Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Adam Fairhurst

Before: Justice Borenstein

Heard on: February 8, April 24, September 16, October 1, and November 27, 2013

Reasons for Judgment released: November 27, 2013

Counsel:

• Ms. E. Rokach for the Crown
• Mr. H. Morton for the accused Adam Fairhurst

BORENSTEIN J.:

Facts

[1] Adam Fairhurst is charged with driving his car while his ability was impaired by alcohol and while over 80.

[2] At approximately 7:30 p.m. on the date alleged in the information, Mr. Fairhurst was leaving the LCBO. He walked some 20 or 30 feet from the LCBO to his car which was parked in the parking lot of a shopping centre.

[3] A civilian, Mr. Jason Metcalfe, had just returned to his own car with some chicken wings. Mr. Metcalfe's car was parked next to Mr. Fairhurst's car.

[4] Mr. Metcalfe's attention was drawn to Mr. Fairhurst as he suspected that Mr. Fairhurst may have been intoxicated due to the off-balance way Mr. Fairhurst walked to his car. While it was nighttime, there was artificial lighting in the area.

[5] Mr. Fairhurst entered his car which was parked immediately to the right of Metcalfe's car. Metcalfe looked out his passenger window at Mr. Fairhurst. He thought Fairhurst looked groggy and sleepy. Fairhurst's eyes looked heavy and kept closing. Mr. Metcalfe called 911 and reported that the male next to him may be intoxicated. The 911 operator told Metcalfe to call back if the male leaves. Presumably, the police were on their way.

[6] A few minutes later, Fairhurst pulled out of the parking lot. Metcalfe called 911 and stayed on the line with the operator as he followed Mr. Fairhurst.

[7] Fairhurst drove approximately two or three kilometres to a Home Depot parking lot. According to Metcalfe, Fairhurst was speeding.

[8] Metcalfe told the 911 operator that the driver had parked in the Home Depot parking lot and had exited his vehicle. Metcalfe testified that, when the driver exited his car, he was holding a clear plastic bottle.

[9] P.C. Lynch arrived at the parking lot. Mr. Metcalfe pointed out the driver to P.C. Lynch. Lynch went up to Fairhurst who at that time was smoking a cigarette in front of the Home Depot store.

[10] P.C. Lynch told Fairhurst why she was on scene. According to Lynch, Fairhurst slurred his words, his eyes were glossy and he had an odour of alcohol coming from his breath.

[11] Lynch arrested the accused for impaired operation of a motor vehicle. She drove him directly to the police station. After being booked and speaking with duty counsel, Mr. Fairhurst was brought into the breath room where he provided two suitable breath samples into an Intoxilizer 8000 C which was being operated by P.C. Mailer, a qualified Intoxilizer operator.

[12] The Crown adduced the breath certificate which showed truncated breath readings of 190 and 180 milligrams of alcohol per 100 millilitres of blood taken respectively at 9:17 and 9:39.

[13] P.C. Mailer also testified that Mr. Fairhurst's actual breath readings were 195 and 188 milligrams of alcohol per 100 millilitres of blood. He was of the opinion that Fairhurst's ability to drive was impaired by alcohol. He testified that Fairhurst did not slur his speech but his eyes were glossy and there was a strong odour of alcohol coming from his breath.

[14] That was the case for the Crown.

Defence Evidence

[15] Mr. Fairhurst testified. He is 39 years old. He does not have a criminal record. He testified that he and his girlfriend had a serious argument the night before this incident. On the day of the incident, he went to a wings restaurant in the strip mall. He sat at the bar for two hours and had two beers. He had planned to meet his friend Kevin that evening where they would likely have dinner and then return to Kevin's home where they would drink. Mr. Fairhurst testified Kevin was basically a shoulder he wanted to cry on.

[16] Mr. Fairhurst went to the LCBO and bought 10 or 12 beers and a "mickey" of vodka which is 13 ounces.

[17] He walked to his car which was parked next to Mr. Metcalfe. He did not notice Mr. Metcalfe. Mr. Fairhurst testified that he had no difficulty walking to his car. He was not off balance. He had consumed only two beers over the previous two hours.

[18] He placed the beer in the trunk of his car and left the vodka on the floor of the front passenger seat. He was feeling down. He was going to drink the vodka while waiting for Kevin to meet him at Home Depot. He sent Kevin a text message that he would wait for him at Home Depot. He then drove to Home Depot. He was not speeding, certainly not more than perhaps 10 kilometers per hour over the limit.

[19] He pulled into the Home Depot parking lot. He got out of his car and drank the entire "mickey" of vodka in the parking lot while having a cigarette. He would have consumed the vodka within only a few minutes. He then walked to the front of the Home Depot with the empty bottle and threw it in a trash can. That must have been when Metcalfe saw him walking from his car with the bottle. Metcalfe was never asked whether he saw Fairhurst drinking in the parking lot. Lynch did not see a bottle when she dealt with Fairhurst.

[20] In cross-examination, Fairhurst denied being impaired although he agreed that he would begin to feel intoxication "coming on" after one drink.

Expert Evidence

[21] Two experts' reports were filed as exhibits on consent. A toxicologist provided a report to defence counsel and a further report in response to the questions sent to him from the Crown.

[22] In essence, the experts' report states that, given Mr. Fairhurst's weight, had he begun drinking at approximately 6:00 p.m., and had consumed alcohol in accordance with his evidence, he would have been below the legal limit at the time of the offence. What's more, had he consumed 13 ounces of vodka after driving as he described, it would almost perfectly account for the breath readings obtained later at the station. There is variation in his estimate based on differing levels of elimination.

[23] That, in essence, was the evidence.

Crown's Submissions

[24] The Crown submits that it has proved its case on both counts. All three Crown witnesses were of the opinion that Fairhurst seemed impaired. While Fairhurst himself testified that he was not impaired, he conceded that he would feel intoxication coming on after just one drink.

[25] As for the over 80, the Crown submits that the evidence establishes that offence as well.

Defence Submissions

[26] The defence submits that the Crown has not proved beyond a reasonable doubt that Mr. Fairhurst's ability to operate a motor vehicle was impaired by alcohol. He submits I should believe or have a doubt about the accused's evidence when he testified that he had only two beers before driving and that he consumed the "mickey" of vodka after driving.

[27] There is corroboration for the fact that Fairhurst drank after driving. First, Metcalfe saw Fairhurst with a clear plastic bottle when he exited the car at the Home Depot and, second, that bottle was not present when P.C. Lynch arrived. That supports the accused's evidence that he left his car with a bottle and that he threw the bottle in the garbage. That potentially corroborates the accused's version of events. Any observations of impairment noted after he consumed that vodka, particularly, by the breath technician, could be attributable to the post-driving drinking.

[28] As for the over 80, the accused submits that, if I have a doubt about his evidence regarding his drinking that night, together with the expert's report, the presumption will have been displaced and he would have been under the legal limit.

Court's Analysis

[29] Let me begin with the impaired count.

[30] Before I do, I can state that I found all of the witnesses credible. I accept that the accused had some, or perhaps all, of the vodka once he exited his car at Home Depot. The corroboration for that, which I have already referred to, causes me to think it is more likely than not that he consumed some amount of vodka after driving.

[31] Returning to the impaired count, it is clear that the accused's eyes were red and glossy and that he had an odour of alcohol on his breath. The evidence of his speech being slurred given from P.C. Lynch is contradicted by P.C. Mailer. As for his balance, as seen by Metcalfe, I suspect that likely happened. That is what attracted Metcalfe's attention initially. As for his fatigue or droopy gaze, that very well may be the same observations seen by the officers. As the Court made clear in Stellato, if the evidence establishes any degree of impairment, including slight impairment of his ability to operate a motor vehicle, then the accused will be convicted. Slight evidence of impairment is not enough. Evidence of slight impairment is sufficient.

[32] In this case, while I believe Mr. Fairhurst's ability was likely impaired, I have a doubt about that based on the fact that some of the indicia in this case was seen after the drinking in the parking lot, such as the odour, and it affects the use that I can make of the breath technician's opinion evidence in particular. I accept that some of the vodka was consumed after driving which may explain some of the indicia observed. Metcalfe was credible, however, his observations were made quickly at night through the car window. I must consider all the evidence together. In the end, based on all the evidence, I have a doubt about whether the accused's ability to operate a motor vehicle was impaired by alcohol and he will be found not guilty of that charge.

[33] As for the over 80 charge, there is no challenge to the breath readings obtained. The challenge is that, given the drinking that occurred post driving, together with the expert's report, those factors would displace the presumption and place the accused below the legal limit. I do have a doubt about his evidence in that regard for the reasons already given. Accordingly, he will be found not guilty of that offence as well.

Released: November 27, 2013

Signed: Justice Borenstein