Court File and Parties

Court File No.: Central East – Newmarket – 14-7395 Date: 2015-05-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jane Sakai

Before: Justice P.N. Bourque

Counsel:

• S. Renaud, for the Crown
• T. Hawtin, for the accused Jane Sakai

Heard: In Writing

Reasons for Judgment

Released on May 6, 2015

Overview

[1] As a result of a call by a civilian witness about a potential impaired person behind the wheel of a car at an LCBO, the police attended and after their investigation the defendant was charged with impaired care and control and over 80 care and control.

Jayme Cook

[2] . . . is a York Regional Police officer who was dispatched at 17:09 to a report of a potential impaired driver heading to a liquor store. The dispatch gave a description which matched the vehicle that the officer saw in the parking lot.

[3] Officer Cook's timelines are as follows:

Time	Event
17:19	The vehicle was located in the parking lot. The rear brake lights were on and the engine was running. There was one person in the car with her hands on the wheel. The officer went up to the vehicle and the driver (the defendant) rolled down the window and the officer smelled alcohol coming from the car. The vehicle was running and in drive. The officer asked the defendant to put the vehicle in park and she did so but there was a significant delay in doing so, and the officer said that she was hesitant in all of her understanding and taking action. The officer asked her to take off her large sunglasses and the defendant had a wide stare as if she was staring past the officer (and two other officers who had come up) and the whites of her eyes were bloodshot and red in colour. The officer had her get out of the car and she was again hesitant.
17:22	The officer arrested the defendant for impaired driving. On the walk to her cruiser, the defendant walked in short hesitant steps and she "appeared to be unbalanced". She was seated in the cruiser without incident.
17:28	The officer read the rights to counsel and caution and breath demand.
17:33	The officer began to transport the defendant to the station. The officer said that the police cruiser now smelt of alcohol.
17:45	The officer arrived at the station and the defendant was searched and paraded before the duty sergeant. The officer stated that while the defendant was cooperative throughout, she was showing signs of anxiety and was claustrophobic. The defendant said that she had taken some medication that morning for anxiety and the officer put her in an empty cell.
17:55 to 17:57	The officer was unsure of how long it took to put the defendant in the cells but thought it was 10 to 12 minutes. The officer began to prepare documentation including her notes. She stated that in arriving at the previous times, she used the "call logs", which she described as her saying things into a recording system which she can then access. She admitted in cross-examination that the times she was speaking into the Call Log could have been a "minute or two after the actual event". She was not more precise about this. I have to admit that this very honest admission by the officer does give me some pause when I then have to come to a conclusion about whether the crown has met its burden of proving that the first breath test was taken within the two-hour envelope. She put in a call to duty counsel but was unsure when that was.
18:30	The duty counsel returned the call.
18:34	The officer took the defendant to a private room to take the call from duty counsel.
18:38	The defendant signalled to the officer that the call was finished.
19:07	The defendant was delivered to the breath technician. Just before delivering the defendant to the breath technician, the officer provided her grounds to the breath technician orally.
19:41	The technician spoke to the officer and said that the tests were finished and the defendant had been taken back to the cells. The breath technician gave the officer the original certificate.
20:03	The officer served the certificate, the notice and other documents upon the defendant by providing to her a copy to keep for herself. The officer then made some phone calls for someone to come and pick up the defendant.

[4] With regard to her timing, the officer spoke of getting the original times from the call logs. She stated that when she handed the defendant to the breath technician, one officer gives the time that they both note.

[5] With regard to symptoms to impairment, the officer refused to provide an opinion as to the effect of anxiety upon any of the symptoms noted but she believed that the symptoms were from impairment. She agreed that she did not know the defendant from any other meeting. She believed the notation on the timesheet record of 17:04 was the dispatch time and not the time of arrest, which she put at 17:22.

Bogdan Molodyko

[6] . . . is a breath technician with York Regional Police. The timeline of his involvement is as follows:

Time	Event
17:50	Upon arrival at the station to start his shift at 18:00 hours, he was informed he was required at 5 district for a breath test; officer readied himself and checked out his cruiser and left as soon as possible.
18:16	Left for 5 district.
18:49	Arrived at 5 district - Intoxilyzer 8000 C was in standby and the officer turned it on, checked the simulator warm up and checked the alcohol standard solution with an expiry date of November 26, 2015.
18:56	Did diagnostic check; pass.
18:58	Did self-breath test; pass.
18:59	Got the grounds from the arresting officer.
19:03	Performed calibration check; pass, and satisfied that the device was working properly, went to find arresting officer to tell her he was ready for the test.
19:07	The defendant was brought into the breath room and the officer made the following observations: strong odour of alcohol, her speech was a little bit fast but fair, face was flushed, cheeks flushed and eyes bloodshot and watery, clothing was orderly and she was polite and cooperative, her balance and standing and walking were fair.
19:08	Did a breath demand and secondary caution.
19:10	The device was ready.
19:14	Defendant provided a suitable sample into the intoxilyzer device after 4 attempts and it read 146 milligrams of alcohol in 100 millilitres of blood.
19:16	Conducted interview for alcohol influence report.
19:33	Device performed second diagnostic and calibration and further diagnostic.
19:36	Device ready for another sample.
19:39	Provided second sample directly into the device after a few attempts and reading was 141 mgs of alcohol in 100 millilitres of blood.
19:41	Defendant left the breath room and officer made two true copies of the certificate with two readings of 140 (truncated) milligrams of alcohol in 100 millilitres of blood.

Jennifer Turner

[7] . . . is a York Regional Police officer and has been for about 3-1/2 years. She was on uniform patrol that afternoon and she received a dispatch at 17:14 telling her to attend at the LCBO outlet (where the defendant ultimately was) to investigate a possible impaired driver in a Red Hyundai Accent. She attended at the scene and saw the defendant with Officer Cook outside of Officer Cook's car. She gave no time of her attendance at the scene. She stated that with regard to any symptoms of impairment, she said that the defendant was slurring her words, and her eyes were glassy and bloodshot. She also said that the defendant was unsteady on her feet and took little concentrated steps and was "making an effort to walk". When asked about the slurred speech, she did not give a further description of this defendant's speech but said generally means a garbled speech and a difficulty with the letter "S" and pronunciation of words.

Has the Crown Proven Beyond a Reasonable Doubt That the First Breath Test Was Completed Within 2 Hours of the Commission of the Offence?

[8] The evidence of Officer Cook is that she first came on the scene at 07:19 and completed her attendance at the scene and formed her reasonable grounds by 07:22. Taking 07:19 as the time of the commission of the offence (ie. when she was last occupying the seat normally occupied by the driver) and the completed first sample being 19:14, then the sample would have been taken some 1 hour and 55 minutes after the offence was committed and the provisions of section 258(1)(c) being satisfied, then the presumption of identity applies and a conviction would follow.

[9] The question in my mind, has the Crown established beyond a reasonable doubt the time of the commission of the offence, or been within sufficient time that I can be of no doubt but that the offence occurred within two hours of the first test. Where I have some difficulty is with the officer's evidence about how she arrived at the time of 17:19. She stated that she did not note the time in any contemporaneous fashion but after the fact made some sort of notation in a log and she admitted that she could have done so "a minute or two" after the event.

[10] In other words, I believe that it is possible that when she made her log notation she could have been in error in saying 17:19 was the time of the offence. While I appreciate that she said "my recordings could have been a minute or two after the actual event", that does not seem to be a statement of any precision. The Crown asserts that all I can do is perhaps deduct two minutes from 17:19 to arrive at 17:17 and by that calculation we are still 3 minutes within the two hour limit.

[11] If it is not a precise statement (and I do not take it as such), then I must say that it could have been more than a minute or two, and thus I cannot determine for sure what the time of the offence actually was. Upon reflection, I cannot say that I am without doubt on this issue. Officer Turner perhaps could have relieved me of any doubt if she had given a time that she arrived on the scene and saw Officer Cook with the defendant. Neither the Crown nor the defence elicited any such time from her. I only know she was first dispatched at 17:14. I do not even know if that was the same dispatch given to officer Cook.

[12] I have considered these issues in past cases,[1] and notwithstanding the reasoning in [R. v. Rajeswaran],[2] I have rejected the notion that I should build into the analysis some type of "fudge factor" when the times are close to deal with potential issues of lack of clock synchronization. That, however, does not relieve me from being satisfied on all of the evidence that the first test was indeed taken within the two-hour limit. Based on the very honest evidence of Officer Cook as to a real potential and undefined error in her statement of the time of the offence, and based on how little room there is to spare, I cannot say that I am convinced beyond a reasonable doubt that the first breath test was taken within two hours of the offence. I therefore cannot apply the presumption of identity to the breath readings (140 truncated) and cannot find the defendant guilty of the offence of driving with excess alcohol.

Has the Crown Proven Beyond a Reasonable Doubt That the Defendant Was Impaired by Alcohol?

[13] Three officers have given evidence about observations they have made of the defendant. Officer Cook made these observations at the roadside:

(i) smell of alcohol at the roadside and in the police car;

(ii) delay in responding to requests from the officer with regard to putting the car in park and in removing her sunglasses;

(iii) a very wide stare;

(iv) red glossy eyes and bloodshot eyes;

(v) she took short steps and "appeared to be unbalanced";

(vi) no evidence as to the operation of the motor vehicle other than the parking was not unusual.

[14] Officer Cook made this observation at the station:

(i) had hesitation and appeared unbalanced and was anxious

[15] Officer Turner made these observations at the roadside:

(i) unsteady on her feet;

(ii) eyes bloodshot and glassy;

(iii) took little concentrated steps;

(iv) slurred speech

[16] Officer Molodyko, the breath technician, made these observations in the breath room:

(i) strong odour of alcohol;

(ii) speech fair if a little bit fast;

(iii) balance and standing and walking were fair;

(iv) face and cheeks flushed and eyes bloodshot and watery;

(v) polite and cooperative;

(vi) breath readings of 140 mgs of alcohol in 100 milligrams of blood some two hours after the care and control.

[17] The burden is on the Crown to prove beyond a reasonable doubt any level of impairment. There is no one specific test for impairment. It can include a panoply of factors which may be enough to convince a trier of fact that the ability of the defendant to operate a motor vehicle was impaired to any extent.

[18] The smell of alcohol is in and of itself evidence of alcohol consumption, not impairment. The breath test readings, cannot be used to prove impairment unless accompanied by an expert's opinion.

[19] With regard to the evidence of slurring of speech, I discount it, as only one officer mentions it and one officer has specifically said that the speech was fair. With regard to the evidence of any unsteadiness or making short steps, there is some evidence of impairment but not all officers noted it and the breath technician describes the walking as fair. The flush face, red watery and bloodshot eyes are also some evidence of impairment but on their own, don't directly speak to the lack of motor and coordination skills that are at the centre of a finding of impairment. Officer Cook speaks to the anxiety and claustrophobia as reported by the defendant.

[20] In contrast, the defendant was polite and followed all instructions. She did many tasks (opening the mouthpiece package for example) with no notation of any lack of coordination.

[21] After weighing all of the evidence, I cannot say that I am satisfied beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by the consumption of alcohol.

Conclusion

[22] I find the defendant not guilty on both counts.

Signed: "Justice P.N. Bourque"

Released: May 6, 2015

Footnotes

[1] R. v. Tames-Salazar 2014 ONCJ 615.

[2] [2003] O.J. No. 2210.