle. That impairment may range from slight to great. However, it is not whether the defendant was at least slightly impaired, but whether the defendant's ability to operate a motor vehicle was impaired to even a slight degree.

[15] The toxicology evidence is not conclusive, since the defendant might possibly have had a blood alcohol content of 40 milligrams. However, that evidence can be viewed together with the evidence and opinion of two police officers and with my observations of the on-board video. It was the opinion of two police officers that the defendant's ability was impaired. Their observations that led to that conclusion are noted above.

[16] A careful viewing, and reviewing, of Exhibit 1 lead me to agree with their opinion. While not significantly impaired, the defendant appears to be unable to walk steadily, especially when he turned around to return to his truck. His responses to certain questions were delayed. He had the smell of urine on his pants, his fly was open, and he was obviously sitting in the urine that soaked his seat, at least for a short period of time. Since the defendant did not testify, I must consider only the third prong R. v. W.(D.), (1991), 63 C.C.C. (3d) 397. When I do, I find that the evidence proffered by the Crown satisfies me beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by alcohol, at least to a slight degree. While not outrageous driving evidence, the wide slow turn observed by P.C. Jansen was some evidence of slight impairment of the defendant's ability to operate his truck.

[17] Accordingly, the defendant must be found guilty.

Released: June 12, 2013

Signed: Justice Richard Blouin