Court File and Parties

Court File No.: Old City Hall

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Nishan Minhas

Before: Justice John M. Ritchie

Heard on: Five days between February 13, 2014 and July 28, 2015

Reasons for Judgment released: October 23, 2015

Counsel:

• M. Goldenberg, counsel for the Crown
• S. Price, counsel for the accused Nishan Minhas

RITCHIE J.:

The Charges

[1] Nishan Minhas is accused that, on December 16, 2012 in Toronto, he operated a motor vehicle while his ability to do so was impaired by alcohol and while his blood-alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood.

Crown's Evidence

[2] The Crown's evidence can be briefly summarized. At approximately 9:50 p.m. on December 16, 2012, Officer Steven Aguiar of the Toronto Police stopped Mr. Minhas' vehicle at a RIDE spot-check on York Street, south of Front Street, in Toronto. The officer detected a strong odour of an alcoholic beverage on Mr. Minhas' breath and observed some indicia of impairment by alcohol. The defendant was breath tested on an approved screening device, and the device registered a "fail" reading. Officer Aguiar testified that he then arrested Mr. Minhas for "impaired operation" and "over 80 milligrams operation".

[3] Officer Aguiar read Mr. Minhas his rights to counsel and made a demand for breath testing on an Intoxilyzer. At the police station, the defendant consulted with his lawyer of choice and then provided the required breath samples. His breath test readings were 200 milligrams and 190 milligrams of alcohol in 100 millilitres of blood.

Defence Evidence

[4] Nishan Minhas testified that he had been socializing and drinking with a colleague on December 16, 2012. Mr. Minhas said that he had been drinking red wine and that he had consumed "a couple of bottles all day". Mr. Minhas said that he was not feeling the effects of alcohol and that he was not evidencing the indicia of impairment that Officer Aguiar had described. Mr. Minhas said that it was not raining, he drove normally, he produced his driver's licence without any difficulty, he was not unsteady on his feet, he was not dazed and his eyes were not half-closed. He conceded that it was possible he had struck the pylon when he pulled up, but he did not recall.

[5] Mr. Minhas testified that Officer Aguiar did not ask him whether he had consumed a drink in the previous 15 minutes. The defendant said that the officer told him he was under arrest for impaired driving, but the officer did not mention "over 80 milligrams operation".

[6] Sam Saravanamuthu corroborated part of Mr. Minhas' testimony. Mr. Saravanamuthu, who works for the defendant, said that he had spent the day in question with Mr. Minhas. The two men had attended a basketball game in the afternoon and then had dinner at a restaurant. They had met at about 1:00 p.m. and split up at about 9:15 p.m. or 9:30 p.m. Both men had consumed 3 or 4 glasses of red wine (or possibly more) at the Raptors game. Mr. Saravanamuthu said that they had probably consumed one bottle of red wine at dinner. When pressed on the point, he said "one or two [bottles], I don't remember".

[7] Mr. Saravanamuthu confirmed that Mr. Minhas "didn't look drunk to me". He was walking straight, his eyes were not unusual and they had discussed business without any difficulty.

Trial Issues

[8] The trial continued over five days, beginning February 13, 2014 and ending on July 28, 2015. The defence raised eight major issues, some of which are interrelated and overlapping. Briefly, the issues are:

1. Whether Officer Aguiar had reasonable and probable grounds to arrest Mr. Minhas and demand that he provide breath samples for Intoxilyzer testing.

2. Whether Officer Aguiar erred and acted improperly and violated Mr. Minhas' constitutional rights by demanding and administering an approved screening device test.

3. Whether the result of Mr. Minhas' breath testing on an approved screening device was potentially unreliable because of a "mouth alcohol" issue.

4. Whether Officer Aguiar's knowledge respecting breath testing on an approved screening device was so deficient that the result was unreliable and amounted to an unreasonable seizure of Mr. Minhas' breath sample.

5. Whether Officer Aguiar's testimony was not credible nor reliable in light of the alleged inadequacy of his note-taking.

6. Whether Mr. Minhas' rights under sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms were infringed.

7. Whether the evidence proves beyond a reasonable doubt that Mr. Minhas' ability to operate a motor vehicle was impaired by alcohol.

8. Whether all evidence following the vehicle stop should be excluded under subsection 24(2) of the Canadian Charter of Rights and Freedoms.

Preliminary Remarks

[9] I want to thank Mr. Price (for the defence) and Ms. Goldenberg (for the Crown) for their co-operative, reasonable and professional approach to this case. They are both a credit to the legal profession.

[10] Counsel gave me an abundance of case law, which was very helpful, and I have considered it carefully. The case law gave useful guidance with respect to applicable principles of law. In the final analysis, of course, each case turns on its own facts.

The Mouth Alcohol Issue

[11] With respect to the count alleging "over 80 milligrams operation", the defence submitted that Mr. Minhas' rights under sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms were violated. It was submitted that Officer Aguiar failed to ascertain whether Mr. Minhas had consumed alcohol in the previous 15 minutes and, as a result, the test on the approved screening device might be inaccurate. The defence relied in particular on the decision of Mr. Justice Durno in R. v. Mastromartino et al., [2004] O.J. No. 1435.

[12] Officer Aguiar testified that he had asked about recent consumption, that Mr. Minhas had said "no", and that the officer had accepted that answer. Mr. Price submitted that I should reject the officer's testimony as being inconsistent, unreliable and not credible. I do not agree, and I will return to that issue. Mr. Minhas testified that he was never asked about recent consumption. For the reasons I have given elsewhere, I reject Mr. Minhas' testimony as being wholly unreliable.

[13] There are some similarities between the facts of the present case and those in Mastromartino, but there are also some significant differences, which leads me to distinguish that decision. In Mastromartino, the defendant admitted to the police officer that he had been consuming alcohol (Mr. Minhas told Officer Aguiar that he had had nothing to drink). Also, the defendant in Mastromartino was driving out of a plaza that contained a bar, and the arresting officer assumed that the defendant had come from the bar (there was nothing that indicated recent consumption on the part of Mr. Minhas). Also in Mastromartino, the trial judge had rejected the officer's testimony that he had asked about recent consumption (I accept Officer Aguiar's testimony on that issue).

[14] I note in passing that there was no reliable evidence that Mr. Minhas had consumed any alcohol in the previous fifteen minutes. The evidence respecting the length of time between Mr. Minhas leaving the establishment and starting to drive his vehicle was unclear. In that connection, Mr. Saravanamuthu said something about "going to the subway line … then he went to the parking". Apart from the fact that neither Mr. Minhas nor Mr. Saravanamuthu gave reliable testimony, it is entirely unclear as to how much time passed between Mr. Minhas' last drink and his breath test on an approved screening device.

[15] It is not necessary for me to delve further into the mouth alcohol issue, but I will address a sub-issue that was fully canvassed at trial. It is my view that Officer Aguiar was not required, in the circumstances of the present case, to ask about recent consumption. There were no factors that would put a police officer on notice regarding the "mouth alcohol" issue. A strong odour of an alcoholic beverage on Mr. Minhas' breath and the existence of bars in the area are not indicators of recent consumption. Further, Mr. Minhas had denied that he had consumed any alcohol at all. In my view, it is absurd to suggest that Officer Aguiar would have violated Mr. Minhas' constitutional rights if the officer had failed to ask Mr. Minhas whether he had consumed any alcohol in the previous 15 minutes. Mr. Minhas had already answered that question. As I have mentioned, there were no factors that suggested recent consumption (unlike Mastromartino).

[16] In the case of R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579, Ducharme J. concluded that "as in Bernshaw and Einarson, it is wholly speculative to assert that the result of the ASD [approved screening device] test was unreliable due to the presence of mouth alcohol". That ruling applies also to the present case, in my opinion.

Officer's Note-Taking

[17] The defence focused on the alleged inadequacy of Officer Aguiar's note-taking and submitted that his testimony should be rejected. For example, the officer had not made a note that he asked Mr. Minhas about recent consumption. Also for example, the officer had made a note that he arrested Mr. Minhas for impaired driving and did not note the alleged "over 80" offence as well (although he testified that Mr. Minhas was arrested for both offences).

[18] The defence relied on decisions such as that of my learned colleague Justice Duncan in R. v. Zack, [1999] O.J. No. 5747, where inadequate note-taking by police officers led to the rejection of oral testimony. Justice Duncan concluded that the omission of one or more significant indicia of impairment from the officer's notes was so serious as to cast doubt on the reliability of his testimony.

[19] It must be remembered that a police officer's notes are not evidence. They are an aide memoire. There is no requirement that the notes achieve literary perfection. It must also be remembered that the officer's testimony is evidence.

[20] I would distinguish R. v. Zack (supra) and cases of that nature. In my opinion, the alleged flaws in Officer Aguiar's notes were inadvertent and amount to relatively minor omissions, in the circumstances of the case. I note also that Officer Aguiar's testimony was not contradicted by his notes, nor was his testimony inconsistent with them. The omissions do not reflect negatively on the credibility or the reliability of Officer Aguiar's testimony, in my view.

Adequacy of the Roadside Breath Test

[21] The defence submitted that Officer Aguiar's knowledge of how to conduct a breath test on an approved screening device was deficient and that he could not reasonably rely on the result. Therefore, section 8 of the Charter of Rights was breached, and the evidence of the breath testing should be excluded.

[22] The defence relied on a recent decision of my learned colleague, Justice Shamai, in the case of R. v. Kinnear, [2015] O.J. No. 2703. Justice Shamai concluded that the "fail" result on a breath test conducted by Officer Pelletier was not reliable for a number of reasons. Justice Shamai made a finding respecting the officer's "apparent ignorance of every aspect of procedures and practice concerning the obtaining of ASD [approved screening device] samples".

[23] The defence relied also on the decision of Ducharme J. in R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579. In that case, the police officer admitted at trial that he did not know if he was using the approved screening device properly. The trial judge recognized at paragraph 40 that "the officer really had no idea how to use the device". Ducharme J. confirmed at paragraph 53 that the police officer "clearly did not know" how to use the device.

[24] Suffice it to say that the case before me is very different from the two cases cited. Officer Aguiar was cross-examined at pages 79 to 91 of the February 13, 2014 transcript and pages 10 to 13 of the February 18, 2014 transcript regarding his knowledge of how an approved screening device works. The officer said that Mr. Minhas' first blow was too short, that the device showed an "error" message and that he re-set the device. On Mr. Minhas' second attempt, he provided "a good sample for an analysis … the device beeped three times and the word 'fail' came across the screen". The officer also said that "if there is any malfunction, as a result of anything, I would expect an error code". Officer Aguiar had been asked a lot of speculative questions related to possible radio or cell phone interference with the proper working of the approved screening device. The officer said that he knew about interference and that he would have asked any officer who might have been transmitting to stop. In terms of what Officer Aguiar needed to know regarding how to conduct a test on an approved screening device, I find that his knowledge was good.

[25] In my opinion, Officer Aguiar was in full compliance with the dictates laid down by the Supreme Court of Canada in R. v. Bernshaw, 95 C.C.C. (3d) 193. The Court held at paragraph 80 that "where the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary". There was no such evidence in the case before me. Further, the appellate courts have been clear that a police officer does not have to understand the workings of an approved screening device. As Justice Durno stated in R. v. Mastromartino, [2004] O.J. No. 1435, at paragraph 78, "an officer may administer a screening device notwithstanding he or she is unfamiliar with the intricacies of the screening device". The case of R. v. Morton, [2009] O.J. No. 4370, is also instructive. In that case, the police officer did not know when the approved screening device was last calibrated. Mulligan J. held that "officers are not required to have a detailed knowledge of how the device works" and "there was no evidence before the trial judge that the device was not working properly".

[26] A police officer is only required to have the minimal knowledge that is necessary to conduct a proper breath test. Officer Aguiar certainly met that standard, in my opinion. Further, the officer believed that the device was in proper working order, and he was entitled to rely on it.

Reasonable and Probable Grounds for the "Impaired Driving" Arrest

[27] The defence submitted that Officer Aguiar did not have reasonable and probable grounds to arrest Mr. Minhas for impaired driving (and to make the demand for the provision of breath samples under subsection 254(3) of the Criminal Code). It was also submitted that Officer Aguiar breached Mr. Minhas' section 8, 9 and 10(b) Charter rights when he required the defendant to provide a breath sample into an approved screening device.

[28] Officer Aguiar testified that he had the following grounds for an impaired driving arrest:

1. Mr. Minhas had a strong odour of an alcoholic beverage on his breath.

2. The weather was cold and slightly raining, and Officer Aguiar thought it was odd that Mr. Minhas was driving with the driver's window down and the sunroof open.

3. Mr. Minhas' eyes were half-closed, he had a droopy, lethargic look on his face and he had a slumped-over posture.

4. When Officer Aguiar directed Mr. Minhas to pull into the safety lane, the defendant drove very slowly, gingerly and deliberately, and his right rear tire struck a pylon. The officer indicated that it was a large opening and a driver who had not been drinking could do it easily. The officer said that Mr. Minhas drove slower than other drivers normally do when they're pulling into that area.

5. When Officer Aguiar asked Mr. Minhas for his driver's licence, there was a pause while the defendant recovered his thoughts and realized where his driver's licence was. The defendant was slow about producing his driver's licence from his briefcase.

6. Mr. Minhas stepped out of his vehicle very slowly, stood up and took a second or two to recover his balance. The officer said that Mr. Minhas swayed, caught his balance and was then able to walk.

7. Mr. Minhas appeared dazed when Officer Aguiar was instructing him on how to use the approved screening device. However, the defendant followed instructions and appeared to understand them.

8. Mr. Minhas' eyes were red, glassy and half-closed.

9. Officer Aguiar believed, based on the totality of his observations of Mr. Minhas and his driving, that the defendant's ability to operate a motor vehicle was impaired by alcohol.

[29] I accept Officer Aguiar's evidence regarding what he referred to as his "nine grounds", for reasons that I have addressed in more detail elsewhere in this decision.

[30] Officer Aguiar was inconsistent in his testimony regarding when he had reasonable and probable grounds to arrest Mr. Minhas for impaired driving. He said that he had the grounds before the approved screening device test and also that he did not have the grounds until after the approved screening device test. Mr. Price is a highly skilled and knowledgeable counsel, probably one of the best in Canada in drink/drive matters, and Officer Aguiar's confusion was understandable, in my opinion. However, I believe that Mr. Price's questioning also helped the officer to clarify his thinking, and what had happened eventually became clear. Officer Aguiar testified that he made the approved screening device demand because he wanted to be sure that Mr. Minhas was impaired by alcohol and was "over 80". Officer Aguiar further testified that the "fail" reading on the approved screening device "confirmed" his belief that the defendant was impaired by alcohol. The officer said that the reading was not one of the grounds for his belief, but the reading supported the "nine grounds" that he had observed, noted and testified to. Officer Aguiar gave an honest explanation for his actions, in my opinion.

[31] After Officer Aguiar had observed and noted what he referred to as his "nine grounds" for believing that Mr. Minhas was impaired by alcohol, the officer was entitled, in my view, to continue his investigation and explore the possibility of an "over 80" charge. There is no requirement that a police officer must arrest a suspect the moment the officer feels they have grounds to do so. Also, in the circumstances Officer Aguiar was empowered by the Criminal Code to demand that Mr. Minhas undergo an approved screening device test (because the officer had a reasonable suspicion that Mr. Minhas had alcohol in his body). In my opinion, there was no breach of sections 8 and 9 of the Charter of Rights. Also, I do not agree with the defence submission that the section 10(b) right to be informed of and given the opportunity to consult counsel was triggered by the circumstances.

[32] In addition, Officer Aguiar candidly stated that he wanted information on Mr. Minhas' blood-alcohol level because it could have some impact on how he dealt with the impaired driving issue. That was a legitimate perspective and a reasonable avenue of inquiry, in my opinion. It cannot be argued that the blood-alcohol level of a suspected impaired driver is a completely irrelevant consideration in an impaired driving context. Parliament obviously considers "over 80 milligrams" to be "too much alcohol for safe driving", since it has legislated that blood-alcohol level as a criminal offence which carries the same penalty as for impaired driving. The Kienapple decision also dictates that a person cannot be convicted of both impaired driving and "over 80 milligrams operation" because of the significant overlap between the two offences. I note further that an approved screening device test might result in a second charge, so it makes sense to me that Officer Aguiar continued his investigation by conducting an approved screening device test.

[33] As it turned out, the approved screening device gave a "fail" reading, and Officer Aguiar felt "confirmed" in his view that the defendant's ability to operate a motor vehicle was impaired by alcohol. The officer was aware that the "fail" reading was not a ground for an impaired driving arrest.

[34] In my view, there is nothing improper about the way Officer Aguiar proceeded in this case and his opinions and beliefs were not invalid or problematic. I do not agree with the defence submission that Officer Aguiar acted improperly by "using the approved screening device to check impairment" and that the officer breached Mr. Minhas' section 8, 9 and 10(b) Charter rights when he conducted the approved screening device test. Officer Aguiar had the lawful power to do so, the time involved was negligible and (as it turned out) the "fail" reading justified an arrest on a second charge.

[35] The Ontario Court of Appeal acknowledged in R. v. Coutts, [1999] O.J. No. 2013, that a police officer may use an approved screening device to confirm a driver's impairment. The Court at paragraph 20 made reference to "where a roadside test is being used … for the purpose of confirming or rejecting a police officer's suspicion that a motorist might be impaired or over the legal limit". The Court was focused on an "evidence to the contrary" issue, and the comment might be regarded as obiter dicta, but it makes eminent sense to me, and I adopt it.

[36] I carefully reviewed three decisions that were relied upon by the defence: R. v. Gruythuyzen, [2013] O.J. No. 1682; R. v. Perrie, [2013] O.J. No. 3485; and R. v. Dignum, [2012] O.J. No. 5074. In Gruythuyzen, a police officer used an approved screening device to rule out impairment by drugs. In Perrie, the trial judge found that a police officer had grounds to arrest a suspect for impaired driving and that the use of an approved screening device was a section 8 Charter violation in the circumstances. In Dignum, there was a similar Charter violation, because the police officer said that he suspected the driver was impaired by alcohol, rather than that he suspected the driver had alcohol in his body. The Dignum decision was upheld on appeal in the Superior Court of Justice on the specific ground that the police officer did not explain the meaning of an "F" reading on the approved screening device.

[37] To the extent that the decisions of my colleagues may differ from mine regarding the use of approved screening devices, I respectfully disagree with their conclusions. However, I believe that the decisions are distinguishable, since the issues before those Courts were different from the issues in the case before me.

[38] Officer Aguiar had his "nine grounds" for an impaired driving arrest before Mr. Minhas took the approved screening device test, and the officer ultimately made a decision to arrest Mr. Minhas for that alleged offence. The officer's decision to employ an approved screening device as an investigative tool was lawful and proper in the circumstances of the case.

[39] From the subjective standpoint, Officer Aguiar stated his belief that he had the requisite reasonable and probable grounds. As my above analysis indicates, I disagree with the defence submission that the officer had doubts about Mr. Minhas' impairment and that he in reality based his decision to arrest Mr. Minhas for impaired driving on the "fail" result from the approved screening device test.

[40] From the objective standpoint, the Ontario Court of Appeal has given direction on a number of occasions. In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, at paragraph 48, the Court stated that "the test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol".

[41] The decision of the Ontario Court of Appeal in R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490, is also highly instructive. The law is spelled out in very clear terms, and the following conclusion of the Court has application to the present case: "In my view, these facts are sufficient, at law, to objectively support the officer's subjective belief that the appellant was driving while impaired by alcohol. The fact that some of the traditional indicators of impairment, such as slurred speech and bloodshot eyes, were not present does not render the officer's subjective belief, based on the signs he did observe, objectively unreasonable. As a result, I would find that the officer had reasonable and probable grounds to make the arrest and make the breath demand and that the appellant's Charter claim must therefore fail."

[42] The Ontario Court of Appeal in R. v. Bush (supra) also made some observations at paragraphs 55 to 58 that are pertinent. Mr. Price cross-examined extensively with regard to each of Officer Aguiar's observations respecting indicia of impairment and suggested that each of those observations was meaningless and indicative of nothing. I take the opposite view. For example, I agree with Mr. Price that just because a person is not smiling, it does not mean that they are impaired – however, that does not undermine or negate Officer Aguiar's significant observation that Mr. Minhas had a droopy look on his face, with half-closed eyes and a slumped-over posture. Also for example, it is true that some people might not mind a few drops of rain or a falling mist, and they might not put up an umbrella or close the sunroof on their vehicle. However, given the weather on December 16, Officer Aguiar thought that the lowered driver's window and the open sunroof were strange and were consistent with the consumption of too much alcohol. That makes sense to me.

[43] The Court in R. v. Bush stated: "In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation … An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test … The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information … That there might be another explanation for some of the factors the officer properly took into account in forming his opinion of impairment to drive did not eliminate the indicia or render them unreliable."

[44] I have no hesitation in concluding that the nine factors I listed above, when considered in combination, easily satisfy the objective test referred to in the Bush and Wang decisions. Officer Aguiar had carefully noted Mr. Minhas' signs of impairment, in detail and without exaggeration. The officer's "nine grounds" were solid. The defendant was arrestable for impaired driving.

[45] I conclude that Officer Aguiar had the requisite reasonable and probable grounds and that the impaired driving arrest and the Intoxilyzer demand were lawful and proper.

[46] As I have indicated, Officer Aguiar testified that he arrested the defendant for both "impaired operation" and "over 80 milligrams operation". I accept his testimony that he arrested Mr. Minhas on the two charges. Although only the "impaired operation" charge was mentioned in the officer's notes, it makes complete sense (as the officer pointed out) that he would also arrest the defendant for "over 80 milligrams operation", since the defendant had just failed the roadside breath test. Mr. Minhas said that Officer Aguiar did not mention "over 80 milligrams operation" when he arrested him, but I do not accept the defendant's version of events. In my view, Officer Aguiar's testimony was credible and reliable.

[47] According to the defence submissions, Officer Aguiar was in a "lose-lose" situation. The officer had no power to arrest Mr. Minhas for impaired driving and testing Mr. Minhas on an approved screening device was a violation of his constitutional rights. That leaves Officer Aguiar in a strait-jacket and requires him to ignore the fact that Mr. Minhas had been consuming alcohol and possibly a lot of alcohol. I have indicated my disagreement with the defence position that Officer Aguiar's evidence was unreliable and not credible and that he had improper motivations (in particular, with respect to the use of the approved screening device). Quite simply, Mr. Minhas' constitutional rights were not violated.

[48] It is my conclusion that the testimony of both Mr. Minhas and Mr. Saravanamuthu was highly unreliable. They had consumed a large, unknown quantity of red wine. It is not believable that Mr. Minhas was not feeling the effects of alcohol. I cannot accept the word of two men who had consumed such a quantity of alcohol that Mr. Minhas was OK to drive, not showing any signs of impairment and not feeling any effects from the alcohol. Also very significantly, those assertions are directly and decisively contradicted by the convincing and compelling testimony given by Officer Aguiar. I reject the testimony of Mr. Minhas and Mr. Saravanamuthu as being unreliable (including Mr. Minhas' assertions regarding what Officer Aguiar said or didn't say to him).

[49] I conclude that there were no breaches of sections 8, 9 and 10(b) of the Charter of Rights, and the Charter motion is dismissed.

The Impaired Driving Count

[50] I am turning now to the question as to whether the evidence proved beyond a reasonable doubt that Mr. Minhas' ability to operate a motor vehicle was impaired by alcohol.

[51] The law respecting degrees of impairment has been stated by the Ontario Court of Appeal on a number of occasions. I refer to the Court's decision in the case of R. v. Moreno-Baches, 2007 ONCA 258, [2007] O.J. No. 1314, paragraph 2, where the Court held as follows: "Suffice it to say that this court's decision in R. v. Stellato … remains the law in Ontario. That is to say, if there is sufficient evidence before the court to prove that an accused person's ability to drive is even slightly impaired by alcohol, the judge must find the accused guilty."

[52] In the present case, the evidence of impairment by alcohol is set out in points (1) to (9) on pages 10 and 11 above (Officer Aguiar's grounds for the arrest). In addition, Officer Aguiar observed that Mr. Minhas was unsteady on his feet when he walked down a hallway after his first test on the Intoxilyzer. The defendant had an unsteady walking gait and was not walking in a straight line. The officer's testimony on those matters was not shaken on cross-examination, in my opinion. Further, the officer observed that Mr. Minhas' eyes were "increasingly bloodshot", that is, increasingly bloodshot from the time that the officer had first observed the defendant at the roadside. There is no question that Mr. Minhas was not showing pronounced signs of impairment by alcohol. However, considered in its totality, the evidence establishes that the defendant's ability to operate a motor vehicle was more than slightly impaired by alcohol.

Conclusions

[53] In light of my dismissal of the Charter motion, it is not necessary to address the submissions respecting subsection 24(2) of the Charter of Rights. However, if I were required to do so, it will be obvious from my analysis that I would not take the view that the defendant's Charter-protected interests were significantly infringed by Officer Aguiar or that any evidence should be excluded.

[54] I considered Mr. Minhas' testimony in the context of the evidence as a whole, in accordance with the second step of the ruling in R. v. W.D. The defendant's testimony does not leave me with a reasonable doubt.

[55] The onus in a criminal prosecution never shifts to the defendant under any circumstances. At all times, the burden rests solely on the Crown to prove all elements of the offences beyond a reasonable doubt. If a reasonable doubt exists at any time, the defendant must be acquitted.

[56] I have considered carefully the totality of the evidence, the submissions of Counsel and the case law that was provided to me. I am satisfied that the Crown has discharged the burden upon it. There will be findings of guilty on both counts.

[57] Pursuant to the Kienapple decision, I am staying the "impaired driving" count.

Released: October 23, 2015

Signed: "Justice J. Ritchie"