Court File and Parties

Ontario Court of Justice

Date: July 9, 2015

Court File No.: St. Thomas 328/12

Between:

Her Majesty the Queen

— and —

Pavo Illic

Before: Justice A. Thomas McKay

Heard on: January 22 and March 17, 2015

Reasons for Judgment released on: July 9, 2015

Counsel:

• Mr. Sigurdson, counsel for the Crown
• Ms. Gunn, counsel for the defendant Pavo Illic

MCKAY J.:

INTRODUCTION

[1] Mr. Illic was charged with drinking and driving offences under sections 253(1)(a) and 253(1)(b), which were alleged to have occurred January 27, 2012. Civilian witnesses, traveling westbound on Highway 401 in the direction of London, noted a pickup truck traveling in the same direction being operated in an erratic fashion. It was later learned that Mr. Illic was the operator of that pickup truck. The witnesses followed Mr. Illic for a period of 5 to 10 minutes, observing his driving, before calling the 911 operator to report a potential impaired driver. The witnesses continued to follow Mr. Illic's truck and update the 911 operator for a period of approximately 40 minutes, eventually exiting Highway 401 and traveling to St. Thomas.

[2] In St. Thomas, Mr. Illic was stopped by a police officer. During a brief conversation, the officer noted indications of alcohol consumption. The officer demanded that Mr. Illic provide a sample of his breath into an approved screening device. Mr. Illic registered a fail on the approved screening device. He was arrested and taken to the Elgin OPP detachment for breath tests. Eventually, he provided suitable samples of his breath which registered 147 mg of alcohol in 100 mL blood, and 141 mg of alcohol in 100 mL of blood.

[3] Prior to the commencement of trial, Mr. Illic brought an application under section 11(b) of the Charter, which was dealt with on an earlier date. At trial, Mr. Illic brought an application alleging violations of his rights under sections 7, 8, 9 and 10(b) of the Charter of Rights. During submissions at the end of the trial, the Crown invited the Court to enter a not guilty finding with respect to the section 253(1)(b) charge, and to disregard the evidence related to the certificate of analysis related to the breath tests. Counsel agreed that, given that position, the defence application under the Charter of Rights had no applicability to the impaired driving charge. The Crown took the position that a guilty finding should be made with respect to the section 253(1)(a) charge of impaired driving. Accordingly, in summarizing the evidence, I will not comment in any detail on some aspects of the evidence which relate specifically to the section 253(1)(b) charge.

EVIDENCE

Jennifer Cappelli

[4] Ms. Cappelli lives and works in Toronto. She often spends weekends visiting her parents in St. Thomas. When she does so, her father normally drives to Toronto Friday afternoon in order to transport her to St. Thomas. During the evening of January 27, 2012, she was seated in the front passenger seat of the vehicle operated by her father, traveling westbound from Toronto to St. Thomas on Highway 401. Somewhere in the area of Ingersoll, she noticed a grey Chevrolet Silverado pickup truck weaving in and out of lanes, driving erratically. The operator of the truck exhibited disregard for any rules, driving in and out, entering the paved shoulder close to the guard rails, and almost striking other vehicles. In her view, the driver appeared to lack any sense of distance or space. After observing the vehicle 5 to 10 minutes, she telephoned the 911 operator. In her view, the conduct of the driver of the vehicle was so dangerous that lives were in danger. The pickup truck almost clipped other cars at high speed.

[5] Ms. Cappelli remained on the telephone line with the 911 operator. She and her father followed the pickup truck for approximately 40 minutes, traveling from the Ingersoll area to St. Thomas.

[6] With respect to the pickup truck weaving between lanes, she testified that there appeared to be no compensation on the part of the driver for the distances between the vehicles on the highway. The truck was traveling at approximately 120 km/h, making sharp lane changes, without signaling, at times moving through all three lanes with no regard for other vehicles. With respect to the guard rails which form a barrier between eastbound and westbound lanes, if the pickup truck was passing another vehicle using the lane closest to the guardrails, it would overcompensate when pulling out to pass a vehicle in the middle lane, and on five or six occasions the pickup came within 6 to 12 inches of making contact with the guardrail. The pickup truck appeared unable to stay in its own lane. It would come to close to another vehicle, then overcompensate, moving too far into another lane before coming back to its lane.

[7] After they exited Highway 401 to travel south to St. Thomas, while on the exit, the pickup truck came within inches of rear ending an 18 wheel truck traveling in front of it. While traveling south of Highway 401 to St. Thomas, similar driving issues existed. The pickup truck was weaving, having issues on curves, crossing into the oncoming traffic lane on four or five occasions, almost entering the ditch on the right side of the road, and attempting to initiate passing other vehicles in the face of oncoming traffic. Ms. Cappelli could not recall other cars needing to take evasive action to avoid the pickup truck. She described the volume of traffic that evening as heavy in the opposite direction. Upon arriving in St. Thomas, the pickup truck almost struck a fence in a yard while making a turn. When the pickup truck was stopped at a stoplight in St. Thomas at approximately 10:45 p.m., police arrived and engaged with the driver of the pickup truck. The driver was a male, and was the only occupant of the pickup.

[8] In cross-examination, Ms. Cappelli confirmed that they were behind the pickup truck the entire time after encountering it in the Ingersoll area, but the distance between the vehicles would vary at times. On occasion, when the pickup truck was further ahead of them, there were other vehicles between their vehicle and the pickup truck. At times, the pickup truck was 10 to 20 car lengths ahead. Her father was providing information related to the pickup truck speed to her, and she was relaying that to the 911 operator. On rare occasions, she lost sight of the vehicle, but her father maintained sight of the vehicle during those times. She testified that she uses distance and measurement daily as part of her work as a graphic designer, and accordingly is confident that her estimates as to distance are accurate.

[9] Ms. Cappelli confirmed that at times, there were one or two vehicles between her vehicle and the pickup truck. The operator of the pickup truck would pass a vehicle or two, and eventually Ms. Cappelli's father would also pass those vehicles in order to continue monitoring the pickup truck. After she and her father observed a police officer stop the pickup truck in St. Thomas, they did not remain any longer. They remained on the phone with the 911 operator and saw the police officer stopped at the pickup truck.

Michael Cappelli

[10] Mr. Cappelli is Jennifer Cappelli's father. He works at a retail outlet in St. Thomas. On the evening of January 27, 2012, he picked up his daughter in Toronto and was traveling westbound on Highway 401 returning to St. Thomas. When he first encountered the pickup truck, his recollection is that there were between four and six lanes on highway 401. He was traveling in the middle lane in the area of Ingersoll when a grey Silverado pickup came up behind him close to the bumper of his vehicle. The pickup then passed him at a high rate of speed, almost clipping his vehicle, and then almost hitting the median. He had been traveling at approximately 108 to 109 km/h. The pickup got within approximately two feet of his rear bumper, traveling at a high rate of speed and then passing his vehicle. The driver of the pickup almost lost control of the pickup while passing him, almost striking the median.

[11] Mr. Cappelli then backed off behind the pickup. When there was an opening, the pickup truck would try to pass other vehicles, at times cutting across all three lanes. The driving of the pickup was very erratic, with no signals of lane changes, and a lack of control over the vehicle during lane changes. The pickup truck would come up very close behind other vehicles. His daughter telephoned 911. They provided the license plate number for the pickup truck. The pickup would speed up as much as it could, then change lanes, trying to get ahead of other traffic. On four to five occasions, the pickup passed people outside of the actual lane, using the shoulder alongside the median. The pickup was traveling at approximately 110 km an hour when it could, moving in and out attempting to pass other vehicles. He kept the pickup truck in his sight at all times.

[12] The pickup truck exited Highway 401 onto Highbury Avenue South. The pickup almost overshot the exit, and it did not appear that the operator of the pickup truck had full control over his vehicle. Mr. Cappelli characterized the driving as very dangerous, with jerky movements in which the operator would yank the wheel. The pickup almost hit the center median several times, swerving and then returning to its original position. On Highbury Avenue, the pickup stopped at a light at the exit, and then made a left turn; almost rear ending the transport truck, coming within inches of it. The transport truck was moving at the time.

[13] Mr. Cappelli described the journey down Highbury Avenue to St. Thomas as scary and dangerous. The pickup truck often left its lane and went onto the shoulder of the roadway, and then moved back into the oncoming traffic lane. He testified that the pickup almost went into the ditch and number of times, and that most of the time it was in the middle of the roadway straddling lanes. On a number of occasions, it had difficulty negotiating curves in the road. At one point, the pickup was traveling at 110 km an hour. Highbury Avenue South is posted as an 80 km/h maximum speed zone. On a number of occasions, he saw brake lights illuminated as oncoming traffic applied brakes. The pickup would then move back into its own lane. The pickup would often be two and a half to three feet onto the shoulder of the roadway. On a number of curves, the pickup truck would be fully in the oncoming traffic lane. He never lost sight of the pickup truck because the 911 operator had asked him to maintain sight of the vehicle.

[14] When they arrived in St. Thomas, he followed the pickup to Burwell Street. The operator appeared to lose control of the pickup while making a left turn onto Burwell, and mounted the curb, onto the grass boulevard and then the sidewalk, almost striking a fence at a residence before swerving back onto the roadway. At one point in that series of events, the pickup truck was at least 10 feet off of the traveled portion of the roadway. He followed the pickup truck onto Burwell Street until it stopped at a traffic light at an intersection. A marked OPP cruiser coming from the opposite direction turned and blocked the front of the pickup truck. He drove on from there, but stayed in touch with the 911 operator.

[15] In cross-examination, he confirmed that he saw that the police officer had stopped the pickup. He continued on his way at that point because he did not want to be involved in the vehicle stop. At various points during the journey, he was relaying information to his daughter, who would relay that information to the 911 operator. He confirmed his understanding there were four to six lanes on Highway 401 at the point where it intersected with Highway 403. Mr. Cappelli indicated that it was approximately a 15 to 20 minute drive from Highway 401 to St. Thomas. During that drive, the pickup truck was either straddling the northbound and southbound lanes or in the lane for travel in the opposite direction approximately 90 percent of the time. With respect to the police stop of the pickup, the police officer got out of his car as soon as he pulled the car in front of the pickup. After that happened, he drove away.

Constable Craig Duncan

[16] Constable Duncan has been a member of the OPP since 2008. He was working night shift on January 27-28, 2012, in full uniform in a marked cruiser. January 27, at 10:53 p.m., he was dispatched in relation to a possible impaired driving offence. The dispatch operator provided him with information related to a Chevrolet Silverado pickup, and provided the license plate number for the vehicle. He was informed that the vehicle was southbound on Highbury Avenue traveling toward St. Thomas and was being followed by civilian witnesses. The information provided to him indicated that the pickup was swerving all over the road, at times moving towards the ditch, at times traveling in the lane intended for travel in the opposite direction, almost causing head-on collisions.

[17] Constable Duncan looked for the vehicle, and then was told by the radio operator that the vehicle was on Burwell Road in St. Thomas. He traveled towards that location, and while turning onto Burwell Road, observed a Silverado pickup stopped at an intersection. The vehicle that he observed matched the description and matched the license plate number that he had been provided with. He pulled in front of the pickup in order to prevent it from proceeding further. His emergency lights were activated. He noted a vehicle behind the pickup with its emergency flasher lights on. As soon as he blocked the pickup truck, that vehicle left the area.

[18] Constable Duncan confirmed the information related to the pickup with his communication center, and then got out of his vehicle. The driver of the pickup produced a photo driver's license confirming his identity as Mr. Pavo Illic. He had a brief conversation with Mr. Illic and noted that there was cigarette smoke in the cab of the pickup. He asked Mr. Illic to clear the intersection. Mr. Illic did so at approximately 11 p.m.. Upon request, Mr. Illic produced his vehicle registration and insurance. While doing so, Mr. Illic fumbled with the documents, and his hands were shaking.

[19] Constable Duncan noted that Mr. Illic's eyes were glossy, and began to notice a slight odour of alcohol from Mr. Illic's breath. He asked Mr. Illic if he had been consuming alcohol and Mr. Illic responded by saying no, that he was a non-drinker. Constable Duncan believed that he had reasonable grounds to suspect that Mr. Illic had alcohol in his body, and he demanded that Mr. Illic provide a sample of his breath into an approved screening device at 11:12 p.m. He had Mr. Illic attend at the back seat of his police vehicle to do so. While walking to the police vehicle, Mr. Illic was unsteady on his feet. He followed the usual police procedures and demonstrated the device, and Mr. Illic provided a suitable sample at 11:16 p.m., which registered a fail reading. The more that he interacted with Mr. Illic, the stronger the odour of alcohol from his breath became.

[20] Constable Duncan then believed that Mr. Illic had been committing an offence under section 253(1)(b) as a result of the consumption of alcohol. He arrested Mr. Illic for that offence at 11:17 p.m.. As part of following the usual police procedure, he read a demand for a breath sample into an approved instrument. A City of St. Thomas police officer attended the scene and made arrangements to have Mr. Illic's vehicle dealt with by tow truck. At 11:24 p.m., he left the scene with Mr. Illic to travel to the Elgin OPP detachment. He arrived at 11:40 p.m., lodged Mr. Illic in cells, and attempted to facilitate contact between Mr. Illic and his legal counsel of choice. Mr. Illic eventually spoke with duty counsel, and then was handed over to the Breathalyzer technician, Constable Sneddon, at 12:08 a.m. At 1:13 a.m. he fingerprinted Mr. Illic, served him with a number of documents, and released him at 1:36 a.m.

[21] In cross-examination, he indicated that Mr. Illic's responses to questions were delayed, but appropriate. At the point that he asked Mr. Illic to clear the intersection, he needed to speak further with Mr. Illic. There was a possibility that it could be a medical condition which was causing the driving patterns which have been described to him. Mr. Illic's denial regarding alcohol consumption did not accord with the smell of alcohol that he detected from Mr. Illic's breath. He ruled out the possibility of a medical issue after smelling alcohol on Mr. Illic's breath. He looked in Mr. Illic's vehicle with the assistance of his flashlight and did not see any alcohol. In his view, Mr. Illic was intoxicated, but not heavily intoxicated. The odour of alcohol from Mr. Illic's breath got stronger the more that he spoke with Mr. Illic.

[22] Constable Duncan testified that it was the fail result on the approved screening device which provided him with grounds to believe that Mr. Illic was committing an offence by operating a motor vehicle with more than the allowable limit of alcohol in his bloodstream. He arrested Mr. Illic pursuant to section 253(1)(b) because he did not believe that he had grounds to arrest him for impaired operation of a motor vehicle at that point. He did not actually form grounds to believe that Mr. Illic's ability to operate a motor vehicle was impaired by alcohol until the following day when he interviewed Jennifer Cappelli and received detailed information about the manner of driving which she observed.

Constable Angela Sneddon

[23] Constable Sneddon is an experienced OPP officer, and a qualified breath technician. On January 27 and 28, she was working night shift from 6 p.m. until 6 a.m.. She was in full uniform in a marked cruiser. She was dispatched to look for Mr. Illic's vehicle regarding a possible offence under section 253 of the Criminal Code.

[24] At 11:01 p.m., she received information over the radio related to the stop of Mr. Illic's vehicle. She attended, arriving at the scene at 11:03 p.m. Constable Duncan was at the scene speaking to a male who was later identified as Mr. Illic. Officers from the St. Thomas police department are also at the scene. At 11:15 p.m., Constable Duncan advised her that Mr. Illic had failed a breath test on an approved screening device, and had been arrested under section 253 of the Criminal Code. Constable Duncan advised Constable Sneddon that she would be required to conduct a breath test at the detachment.

[25] At 11:16 p.m., she departed the scene and traveled directly to the OPP detachment, arriving at 11:28 p.m.. She prepared the Intoxilyzer 8000 C and satisfied herself that it was in proper working order. She noted the arrival of Constable Duncan with Mr. Illic. She spoke with Mr. Illic, and noticed the odour of alcohol. She was present for part of a conversation with Mr. Illic regarding his wishes with respect to speaking with legal counsel. Those events took place between approximately 11:28 p.m., and 12:04 a.m. At 12:04 a.m., she was in the Constables' area of the detachment, and transferred a call to Mr. Illic from duty counsel.

[26] Constable Sneddon received information related to grounds for Mr. Illic's arrest from Constable Duncan. She also received information that Mr. Illic had been provided with the appropriate caution, right to counsel, and breath demand. At 12:14 a.m., Mr. Illic entered the breath room, and she advised him the room was audio and video recorded. She read the secondary caution to Mr. Illic, and the breath demand. She provided instructions to Mr. Illic as to how to provide a breath sample. Mr. Illic provided a suitable sample at 12:14 a.m. with a result indicating a blood-alcohol content of 147 mg of alcohol per 100 mL of blood. Immediately after the first sample was completed, she again noted the odour of alcohol from Mr. Illic's breath. Mr. Illic was coughing, with flushed face and glassy eyes. She characterized his speech as fair, and noted that he has a significant accent when speaking in English.

[27] Mr. Illic was returned to the cell in order to wait a period of 17 minutes before taking the second breath test. She observed his cell over video. Sixteen minutes after the first test, she noted that Mr. Illic was vomiting into the toilet in the cell. She attended the cell to check on Mr. Illic, offered him water, and flushed the toilet. She returned to the Constable area to wait another 15 minutes for the possible mouth alcohol to dissipate. After 15 minutes, she returned Mr. Illic to the breath room. At 12:47 a.m., he provided a suitable sample with a result indicating a blood-alcohol content of 141 mg of alcohol per 100 mL of blood. She returned custody of Mr. Illic to Constable Duncan, and advised him of the results.

Inger Bugyra

[28] Ms. Bugyra is a toxicologist with the Center for Forensic Sciences. She was qualified as an expert, and filed a report containing an opinion regarding impairment of Mr. Illic's ability to operate a motor vehicle arising from the projected blood-alcohol content. Her opinion was based upon the certificate of analysis of Mr. Illic's breath, which I was subsequently asked to disregard. Given that, her opinion is not a consideration in assessing impairment.

POSITIONS OF THE PARTIES

The Crown

[29] As indicated, during the course of submissions, the Crown invited the Court to find Mr. Illic not guilty on the charge under section 253(1)(b). The Crown submits that there should be a finding of guilty on the impaired driving charge pursuant to section 253(1)(a).

[30] The Crown submits that the evidence of Jennifer Cappelli and Michael Cappelli provides detailed evidence of a driving pattern which was extremely problematic and dangerous. The Crown submits that driving pattern is significant evidence of impairment of the ability to operate a motor vehicle. The evidence of Constable Duncan from the scene noted indicia of impairment by alcohol of the ability to operate a motor vehicle, which included the odour of alcohol from Mr. Illic's breath, fumbling with documents that were requested to be produced, glossy eyes, and some unsteadiness on the part of Mr. Illic. Constable Sneddon confirmed the odour of alcohol from Mr. Illic's breath, and glassy eyes. The fact that Constable Duncan did not believe at the roadside that he had grounds to arrest Mr. Illic for impaired driving is immaterial. The Court must consider all of the evidence tendered by the Crown, including the detailed evidence of the two eyewitnesses to Mr. Illic's driving pattern. That evidence was not available to Constable Duncan at the roadside.

[31] The Ontario Court of Appeal confirmed in R. v. Stellato, [1993] O.J. No. 18 (C.A.), that any degree of impairment of the ability to operate a motor vehicle constitutes the offence. Based upon the totality of the evidence, the Crown has proven the defence of impaired driving.

The Defence

[32] The defence position is that the Crown has failed to meet the burden of proof due to the lack of any connection between the erratic driving observed by the civilian witnesses, and impairment by alcohol of the ability to operate the motor vehicle. At the scene of the vehicle stop, Constable Duncan noted some signs of alcohol consumption, but did not form grounds to believe that Mr. Illic was committing an offence until after the failure test result on the approved screening device. That gave him grounds to lay a charge under section 253 (b) of the Criminal Code. He did not form a belief that he had grounds to lay a charge of impaired driving under section 253 (a) until the following day when he took a statement from Jennifer Cappelli. The evidence related to the consumption of alcohol is limited, and is not connected through evidence to the acknowledged erratic driving of Mr. Illic, or the issue of impairment of the ability to operate a motor vehicle.

APPLICABLE LEGAL PRINCIPLES

[33] The Crown must prove all elements of any criminal offence beyond a reasonable doubt in order to obtain a conviction.

[34] It is an offence to operate a motor vehicle while one's ability to operate the vehicle is impaired by alcohol or a drug. Impairment of driving ability is a matter of fact that must be proved beyond a reasonable doubt. In order to constitute an offence, impairment does not have to reach any particular level. Evidence which establishes any degree of impairment of the ability to operate a motor vehicle by alcohol or a drug is proof of an offence.

[35] No single test or observation of impairment, standing alone, is conclusive. Impairment of one's ability to drive is generally understood as meaning the alteration of one's judgment and a decrease in one's physical abilities. Proof can take many forms. Any circumstance that relates to driving ability may be considered, including: balance, comprehension, coordination, fine motor skills, judgment, physical movement, reaction times, vision and alcohol or drug consumption. Evidence of the pattern of driving is relevant. A judge is not to consider each item of evidence in isolation. The totality of the evidence must be examined to determine whether the Crown has proven the impairment.

[36] Where it is necessary to prove impairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof is met. To that extent, the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the standard of proof that the ability to drive is actually impaired. Where the evidence indicates that an accused's ability to walk, talk and perform basic tests of manual dexterity was impaired by alcohol, the logical inference may be drawn that the accused's ability to drive was also impaired. The Crown must show that, considering all of the evidence heard, there can be no other reasonable conclusion than that the driver's ability to drive was impaired by alcohol or a drug.

[37] Non-expert witnesses may give opinion evidence as to impairment. Expert evidence must be taken together with all of the other evidence in considering whether the charge of impaired driving has been made out.

[38] Police are empowered to investigate drivers for drinking and driving offences both under the common law and provincial legislation. There are limits on the right to counsel at the roadside in drinking and driving investigations. Those limits are made reasonable by the fact that evidence which the police obtain under compulsion at the roadside by way of statements and testing is admissible only to show reasonable grounds, and may not be used to incriminate the accused at trial. This limitation applies only to compelled evidence, and not to police observations of various signs of impairment.

ANALYSIS

[39] The evidence in this case provided detailed observations of Mr. Illic's operation of his motor vehicle for a period of approximately 40 minutes. During that time frame, the evidence shows that he consistently drove in an erratic fashion. In particular, the evidence describes an inability to control the movements of the vehicle in terms of appropriate lane changes, distance between vehicles, and maintaining his position in a lane of traffic. At one point, in the city of St. Thomas, while making a turn at an intersection, he actually left the roadway and mounted the curb, and at one point was at least 10 feet off of the roadway before correcting and returning to the roadway. I find that his operation of the motor vehicle was a dramatic deviation from normal operation, and was consistent over a lengthy period of time. The operation of a motor vehicle, with that degree of deviation from the norm, over that length of time, strongly indicates that Mr. Illic's ability to operate his vehicle was impaired.

[40] When Constable Duncan initially came into contact with Mr. Illic, he immediately blocked Mr. Illic's vehicle from moving ahead. After brief conversation, he asked Mr. Illic to move his vehicle out of the intersection. At that stage, given the information which he had, that may seem odd. After Mr. Illic appropriately parked his vehicle, Constable Duncan noted glossy eyes and a slight odour of alcohol from Mr. Illic's breath. Mr. Illic fumbled with the documents which he was required to produce, and his hands were shaking. At that point, Constable Duncan did not feel that he had grounds to make an arrest under section 253, but he did believe that he had grounds to make a demand for a sample of breath into an approved screening device. He administered the approved screening device test. While walking to his police vehicle with Mr. Illic, he noticed that Mr. Illic was unsteady on his feet. He also noted that Mr. Illic's responses to questions were delayed, but appropriate. He believed that Mr. Illic was intoxicated, but not heavily intoxicated. The odour of alcohol from Mr. Illic's breath got stronger the more they spoke.

[41] Constable Sneddon observed Mr. Illic to have a flushed face with glassy eyes. She noted the odour of alcohol from his breath.

[42] I am mindful of the evidence of Constable Duncan that, at the point that he made the approved screening device demand, he did not believe that he had grounds to arrest Mr. Illic for impaired driving. At that point, he had limited information related to the observations of the witnesses to Mr. Illic's driving. Constable Duncan made additional observations related to indicia of impairment shortly after making the demand related to the approved screening device. In any event, the issue of whether or not the Crown has proven impairment in this case does not depend upon Constable Duncan's belief as to reasonable grounds.

[43] Various authorities cited by the Crown confirm that regardless of the opinion held by an arresting officer, a trial judge must consider all of the evidence before the court in order to determine whether the Crown has met the burden of proof. It is the weight of the whole body of evidence which determines whether the offence is made out. Those authorities include the decisions of the Ontario Court of Appeal in R. v. Martin, [2006] O.J. No. 4602; the Saskatchewan Court of Appeal in R. v. Wilson, [2013] S.J. No. 711; and the Ontario Superior Court of Justice in R. v. Patterson, [2006] O.J. No. 919.

CONCLUSIONS

[44] As indicated, given the scope of the deviation from normal driving pattern observed by the civilian witnesses, and the indicia of impairment related to alcohol observed by the two police officers, I am of the view that the Crown has proven impairment of the ability to operate a motor vehicle by alcohol beyond a reasonable doubt. There will be a finding of guilt with respect to the charge under section 253(1)(a) of the Criminal Code.

Released: July 9, 2015

Signed: "Justice A. Thomas McKay"