Court File and Parties

Court File No.: Halton 1211 14-2067 Date: 2015-10-28 Ontario Court of Justice

Between: Her Majesty the Queen — AND — Marianne Motha

Before: Justice D.A. Harris

Heard on: June 1, 8, July 24, August 17, 2015

Reasons for Judgment released on: October 28, 2015

Counsel:

• Nick Chiera, for the Crown
• Irwin Z. Isenstein, for the defendant Marianne Motha

HARRIS J.: REASONS FOR JUDGMENT

INTRODUCTION

[1] Marianne Motha is charged with operating a motor vehicle in the Town of Milton on July 20, 2014 when:

1. her ability to operate a motor vehicle was impaired by alcohol, and
2. her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of her blood.

[2] Crown counsel elected to proceed summarily.

[3] Ms. Motha plead not guilty and a trial was held.

[4] Ms. Motha had applied for an order that all evidence of the results of any Intoxilyzer tests, and any observations of any alleged signs of impairment and any statements or utterances attributable to Ms. Motha should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

[5] Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the Charter application and to the trial.

[6] Pasqualino Spampinato, and Police Constables Pierre Saucier and Dwain Newham testified for the Crown. Ms. Motha and Georgina Gill testified on behalf of the Defence.

[7] There is no issue that Ms. Motha was operating her motor vehicle in Milton on July 20, 2014.

[8] The issues before me are:

1. whether the evidence referred to above should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms; and
2. whether the presumption set out in section 258(1)(c)(ii) of the Criminal Code does not apply since the breath tests were not conducted as soon as practicable; and
3. whether the Crown has proven beyond a reasonable doubt that Ms. Motha's ability to operate a motor vehicle was impaired by alcohol.

[9] More particularly with respect to the Charter application, counsel for Ms. Motha argued that the evidence should be excluded on the basis that the police did not have reasonable and probable grounds to arrest her or to make the breath demand, in violation of sections 8 and 9 of the Charter.

[10] I will deal with the Charter application first.

REASONABLE AND PROBABLE GROUNDS

[11] Counsel for Ms. Motha provided me with a number of cases dealing with the issue of reasonable and probable grounds. In one of these, R. v. Outri, Wakefield J. provided the following summary of the law:

Clearly, the legal test for Reasonable and Probable Grounds is not a high one. The test is more than a mere suspicion, and less onerous than a prima facie standard; it is a fact based analysis of the totality of the circumstances the arresting officer had in mind; the officer is entitled to disbelieve and disregard any evidence disbelieved; the officer must balance any circumstance detracting from the conclusion of impairment to those suggestive of impairment, and the totality of circumstances must be sufficient that a reasonable person in the position of the arresting officer would be able to conclude that reasonable and probable grounds existed.

The grounds need only amount to evidence of slight impairment by alcohol as opposed to gross impairment. There is no minimum time for the investigation, nor any mandatory minimum number of circumstances in order to amount to an objective review. I instruct myself not to engage in "the luxury of judicial reflection" nor engage in a dissection of each individual ground reviewed in isolation of each other.

[12] I fully agree with that summary of the law.

[13] Based on the following, I am satisfied that Constable Saucier did have reasonable and probable grounds to arrest Ms. Motha and to make the breath demand.

[14] Constable Saucier testified that he received a radio dispatch informing him that there was a possible impaired driver on Highway 401.

[15] That driver's vehicle was travelling at a high rate of speed, cutting off other vehicles and almost side-swiping some vehicles. Then the suspect vehicle had come to a complete stop on Highway 401 before driving on. It was being followed by a tow truck whose driver was providing the information to the police dispatcher.

[16] Moments later, a vehicle matching the description of the suspect vehicle drove by Constable Saucier. It was followed by a tow truck.

[17] Constable Saucier began to follow them, eventually positioning his vehicle behind the suspect vehicle. That vehicle then came to a stop in the left hand turn lane at a red light. It turned its right turn signal on. The tow truck driver pulled up on the right side of the police vehicle and spoke to Constable Saucier and a police cadet ride-along through their respective windows. He confirmed the identity of the suspect vehicle.

[18] Constable Saucier activated his emergency lights to stop the vehicle. The traffic light turned green. The vehicle proceeded through the intersection making a left turn before stopping right at the corner there.

[19] Constable Saucier followed and then stopped his vehicle. He got out and walked to the driver's side door.

[20] The driver, Ms. Motha, put her window down and immediately Constable Saucier could smell the smell of an alcoholic beverage coming from the inside of the vehicle. Ms. Motha was alone in the vehicle.

[21] Constable Saucier explained that there was a complaint about her driving and that he was doing a sobriety check. He asked for her driver's licence, proof of ownership and insurance. She gave him her driver's licence, an insurance slip and a photocopy of her insurance slip. Following further requests for her ownership papers, she finally found them in her purse and provided them to him.

[22] He noted that her eyes were red and glossy and that her eyelids were droopy. They looked tired.

[23] She told him that she had just come from a bar in Toronto and that she had consumed one beer and one vodka soda drink.

[24] Throughout this, Constable Saucier found her to "have a confused look on her face".

[25] He asked her to step out of her car and they had a brief conversation on the passenger side of her car.

[26] He observed that she was walking fine. She was not swaying or off balance or anything. Her speech seemed to be okay. He did not notice any slurred speech. He did smell the odour of an alcoholic beverage coming directly from her mouth.

[27] She was very cooperative with him.

[28] He described her as slow and methodical in walking and answering questions.

[29] He formed the opinion that her ability to operate a motor vehicle was impaired by the consumption of alcohol.

[30] There is no question that Constable Saucier did subjectively form the requisite belief.

[31] There is also no doubt in my mind that this belief was objectively reasonable.

[32] He took into account the factors that did not support the belief.

[33] On the other hand, he had the information from the police dispatch person describing driving that was not just bad, but also highly suggestive that the driver was impaired in some way.

[34] This was supplemented by his observation of her activating her right hand turn while in a left turn lane.

[35] He further noted the smell of an alcoholic beverage on her breath and received an admission of recent consumption of alcohol.

[36] He observed other "indicia" of impairment by alcohol such as red and glossy eyes, droopy eyelids, a confused look and some difficulty in providing all of the documents that he had requested.

[37] He admitted that at the time of forming his belief, he was also taking into account the fact that Ms. Motha had made a left turn before stopping rather than stopping immediately where she was when he activated his emergency lights. Upon reflection however he had decided that it would have been equally reasonable for her to proceed as she did.

[38] I agree fully with his revised position. I am also satisfied that even when this factor is excluded from an assessment of the objective reasonableness of his belief, there can be no doubt that his belief was objectively reasonable.

[39] Further, there was no obligation on Constable Saucier to interview the tow truck driver prior to forming his belief as to Ms. Motha's ability to operate a motor vehicle being impaired.

[40] The Charter application is dismissed.

[41] Exhibit A, being the Certificate of a Qualified Technician, will be entered then as Exhibit 10.

AS SOON AS PRACTICABLE

[42] In order for the presumption of identity, set out in section 258(1)(c)(ii) of the Criminal Code, to apply, the Crown must establish beyond a reasonable doubt that the breath tests were taken as soon as practicable.

[43] In that regard the Ontario Court of Appeal has stated clearly that "as soon as practicable" does not mean as soon as possible. It means that the tests must be taken within a reasonably prompt time.

[44] In deciding whether the tests are taken as soon as practicable I must look at the entire chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied reasonably. The Crown is obligated to demonstrate that in all the circumstances the breath samples were taken within a reasonably prompt time, but there is no requirement that the Crown provide a detailed examination of what occurred during every minute that the accused is in custody.

[45] Counsel for Ms. Motha argued that Constable Newham, the breath technician, took custody of Ms. Motha at 2:58 and that the first breath test was completed at 3:23. He argued that this unexplained 25 minute delay was fatal to the Crown's case.

[46] I disagree.

[47] Constable Newham testified to the following.

[48] He took custody of Ms. Motha at 2:52.

[49] There was a short delay as she asked to use the washroom.

[50] At 2:56 he read her rights to counsel to her. She did not wish to speak to counsel any further at that point.

[51] At 2:57 he read the secondary caution to her.

[52] At 2:58 he read the breath demand again so that she fully understood it.

[53] He then explained how the instrument worked. He explained what was expected from her.

[54] He explained that everything in the room was recorded and at that time he noted that he had an initial problem with the DVD. He repaired that.

[55] He then attempted to have Ms. Motha provide a sample of her breath into the instrument. There were numerous unsuccessful attempts. She had become upset. He attempted to work through the problem with her, both explaining and demonstrating what she was doing wrong. At one point he had to remove the mouthpiece to show her that she was not exhaling, that there was no air coming out. He was only successful in getting her to blow into the instrument such that they were able to get a suitable sample at 3:23.

[56] I am satisfied that Constable Newham explained in sufficient detail what had happened between 2:58 and 3:23. He did not have to break those events down further into a minute by minute account.

[57] I am satisfied that the tests were taken as soon as practicable.

THE OVER 80 OFFENCE

[58] In light of the above findings, I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Motha was operating a motor vehicle in the Town of Milton on July 20, 2014 when her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of her blood, and I find her guilty of that offence.

WAS HER ABILITY TO DRIVE IMPAIRED BY ALCOHOL?

[59] The three Crown witnesses all were of the opinion that Ms. Motha's ability to drive was impaired by alcohol and testified as to why they believed that.

[60] Ms. Motha and Georgina Gill both testified to the contrary.

[61] It is therefore necessary for me to summarize that contradictory evidence.

Pasqualino Spampinato

[62] Pasqualino Spampinato was working as a tow truck driver that night. He heard on his police scanner that a black Lexus was being driven by a possibly impaired driver and that the Lexus was being followed by a brown minivan. He then waited on an entrance ramp to Highway 401 until two vehicles meeting that description drove by and then he began to follow them.

[63] He described the Lexus as weaving from lane one to lane two and then to lane three and back again. At one point it almost struck the guardrail. At other times it came close enough to other vehicles that they took evasive action to avoid a collision. There were no turn indicator lights during any of these moves.

[64] As they approached Winston Churchill Boulevard, the Lexus came to a complete stop in lane two. The brown minivan then stopped on the right shoulder and Mr. Spampinato stopped his tow truck behind the Lexus and activated the flashing lights on the truck. They remained there for approximately 30 seconds before the Lexus took off again. Mr. Spampinato continued to follow it.

[65] He testified that he concluded early on that the driver of the Lexus was impaired by something, including possibly a medical condition. Over time, he concluded that the driver must be impaired by alcohol.

[66] As they approached James Snow Parkway, the Lexus suddenly activated its right turn indicator and then flew from lane one across lanes two and three and one lane of the ramp, where it almost collided with a tractor trailer before proceeding along the ramp to a red light at James Snow Parkway. It stopped there until the light changed to green and then turned left onto James Snow Parkway and followed that road to Derry Road where it turned right. It then proceeded westbound on Derry Road until it reached Thompson Road.

[67] During this time, the Lexus was occasionally weaving within its lane. At times the right turn signal was flashing for an extended period and the vehicle never changed lanes or made a right hand turn. The Lexus did stop for all red lights.

[68] Mr. Spampinato activated a dash camera in his truck during one of these stops between the Highway 401 and Derry Road. I will say more about the resultant video later in my reasons.

[69] Constable Saucier's police cruiser passed Mr. Spampinato just before they reached Thompson Road and the police car pulled in behind the Lexus which stopped in the left turn lane for a red light. Mr. Spampinato pulled up on the right side of the cruiser and spoke to the police officers. He then waited until the Lexus and the police car turned onto Thomson Road before he followed and parked his truck.

Constable Saucier

[70] I have already summarized the relevant portions of his evidence up until he arrested Ms. Motha and I am not going to repeat it here.

[71] His evidence with respect to Ms. Motha while en route to, and at the police station can be summarized as follows. She walked fine. She sat fine. She spoke fine. She appeared to understand what was said to her and she gave responsive and appropriate replies. She displayed no outward signs of impairment.

Constable Newham

[72] He pretty much echoed what I just set out in the above paragraph.

[73] He did note that there was a copious odour of alcohol coming from her breath.

[74] The colour of her face was apparently normal.

[75] Her eyes were bloodshot and red rimmed.

[76] Her clothing was casual and orderly. Her shoes were high heeled, approximately three inches high.

[77] He did not believe she was making a genuine effort to provide a breath sample at first but other than that he described her attitude as cooperative and polite.

[78] "Given the constellation of [his] interaction and the evidence that was before" him, including the Intoxilyzer results, he believed that her ability to operate a motor vehicle was impaired by her consumption of alcohol.

Ms. Motha

[79] Ms. Motha testified that she had consumed no alcohol that day prior to meeting her friend Georgina Gill that evening.

[80] She had been a friend of Ms. Gill since 2001.

[81] She arrived at Ms. Gill's high-rise condo in Toronto around 7:00 or 7:15.

[82] They ate dinner together there. Ms. Gill drank a "tallboy" can of beer. Ms. Motha drank two drinks mixing vodka and Orangina. She also mixed one of these drinks for Ms. Gill but Ms. Gill did not drink it. These three mixed drinks finished off the last one-third of a 375 ml. bottle of vodka. She later qualified this saying that it was less than one-half of the bottle but beyond that she could not be sure.

[83] They took a cab to the Dakota tavern where they drank and listened to a band. Ms. Motha drank two ciders and Ms. Gill drank 3 beers while they were there. There was alcohol in the cider. She believed it would have been 4.5% or 5% alcohol by volume. She assumed the size of each glass was around 14 ounces, a standard pint.

[84] When they left the bar, they walked to a Tim Horton's where they had a something to eat. They then took a cab back to the apartment building. They talked out front for about 10 minutes and then Ms. Gill walked Ms. Motha to her car. Ms. Motha had to pull out of a rather tight and tricky parking spot but did this without any difficulty.

[85] She was not feeling any effects from the alcohol she had consumed that evening. It was only four drinks spaced out over a number of hours.

[86] When she had arrived at the condo, "it was rainy but not heavy rain, just kind of foggy misty kind of rain".

[87] She made no mention of it being foggy or not when she left the condominium. She did say that Highway 427 was clear and that she did not have any problems near Pearson Airport. It was just mistier.

[88] She then hit a wall of fog on Highway 401 as she approached Winston Churchill Boulevard.

[89] She braked hard, slowing down considerably but did not come to a full stop.

[90] She veered to the left then because she knew that the highway curved to the left.

[91] She did not veer at any other time. She was not weaving within her lane let alone from lane to lane. She never came close to hitting any other cars or a tractor trailer.

[92] The fog lifted shortly before she reached Trafalgar Road and she was able to see fine for the rest of her drive.

[93] She exited Highway 401 at James Snow Parkway which she followed south to Derry Road. She turned right there and followed Derry Road to Thomson Road where she was about to turn left when the police car behind her activated its emergency lights.

[94] At that point, she turned on her right turn signal as she considered pulling over to the right. She reconsidered this option as she saw other traffic approaching and so she turned left onto Thomson Road before pulling over to the curb and stopping.

[95] She knew the route that she was following after leaving Highway 401 and there was no reason why she would have activated her right hand turn indicator other than when she was making a right hand turn.

[96] She did not see Mr. Spampinato or his tow truck other than on one occasion when he was looking at her at the intersection of the ramp from Highway 401 and the James Snow Parkway.

[97] She explained that she has worn contacts to change her eye colour since 1996. She does not need them to see. She uses Visine often because the contact as make her eyes get red very frequently.

Georgina Gill

[98] Ms. Gill testified that she had been a friend of Ms. Motha for approximately 12 years.

[99] Ms. Motha came to her condominium in Etobicoke around 7:15 pm.

[100] They ate dinner together there. Ms. Gill drank a beer. Ms. Motha drank two drinks mixing vodka and Orangina. She also mixed one of these drinks for Ms. Gill but Ms. Gill did not drink it. These three drinks finished off the last one-quarter to one-third of a 375 ml. bottle of vodka.

[101] They took a cab to the Dakota tavern where they drank and listened to a band. Ms. Motha drank two ciders. Ms. Gill drank at least three beers. There was alcohol in the cider. The glass of cider was the same size as the draft beer glass, "the average size you get at a bar".

[102] When they left the bar, they walked to a Tim Horton's where Ms. Gill had a coffee and a sandwich. They then took a cab back to the condo building. They talked out front for about 10 minutes and then Ms. Gill walked Ms. Motha to her car. She watched Ms. Motha pull out of a rather tight and tricky parking spot. She did this without any difficulty.

[103] She had no concerns about Ms. Motha driving home. She knows when Ms. Motha is drunk and she was fine then.

[104] She first noticed fog when the two of them returned to her place. It was worse later when she went out to walk her dog and so she texted Ms. Motha to let her know when she got home safely.

[105] Ms. Gill testified that she had a buzz at the end of the night but was not drunk. She was feeling some impairment as a result of the alcohol that she had consumed and could not say that it did not affect her ability to observe things that night.

Analysis

[106] This case turns, in large part, on my findings with respect to the credibility and the reliability of these witnesses.

[107] In addressing that issue, I am guided by the Supreme Court of Canada decision in R. v. W. (D).

[108] If I believe the testimony of Ms. Motha and Ms. Gill with respect to the critical issues, I must find Ms. Motha not guilty.

[109] Even if I do not believe this testimony, if it leaves me with a reasonable doubt, I must find her not guilty.

[110] Even if this testimony does not leave me with a reasonable doubt about her guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of her guilt, I must acquit.

[111] In determining this, I must keep in mind that Ms. Motha, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven her guilt beyond a reasonable doubt. She does not have to present evidence or prove anything. It is not enough for me to believe that she is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However I must remember that "the reasonable doubt standard … falls much closer to absolute certainty than to proof on a balance of probabilities".

[112] This is a tough standard and it is so tough for very good reason. As Cory J said in R. v. Lifchus, "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt …… is one of the principal safeguards which seeks to ensure that no innocent person is convicted."

[113] I did not believe Ms. Motha or Ms. Gill and their evidence did not leave me with a reasonable doubt.

[114] I wish to make it clear that I do not question their credibility. I think that both of them honestly believed that what they said in court was true. I find however that they are not reliable witnesses.

[115] Both of them had been drinking.

[116] Ms. Motha drank enough that she had a blood alcohol concentration of 140 milligrams of alcohol per 100 millilitres of blood. I wish to make it clear that, in making that observation, I am fully aware of the fact that I may not draw any inferences, based on that, as to the amount of alcohol consumed or as to any degree of impairment. I am however relying on the results of the breath tests as confirmation that Ms. Motha had consumed some alcohol and that this alcohol was still in her blood at the time that the breath tests were conducted.

[117] With respect to the amount of alcohol consumed by them that night, Ms. Motha and Ms. Gill were not particularly precise. Their estimates as to the amount of vodka in the 375 ml. bottle when they started drinking ranged from one-quarter to one-third to less than one-half. They did indicate that the vodka was 40 % alcohol by volume.

[118] With respect to the cider Ms. Motha assumed the size of each glass was around 14 ounces, a standard pint. Ms. Gill said that the glass of cider was the same size as the draft beer glass, "the average size you get at a bar". Ms. Motha believed that the cider would have been 4.5 % or 5 % alcohol by volume.

[119] This tells me little about the amount of alcohol in the cider drinks that Ms. Motha consumed that night. A real 'pint" contains 20 ounces but that is not what is necessarily served in a bar. There are no absolute standard sizes that I can refer to here. Nor can I rely on Ms. Motha's belief as to the amount of alcohol in each drink.

[120] Then too, even if I could be sure of how much alcohol she consumed, I cannot be certain as to what effect it had on her.

[121] Ms. Gill testified that she herself was feeling some impairment as a result of the alcohol that she consumed and could not say that it did not affect her ability to observe things that night.

[122] Ms. Motha faces serious criminal charges and a conviction could greatly affect her life. As a result, she has ample motive to remember things the way she does.

[123] To a lesser degree, Ms. Gill also has a similar motive. Ms. Motha is her good friend and she let her drive away that night.

[124] I also note that Ms. Gill was only able to testify to her observations of Ms. Motha up until the time she drove away. She was not present to observe Ms. Motha's driving on Highway 401 or in Milton.

[125] Mr. Spampinato had not been drinking alcohol.

[126] Counsel for Ms. Motha suggested that Mr. Spampinato had something at stake in this case, first in an attempt to pick up a towing job, and then later in order to ingratiate himself with the police in order to get a favourable resolution of outstanding criminal charges against himself. He did not get to tow anyone that night and there was no evidence put before me to substantiate the other suggestion. I find that Mr. Spampinato had no motive to make up his allegations against Ms. Motha.

[127] Ms. Motha and Ms. Gill were inconsistent with each other as to the weather conditions present when Ms. Motha left Ms. Gill's condo. Ms. Gill said that it was already foggy. Ms. Motha said that she did not encounter any fog until much later.

[128] Ms. Motha's evidence about the fog was also inconsistent with the weather report filed by her counsel. It showed fog at Pearson Airport. She testified that there was no fog there. It occurred much further west near Winston Churchill Boulevard.

[129] I also found it to be too convenient that she describes the fog as existing only between Winston Churchill Boulevard and Trafalgar Road where it would be a matter of her word against that of Mr. Spampinato alone. Constable Saucier could confirm that there was no fog in Milton at that time.

[130] Mr. Spampinato did contradict Ms. Motha. He said that there was no fog. He said that she drove very badly and that there was no reason for her to do so.

[131] Counsel for Ms. Motha argued strenuously that I should disbelieve Mr. Spampinato because he was so unreliable for a number of reasons.

[132] I agree that in many ways Mr. Spampinato was a bad witness. He repeatedly answered questions before the questioner was finished asking them. He was at times defensive or even argumentative. As a result he often did not answer the question that was asked and just as often he did answer questions that were not asked.

[133] However, I also note that there were reasons for him to be defensive. It was evident early on in cross-examination that counsel for Ms. Motha was suggesting that Mr. Spampinato was lying.

[134] More importantly, however, I note that Mr. Spampinato's evidence regarding Ms. Motha's driving was substantially corroborated both by Ms. Motha herself and by the video from his dash camera.

[135] Ms. Motha confirmed that she braked hard at one point on Highway 401. She also confirmed that she veered to the left as well.

[136] The video did even more to corroborate him. It showed her weaving within her lane on a number of occasions. It showed her driving along with her right turn indicator going for an extended time when no turn was forthcoming. It showed her entering the right turn lane at Derry Road at the last minute in order to make the turn.

[137] So I accept the evidence of Mr. Spampinato despite his shortcomings.

[138] I also note that every time the video corroborated the evidence of Mr. Spampinato, it also contradicted the evidence of Ms. Motha.

[139] Her evidence to the effect that she turned on her right turn indicator at Thompson Road after Constable Saucier activated his emergence lights is also contradicted by the evidence of Constable Saucier. He said that her turn signal was turned on before that and in fact was what motivated him to activate his emergency lights when he did.

[140] Ms. Motha's statement to Constable Saucier that she had consumed one beer and one vodka soda drink was inconsistent with her evidence at trial that she had consumed two of each.

[141] Based on all of the evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Motha was driving very badly and in a fashion quite consistent with the driver's ability to drive being impaired by alcohol. (Quite frankly the driving shown on the video would have been sufficient to accomplish this even without Mr. Spampinato's description of even worse driving by her while they were on Highway 401.)

[142] There are also the observations by Constable Saucier of other possible "indicia" of impairment by alcohol such as red and glossy eyes, droopy eyelids, a confused look and some difficulty in providing all of the documents that he had requested. She was slow and methodical in walking and answering questions. He could smell alcohol coming from her breath.

[143] Counsel for Ms. Motha stressed the evidence of Ms. Motha and Ms. Gill to the effect that Ms. Motha regularly suffered from red eyes as a result of her contact lenses. I question why an intelligent woman like Ms. Motha would continue to wear non-prescription contact lenses for cosmetic purposes if they regularly left her with red eyes. That seems to me to defeat the stated purpose. Quite frankly though, nothing really turns on the evidence of red eyes. It is simply one indication that she had consumed alcohol prior to driving that night.

[144] In that regard, there is more than sufficient evidence that she had been drinking alcohol. With the admission into evidence of the results of the breath tests, the Crown has in fact proven beyond a reasonable doubt that, at the time that she was driving so badly, there was alcohol in her blood to the degree that her blood alcohol concentration was 140 milligrams of alcohol per 100 millilitres of blood.

[145] Counsel for Ms. Motha exhaustively listed everything that Ms. Motha had done well that night and argued that these should leave me with a reasonable doubt as to whether her ability to operate a motor vehicle was impaired by alcohol.

[146] It is true that Ms. Motha was not speeding. Further, she stopped at every red light. There were many more stretches of roadway where she did not weave within her lane than ones where she did. There were many more stretches of roadway where she did not have her turn signal on inappropriately than ones where she did. She successfully pulled out of Ms. Gill's parking garage without difficulty despite the particular challenges presented in that lot. She displayed good balance and speech throughout her interactions with the police officers.

[147] These positive moments do not however negate the fact that, during the period captured on video alone, she was weaving within her lane on a number of occasions and that she did have her turn signal on at inappropriate times and that, on one occasion, she did enter the right turn lane at the last minute before making her turn.

[148] The positive moments only serve to establish that she was not anywhere near "falling down drunk" but that is not the test here. She does not have to be affected by alcohol to that degree to be guilty of the offence charged.

[149] On the contrary, the Ontario Court of Appeal has stated that:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[150] Having regard to all of the evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Motha was operating a motor vehicle when her ability to operate that motor vehicle was impaired by alcohol and I find her guilty of that offence.

CONCLUSION

[151] Having found Ms. Motha guilty of both charges I will now ask Crown counsel to inform me as to which offence he wishes me to stay and on which charge I should enter a conviction.

Released: October 28, 2015

Signed: "Justice D. A. Harris"