Court File and Parties

Ontario Court of Justice

Date: 2015-07-21

Court File No.: Brampton 13-13274

Between:

Her Majesty the Queen

— and —

Ana Algarvio

Before: Justice J. M. Copeland

Heard on: December 8, 9, 2014 and February 11 and May 27, 2015

Reasons for Judgment released on: July 21, 2015

Counsel:

• Mr. M Shanahan, for the Crown
• Mr. W. R. Gilmour, for the defendant Ana Algarvio

COPELAND J.:

Introduction

[1] Ana Algarvio is charged with one count of impaired operation of a motor vehicle, contrary to s. 253(1)(a) of the Criminal Code of Canada, and one count of refusing to provide a breath sample, contrary to s. 254(5) of the Criminal Code of Canada. The factual circumstances arise out of a single vehicle collision on Highway 410. Ms Algarvio's vehicle went behind the barrier and into the median between the Northbound and Southbound lanes, travelled some distance, and crashed into a sign post. When the OPP arrived, Ms Algarvio was sitting in the driver seat of the car, with two tow truck drivers standing nearby. There were no other occupants of the vehicle, and no-one in the vicinity of the car. No-one witnessed the accident.

[2] The trial proceeded before me over several days. No Charter issues were raised. Counsel for Ms Algarvio raised a number of issues, but the fundamental issue is whether Ms. Algarvio was impaired by alcohol, and chose to refuse to provide a breath sample, or whether she was suffering from shock or a head injury as a result of the clearly severe impact of the collision and not impaired, and her refusal was as a result of lack of understanding due to the effects of the collision.

[3] The Crown case consisted of the evidence of the arresting officer, several EMS personnel, the breath technician and video recording of the events in the breath room, and a couple of other officers. The defence evidence consisted of the evidence of Ms. Algarvio, a friend who had spent the evening with her prior to the collision, and expert evidence in relation to shock and head injury.

Evidence

[4] No-one witnessed Ms Algarvio driving before the collision or witnessed the accident. The facts of the events at the roadside and in the breath room are not contested to any significant degree.

[5] Constable Cannon of the OPP was dispatched at 10:19 p.m. on September 1, 2013 to attend at a collision on Highway 410 Northbound between Courtneypark Drive and Highway 7. He was the first officer to arrive, at 10:26 p.m. When Constable Cannon attended, Ms Algarvio's vehicle was resting at the base of a sign post it had collided with. The car was near the Northbound side in the centre median. Ms Algarvio was sitting in the driver seat with the door open. Two tow truck drivers were standing by the door. There was no-one else in the vicinity, and no other occupants of the vehicle.

[6] It was clear from the circumstances that the impact of the collision was severe. Constable Cannon described the car as having extensive front end damage, with the front end opened up, exposing the engine. Constable DiPasquale, who also attended at the scene, described heavy front end damage, and said that the engine was removed from the car. At least the driver-side airbag had deployed. Because of where the highway barrier was located, and the fact that there was no damage to the barrier, it was clear that the car had gone off the road and into the median some distance from where it hit the sign post. Constable DiPasquale estimated the distance as 100 feet or more, but he did not measure.

[7] Constable Cannon spoke to Ms Algarvio. He asked if the car was hers, and she said yes. He asked her where she was coming from, and she said Toronto. Her speech was slurred. Because the car engine was smoking, he asked her to come out of the car. By this point, Fire personnel had arrived. Ms Algarvio was extremely unsteady on her feet, and Constable Cannon had to assist in supporting her. He noticed a strong odour of alcohol coming from her. He asked her if she had been drinking, and she said no.

[8] Constable Cannon testified that he formed reasonable and probable grounds to arrest Ms Algarvio for impaired operation of a motor vehicle and to make the breath demand by 10:29 p.m.. He placed her under arrest at that time.

[9] As Constable Cannon made the arrest, EMS paramedics arrived at the scene. Constable Cannon and Ms Algarvio were still by her car. The ambulance was stopped on the left shoulder of the Northbound lanes. There was some dispute as to who exactly helped Ms Algarvio to the ambulance, but she was assisted to the ambulance by some combination of Constable Cannon, EMS and Fire personnel.

[10] In light of the level of impact of the collision, Constable Cannon was concerned to have Ms Algarvio examined by EMS. He did not place her in handcuffs at the time of the arrest, because he wanted her to be examined by EMS personnel.

[11] Two EMS workers saw Ms Algarvio by the roadside. She did not want to get into the ambulance, and she did not want to be assessed. The EMS workers described her as uncooperative, and one described her as belligerent. She kept repeating "I'm fine. I'm fine." She had slurred speech and was unsteady on her feet. They could smell alcohol. Ms Algarvio refused to get into the ambulance and would not let the EMS personnel check her vital signs or do an assessment. She refused to be transported to hospital. One of the EMS workers said Ms Algarvio was not coherent and not answering questions appropriately. He said that she seemed irrational on the issue of not being examined, and appeared not to understand the risk she was taking by not being examined. Constable Cannon and the two EMS workers tried to get her to agree to be assessed, but she continued to refuse to be assessed.

[12] The EMS personnel testified that because Ms Algarvio refused to be examined, they could not rule out that she suffered a head injury in the collision. The EMS workers agreed they were concerned, given the nature of the collision and the serious impact involved, that she may have a head injury or internal injuries. They agreed that the effect of a concussion, if one had occurred in the accident, would have been instant. They did not notice visible injuries on Ms Algarvio, but agreed that they were not able to examine her closely, and that a person could have a head injury or shock without immediate visible injuries. They could not rule out that Ms Algarvio had suffered a head injury or internal injuries. They agreed that the symptoms of slurred speech, unsteadiness, and belligerence can be caused by a concussion or by intoxication by alcohol. The EMS workers were concerned enough about Ms Algarvio's medical situation that they called a supervisor to attend in relation to her refusal to be assessed.

[13] During the time EMS was trying to examine Ms Algarvio, they asked her if she had had anything to drink. They recorded her response as: "2 vodka shots ... 2 vodka sodas." Although defence counsel initially took issue with the voluntariness of the statements to EMS personnel at the roadside, at the end of the trial defence conceded voluntariness. Crown counsel conceded that the statement was equivocal as to whether it was referring to two drinks or four drinks, and in final submissions did not seek to rely on the statement for the purpose of arguing it was an admission that she had four drinks. However, Crown counsel did note the inconsistency between the statement to EMS and Ms Algarvio's statement to Constable Cannon that she did not have anything to drink.

[14] After Ms Algarvio refused to be examined by EMS personnel, Constable Cannon read her rights to counsel at 10:42 p.m., and the primary caution at 10:43 p.m. Although Ms Algarvio said the understood the right to counsel, she said she did not understand the caution and kept repeating that.

[15] The paramedics then tried to get her to sign paperwork regarding her refusal to be examined. Ms Algarvio became agitated and uncooperative. Constable Cannon placed her in handcuffs, and after that she was willing to sign the paperwork.

[16] Constable Cannon and Constable DiPasquale then escorted Ms Algarvio to Constable Cannon's cruiser, which was across the median on the Southbound shoulder. She was still unstable on her feet. Constable Cannon then transported Ms Algarvio to the Port Credit OPP detachment. He realized while en route that he had not formally read the breath demand to Ms Algarvio. He read the breath demand to her while driving to the detachment at 11:02 p.m. Ms Algarvio replied: "I'm not doing it."

[17] They arrived at the Port Credit detachment at 11:07 p.m. After booking and speaking to duty counsel briefly, Ms Algarvio was taken into the breath room at 11:35 p.m. The breath technician was Constable Dunnah. Constable Cannon also remained in the breath room.

[18] The breath room video was tendered as evidence in the trial. I have reviewed it. In general, Ms Algarvio appears drowsy, and at times appears to be sleeping. She is not very responsive to Constable Dunnah's verbal interactions with her. At times she does not respond to his questions. At times, when asked if she understands things she says "yeah", at other times she says she does not understand. At different points she is asked to provide a breath sample, and her responses include: "I'm not doing it", "I don't want to do it", no response, "no, I'm sleeping". At times she appears to be sleeping or trying to sleep. She tries to lie on the floor to sleep, and then on the bench. Constable Dunnah more than once tells her to wake up, and to sit up. Ms Algarvio did not provide a suitable sample, or at any point attempt to provide one by blowing into the machine.

[19] At the detachment at 2:57 a.m., while the police were preparing to release Ms Algarvio, the police called EMS again because Ms Algarvio said she was experiencing a lot of chest pain. Two new EMS workers saw Ms Algarvio around 3:15 a.m. The EMS personnel asked to examine Ms Algarvio. She refused. They recommended to Ms Algarvio that she go to the hospital. When they said that, she said it did not hurt anymore. She did not want to go in the ambulance. EMS repeatedly tried to get Ms Algarvio to agree to be examined, but she continued to refuse. EMS again asked her to sign refusal of treatment forms.

[20] The only significant factual issue in dispute is whether Ms Algarvio's condition after the accident was caused by impairment by alcohol, or whether it was the result of shock or a head injury as a result of the collision. Ms Algarvio testified, supported by the evidence of a friend who was with her earlier in the evening. Their evidence, which I will address in more detail in due course, was that the only alcohol that Ms Algarvio consumed was only 2 vodka and sodas earlier that evening, and was not impaired by alcohol.

[21] Because Ms Algarvio testified, I must assess credibility of the defence evidence in the context of the evidence as a whole following the Supreme Court's decision in W.D. I will address my findings on credibility in the course of my analysis below of whether I am persuaded beyond a reasonable doubt that Ms Algarvio's ability to operate a motor vehicle was impaired by alcohol.

Issues and Analysis

[22] Defence counsel raised four issues on behalf of Ms Algarvio:

1. Whether there were reasonable and probable grounds to make the breath demand (an aspect of the requirement that there be a valid demand for the offence of refusing to provide a breath sample);

2. Whether the breath demand was made as soon as practicable (an aspect of the requirement that there be a valid demand for the offence of refusing to provide a breath sample);

3. Whether the Crown has proven that the solution in the intoxilyzer was not expired (argued to be an element of the offence of refusing a breath sample – discussed further below);

4. Whether the Crown has proved beyond a reasonable doubt that Ms Algarvio was impaired by alcohol, as opposed to suffering from shock or a head injury as a result of the accident (an element of impaired operation, and also as an element of either the intent or voluntary actus reus of the offence of refusing a breath sample).

I will address each issue in turn.

1. Were there reasonable and probable grounds to make the breath demand?

[23] Counsel for Ms Algarvio argues that there were not reasonable and probable grounds to make the breath demand. This issue is relevant to the element of refusing a breath sample that the demand must be valid: R. v. Grant, 2014 ONSC 1479 at para. 81.

[24] The reasonable and probable grounds standard has both a subjective and an objective aspect. The subjective aspect requires that the officer have an honest belief that the suspect committed the offence. The objective aspect requires that a reasonable person in the position of the officer would be able to conclude that there were reasonable and probable grounds for the arrest and breath demand. Stated differently, was the officer's belief supported by objective facts? The reasonable and probable grounds standard is not an onerous one: R. v. Bush, 2010 ONCA 554 at paras. 36-58; R. v. Censoni, [2001] O.J. No. 5189 at paras. 29-48 (S.C.). In the context of a breath demand pursuant to s. 254(3), the officer must have reasonable and probable grounds that the individual's ability to drive was even slightly impaired by alcohol, and that they have driven or had care or control of a motor vehicle in the preceding three hours. A trial judge considering whether reasonable and probable grounds existed, must consider the totality of the circumstances.

[25] I find that there were reasonable and probable grounds to make the breath demand.

[26] The grounds relied on by the arresting officer for the breath demand and arrest were as follows:

• He arrived at the scene of the collision at 10:26 p.m. and saw the collision scene and Ms Algarvio in the vehicle. As outlined above, it was a single vehicle collision in which the vehicle had driven for some time in the median behind the barrier and then crashed into a sign post;

• Ms Algarvio was in the driver's seat;

• He spoke to Ms Algarvio and she said it was her vehicle;

• He observed that her speech was slurred;

• He observed that she was extremely unsteady on her feet, and had to be assisted when standing;

• Although she denied having consumed alcohol, Constable Cannon observed an odour of alcohol coming from Ms Algarvio.

[27] I find that these observations taken together are sufficient to constitute reasonable and probable grounds, both subjectively and objectively.

[28] The fact that there may have been another possible explanation for Ms Algarvio's symptoms, i.e., shock or head injury as a result of the collision, does not negative that all of the circumstances taken together were sufficient to constitute reasonable and probable grounds that her ability to operate a motor vehicle was impaired by alcohol: R. v. Bush, supra at paras. 57-58; R. v. Censoni, supra at para. 47.

2. Was the breath demand made as soon as practicable?

[29] Counsel for Ms Algarvio argues that the breath demand was not made as soon as practicable. This issue is relevant to the refuse charge and the element of the offence of there being a valid demand.

[30] The factual basis for this issue is Constable Cannon's evidence that in the process of dealing with the accident scene and trying to have Ms Algarvio looked at by EMS, he forgot to read the breath demand earlier. The total time from the arrest, at 10:29 p.m., to the reading of the breath demand, at 11:02 p.m., was 33 minutes.

[31] Case law interpreting the requirement that a demand under s. 254(3) be made "as soon as practicable" has held that this means that the demand must be made within a reasonably prompt time after the arrest in all the circumstances: R. v. Squires (2002), 59 O.R. (3d) 765 at paras. 24-33 (ONCA).

[32] In all the circumstances, although the delay was not ideal, I find that the breath demand was made as soon as practicable. Constable Cannon arrived at the scene at 10:26 p.m. He formed the reasonable and probable grounds for arrest by 10:29 p.m., and made the arrest at that time. He then backed off to allow EMS personnel to try to examine and evaluate Ms. Algarvio. After Ms. Algarvio refused to be examined, he read her rights to counsel at 10:42 p.m., and the primary caution at 10:43 p.m. He left the scene with Ms Algarvio at 10:55 p.m. At 11:02 p.m., in his cruiser on the way to the Port Credit OPP detachment, Constable Cannon read Ms Algarvio the breath demand while they were stopped at a red light. In cross-examination, he explained that he forgot to read the breath demand earlier, because he was distracted by the need to get medical treatment for Ms Algarvio.

[33] Constable Cannon was dealing with a very serious collision, and a large number of EMS and fire personnel at the scene. There was reason to be concerned that Ms. Algarvio had been injured in the collision, but she was refusing to be examined. Constable Cannon was appropriately concerned to try and obtain medical assessment of Ms Algarvio, and it was reasonable to allow EMS personnel time to try and examine Ms Algarvio.

[34] Finally, the delay in reading the demand did not cause any delay in the ultimate time Ms Algarvio was processed at the Port Credit OPP detachment in the breath room, and the attempt made to take breath samples. Because of the need to try and have Ms Algarvio examined by EMS personnel, even had Constable Cannon read the breath demand as soon as he made the arrest, he would not have left the scene any earlier. The time taken to read the demand later did not cause any extra delay, because he read the demand while they were en route driving to the Port Credit OPP detachment.

[35] Based on all of the above circumstances, I find that the breath demand was made as soon as practicable.

3. Proof that solution in breathalyzer was not expired

[36] Counsel for Ms Algarvio argues that the Crown has failed to prove that the solution in the intoxilyzer was not expired. In effect, the defence argues that an element of the offence of refusing a breath sample is that the Crown prove beyond a reasonable doubt that the breathalyzer was functioning properly.

[37] Although there was a need for the breathalyzer technician to have a break in his evidence to pull some additional documents in relation to the expiry date of the solution, I am satisfied that the Crown has proven as a fact that the solution in the breathalyzer was not expired, and that the intoxilyzer was functioning properly. I accept Constable Dunnah's evidence regarding the standard tests he did on the machine. I also accept his evidence that the solution used in the machine that night was not expired, based on the evidence of a certificate showing that the alcohol standard solution with the same lot number as the solution in the machine on the night at issue had an expiry date of September 30, 2014. Thus, it was not expired on the date of the alleged offence of September 1, 2013. In addition, I accept his evidence that there is a whiteboard in the breath room that lists information about the particular intoxilyzer, including the lot number and the expiry date of the solution. I accept his evidence that it was his practice to check that board when he was on duty as a breath technician, and that he would have checked it that night. Defence counsel cross-examined Constable Dunnah on the possibility that the solution used could have the same lot number as the certificate, but have a different expiry date. Constable Dunnah said he had no information regarding this possibility. I find that in all the circumstances, that suggestion is speculative.

[38] In light of my finding of fact that the Crown has proven that the intoxilyzer was functioning properly, it is not necessary for me to decide if the presence of a properly functioning breathalyzer is an element of the offence of refusing a breath sample. Defence counsel was not able to provide me with any authority supporting the proposition that the Crown must prove as an element of the offence of refusing a breath sample that the intoxilyzer is functioning correctly in a case such as this one where there is no attempt by the detainee to blow. The case law does not typically state the elements of the offence as including a requirement of a functioning breathalyzer: see for example, R. v. Grant, supra at para. 81. Further, the authorities appear to hold that where there is an outright refusal (i.e., no attempt to blow), there is no obligation on the Crown to prove that the breathalyzer is functioning properly: R. v. Weare, [2005] O.J. No. 2411 (ONCA); R. v. Danychuk, [2004] O.J. No. 615 (ONCA); R. v. McNeil, [2002] O.J. No. 3982 (S.C.).

4. Factual findings regarding impairment or effects of the collision

[39] The crux of this case is whether the Crown has proven beyond a reasonable doubt that Ms Algarvio's ability to operate a motor vehicle was impaired by alcohol at the time she drove, and that she voluntarily refused to provide a breath sample, or whether I have a reasonable doubt that she was impaired by alcohol, and rather her symptoms were caused only by the effects of the collision (shock or a head injury).

[40] It was common ground between Crown counsel and defence counsel that if I have a doubt that Ms Algarvio was impaired by alcohol, and I find that her symptoms could have been caused by the effects of the collision, then I would also have a reasonable doubt in relation to the count of refusing a breath sample. In other words, Crown counsel did not argue that even if I have a doubt about the cause of Ms Algarvio's symptoms (and thus would have a doubt about whether she was impaired by alcohol), I should nonetheless find her guilty of refusing to provide a breath sample. Rather, Crown counsel argued that on all of the evidence I should find that Ms Algarvio was impaired by alcohol, and that she understood the breath demand, and made a choice to refuse to provide a breath sample.

[41] The relevance of whether I have a doubt that Ms Algarvio's condition was due to impairment by alcohol, and rather that she may have been suffering from shock or a head injury is straightforward for the count of impaired operation. In order to prevail on that count, the Crown must prove beyond a reasonable doubt that Ms Algarvio was impaired by alcohol.

[42] With respect to the count of refusing a breath sample, if I have a reasonable doubt that Ms Algarvio was impaired by alcohol, and rather that her symptoms could have been caused by the collision, and those symptoms prevented her fully understanding the breath demand, then there would be a reasonable doubt about her intent to refuse, or about the voluntary nature of the actus reus of refusing.

[43] I acknowledge that there is some dispute in the case law, both in this court and the Superior Court, in relation to the nature of the intent requirement for the offence of refusing or failing to provide a breath sample, and the related issue of what constitutes a reasonable excuse: see for example the discussion of this issue in R. v. Greenshields, 2014 ONCJ 35; R. v. Soucy, 2014 ONCJ 497; R. v. Porter, 2012 ONSC 3504. Given the division on this issue in the Superior Court, I am not bound by either line of cases. I prefer the analysis in the Greenshields/Soucy line of cases. Further, as noted above, Crown counsel did not argue that if I have a reasonable doubt that she was impaired by alcohol, and rather she may have been in shock or had a head injury, I should nonetheless find Ms Algarvio guilty of refusing to provide a sample.

[44] Crown counsel relies on the nature of the collision, the observations of Ms. Algarvio by the police and EMS personnel, her appearance on the breath room video, and her various statements at the roadside and in the breath room which Crown counsel argues shows she understood the situation she was in, as evidence that she was impaired by alcohol, and not suffering from a head injury or shock. In addition, Crown counsel points to the lack of visible injuries to Ms Algarvio's head, and the observation of one of the EMS workers that the windshield of her vehicle was not broken and did not have "spider-webbing", which she would expect from the impact of a head on the windshield.

[45] The defence led evidence from Ms Algarvio, from her friend Tanya Budgell, and from Dr. Rakesh Uppal, who was qualified as an expert in medicine, specifically with respect to the effect of blunt trauma on the head.

[46] Ms Algarvio's evidence was that she was out with friends at a restaurant in downtown Toronto earlier in the evening. They arrived at the restaurant about 5:30 p.m. They ordered some drinks and talked, and then ordered dinner. Over the course of the evening she drank a soda water, a vodka and soda with dinner, and another vodka and soda after dinner. After dinner she drank only soda water and bottled water. After dinner the restaurant got busy, and there was a DJ. People were dancing and talking. Ms Budgell was carrying some drinks, a white wine and a vodka and soda, as they walked through the crowd, and someone bumped into them and the drinks were spilled on Ms Algarvio.

[47] Because her clothes were wet, and there were no dryers in the bathroom, Ms Algarvio decided to go home. She left to drive back to Brampton at close to 10:00 p.m. She drove home along the Gardiner Expressway, up Highway 427, along Highway 401, and then Northbound on Highway 410. As she travelled on Highway 410, she was in the farthest left lane. To her right and a bit in front of her was another car (I will refer to it as "the second car"). She then saw in her rear view mirror another car ("the third car") approach behind the second car, speeding. The third car sped by her, and then changed lanes right in front of her. She had to slam on her brakes. She went into the gravel. She lost control and went into the ditch. She hit her head, and the next thing she remembered was being hit by the air bag. She believed she hit her head on the driver's side window and on the steering wheel. She blacked out. She did not remember hitting the sign post.

[48] When she came to, a man was tapping at her window (a tow truck driver). She got out of the car, but he told her she should wait in the car, and that the police were on their way. She felt very disoriented, and confused. Then she was in a lot of pain in her head, body, chest and stomach. She got back in the car and waited for the police.

[49] Ms Algarvio testified that she would not allow the paramedics to examine her because she was incoherent about what was really going on, and that she is terrified of doctors and of going to the hospital. She gave evidence (supported by her friend Ms Budgell) of a trip to Jamaica a year before the accident where she had injured her wrist in a fall. She never had the wrist looked at by a doctor, despite ongoing problems, because of her fear of doctors.

[50] Ms Algarvio testified that when she was asked to take the breathalyzer she was in a lot of pain. She could not see properly. Voices seemed to be going in and out. She was confused and did not really understand what Constable Dunnah was saying.

[51] Ms Budgell's evidence generally supported Ms Algarvio's. She is a friend of Ms Algarvio's and has known her for 20 years. On September 1, 2013, she and Ms Algarvio had dinner with other friends at a restaurant in downtown Toronto. She was with Ms. Algarvio throughout the time at the restaurant. Ms Algarvio had two vodka and sodas during ordering dinner and dinner. After dinner Ms Algarvio did not drink anything. After the bill was paid for dinner, Ms Algarvio went to the bar with Ms Budgell to get drinks for Ms Budgell and another one of their friends. On the way back, Ms Budgell was bumped and spilled the two drinks she was carrying. One drink was white wine, and she could not recall what the second drink was. Both she and Ms Algarvio had the drinks spill on them. They went the washroom to try and clean up, and then Ms Algarvio left. She estimated that Ms Algarvio left around 9:30 p.m.

[52] Ms Budgell gave evidence about Ms Algarvio breaking her wrist in a fall in on a trip to Jamaica. Ms Budgell called the front desk of their hotel, which called a doctor and an ambulance. When they arrived, Ms Algarvio refused to go with the ambulance or to be seen by a doctor, because of her fear of doctors.

[53] Dr. Uppal is a medical doctor with a general practice. In forming his opinion he reviewed the notes of the four EMS workers, the ambulance call report, the notes of Constable Cannon, the synopsis, and the breath room video. He did not examine Ms Algarvio. After he prepared his report, but before he testified, Dr. Uppal met with Ms Algarvio to interview her.

[54] Dr. Uppal's evidence consisted of five points, outlined in his report and fleshed out in his oral evidence. He gave evidence of the symptoms of shock and concussion. He was of the opinion that:

1. It was probable that at the time of the breath demand in the breath room, Ms Algarvio was in sufficient shock that she did not properly comprehend the demand;

2. Ms Algarvio's staggering described by the police and EMS personnel at the roadside and in the breath room is consistent with an impact to her forehead and impact from the deployment of the airbag;

3. Ms Algarvio's slurred speech described by the police and EMS at the roadside and in the breath room is consistent with an impact to her forehead and impact from the deployment of the airbag;

4. Ms Algarvio's drowsiness and fading from consciousness in the breath room is consistent with an impact to her forehead and impact from the deployment of the airbag;

5. In the presence of the symptoms in points 2 to 4 above, it is not possible to differentiate whether her symptoms (or some of them) were caused by impact or by consumption of alcohol, without a blood analysis of some form.

[55] Before turning to my assessment of Ms Algarvio's and Ms Budgell's evidence, I will address my findings with respect to Dr. Uppal's evidence. I accept Dr. Uppal's points 2 to 4. Essentially the sum of these points is that it is possible Ms Algarvio's symptoms were caused by shock or a head injury, and it is also possible they were caused by impairment. These propositions strike me as non-controversial. Crown counsel did not take issue with them, and indeed suggested that they may not even require expert evidence.

[56] I also accept, with one caveat, Dr. Uppal's conclusion 5 that one cannot tell without a blood analysis whether the symptoms were caused by the impact of the accident or by intoxication by alcohol. The caveat is that I take this opinion as meaning that one cannot tell the difference between impairment and another symptom such as shock or head injury by the physical symptoms alone (absent a blood or breath test). However, this does not mean that taking into account all of the circumstances of the accident and events of that evening, it would not be possible for a trial judge to come to a conclusion as to the cause of the symptoms.

[57] I do not accept Dr. Uppal's proposition number one, that he is able to form the opinion that it is probable that at the time of the breath demand in the breath room, Ms Algarvio was in sufficient shock that she did not properly comprehend the demand. My difficulty with this proposition is the assertion of probability as opposed to merely possibility. His assertion that it is probable that she was in sufficient shock that she did not understand the breath demand is fundamentally inconsistent with his fifth conclusion that absent a blood test, it is not possible to tell if her physical symptoms were caused by alcohol or by the impact of the collision. It causes me concern with respect to Dr. Uppal's credibility that he would be willing to state the opinion in his point 1, when there appears to be no basis on which he could come down on one side or the other of the line. It appears that the assertion that he can tell that the refusal was probably due to shock could only be driven by a misguided decision to advocate on Ms Algarvio's behalf.

[58] However, as noted above I accept his evidence on points 2-5, despite these concerns about his credibility, as those points are non-controversial. This leads me, as the trier of fact, back to the need to assess all of the evidence in order to decide whether the Crown has proven beyond a reasonable doubt that Ms Algarvio's symptoms were caused by impairment by alcohol.

[59] As noted above, because defence evidence was led, I must approach the credibility of the defence evidence in accordance with the decision of the Supreme Court of Canada in W.D. If I believe the defence evidence I must acquit. Even if I do not believe the defence evidence, if I am left in a reasonable doubt by it in the context of all of the evidence, I must acquit. Finally, even if the defence evidence does not leave me with a reasonable doubt, I must assess whether on the evidence as a whole the Crown has proven the charges beyond a reasonable doubt.

[60] On the first branch of W.D., I find that I do not believe the evidence of Ms Algarvio and Ms Budgell. Crown counsel asked me to find that Ms Algarvio was not credible because she lied to Constable Cannon about not having anything to drink, because she could not produce the receipt for her drinks, and because he argued there was inconsistency between Ms Algarvio and Ms Budgell about whether Ms Algarvio also consumed non-alcoholic drinks. I do not find that these points significantly affect my assessment of Ms Algarvio's credibility. Ms Algarvio explained that she told Constable Cannon she had not been drinking because she had had nothing alcoholic to drink for a couple of hours. I do not find the lack of a receipt to be a significant issue. And I am not persuaded that Ms Budgell's evidence is necessarily inconsistent with Ms Algarvio's regarding non-alcoholic drinks. Ms Budgell said there may have been water on the table.

[61] My primary concern is that aspects of Ms Algarvio's and Ms Budgell's evidence seem like a too convenient response to aspects of the Crown's case. I refer in particular to the spilled drinks to explain the smell of alcohol, and the fear of doctors to explain the refusal to be examined by the paramedics. An obvious deficiency in the defence case is the lack of contemporaneous medical examination of Ms Algarvio to confirm she was suffering from shock or a head injury or other effect of the accident. The defence addresses this issue by Ms Algarvio's evidence, supported by Ms Budgell, that she is terrified of doctors, and that this has been an issue for her in the past (the untreated wrist injury from the Jamaica trip). I caution myself not to shift the onus of proof to the defence. By definition, defence evidence seeks to explain otherwise incriminating evidence in the Crown's case. But I find that I am unable to find on the first branch of W.D. that I believe Ms Algarvio and Ms Budgell's evidence.

[62] Turning to the second and third branches of W.D., I start by noting the difficulties of a case like this for the Crown. There were no witnesses to the manner of Ms Algarvio's driving before the collision. There were no witnesses to the collision. The Crown asks the court to draw conclusions about the cause of Ms Algarvio's symptoms based on the nature of the accident, that the symptoms are consistent with impairment by alcohol, and the absence of contemporaneous medical evidence of a cause other than impairment by alcohol. But weighing on the other hand is the lack of evidence of the driving, or of the circumstances of the collision, and the lack of observation (apart from the defence evidence) of Ms Algarvio's condition prior to the intervening event of the accident. As outlined above, the impact of the collision was clearly quite severe.

[63] The evidence in this case leaves me with a reasonable doubt as to the cause of Ms Algarvio's symptoms after the collision, on both the second and third branch of the W.D. analysis. Ms Algarvio was involved in a single vehicle collision involving a serious impact. She had symptoms after the collision that were consistent with both impairment by alcohol and shock or a head injury in the impact of the collision. I acknowledge that the smell of alcohol speaks to the involvement of alcohol. But Ms Algarvio and Ms Budgell both gave evidence of alcoholic drinks being spilled on Ms Algarvio at the restaurant. Although I am unable to find that I believe this evidence on the first branch of W.D., I do not completely disregard it.

[64] The circumstances of the collision involving a single vehicle and the distance it drove in the median behind the barrier also cause me some concern; however, they are not inconsistent with Ms Algarvio's explanation of how the collision happened. And there is no evidence to contradict her explanation, such as a witness to the accident, or a collision reconstruction to possibly show that her explanation is not credible. In all of the circumstances, although I do not believe Ms Algarvio and Ms Budgell's evidence, it leaves me with a reasonable doubt in the context of all of the evidence. I am also not persuaded beyond a reasonable doubt on the third branch of W.D.

[65] Crown counsel argues that I should find that the Crown has proven beyond a reasonable doubt that Ms Algarvio's symptoms were due to impairment because the windshield of the car was not broken, suggesting no head impact, and because there was no evidence that Ms Algarvio had visible injuries on her head (although she would not allow EMS to examine her).

[66] This argument has some force. However, the evidence that the windshield was not broken and that EMS personnel (who were unable to examine Ms Algarvio) did not see visible head injuries, taken with all of the evidence, does not rise to the level of persuading me beyond a reasonable doubt that Ms Algarvio could not have sustained injuries in the accident that could have caused her symptoms. The EMS personnel agreed that the force of the accident was sufficient to cause head injuries or internal injuries. They could not rule out that Ms Algarvio had suffered a head injury, because they were unable to examine her. The impact from the collision appears to have been quite severe. There is no evidence, for example, from an accident reconstructionist that might show that the speed was not significant at the time of impact and that contrary to the appearance of the crash scene, the impact may not have been severe.

[67] Based on the record before me, common sense and experience tell me that it is probable that Ms Algarvio's ability to operate a motor vehicle was impaired by alcohol, and that her refusal was driven by knowledge of that, rather than by shock or an injury from the accident. But I am not persuaded of these points beyond a reasonable doubt, and that is the standard the Crown is required to meet.

Conclusion

[68] For the reasons given above, I find Ms Algarvio not guilty of both counts. The charges are dismissed.

Released: July 21, 2015 (revised version July 23, 2015)

Signed: "Justice J. M. Copeland"

Footnotes

[1] Without deciding the issue, I note that there is some authority supporting that where a detainee attempts to blow and for some reason does not provide a valid sample, in some circumstances, whether the intoxilyzer was functioning properly can become a live factual issue, without being an element of the offence: R. v. Farkas, [2002] O.J. No. 4682; R. v. McNeil, [2002] O.J. No. 3982 (S.C.).

[2] I acknowledge and have considered the possibility that Ms Algarvio could have been intoxicated by alcohol and then have been injured in the accident. Although I juxtapose intoxication and injury in the accident as separate possibilities because that is how the defence case was argued, ultimately in considering the burden of proof the issue I must decide is whether the Crown has proven beyond a reasonable doubt that Ms Algarvio was impaired by alcohol at the time she drove.