Court File and Parties

Ontario Court of Justice

Date: 2015-02-17

Court File No.: Brampton 14-1314

Between:

Her Majesty the Queen

— and —

Nirvair Padda

Before: Justice Copeland

Heard on: December 15 and 16, 2014

Reasons for Judgment released on: February 17, 2015

Counsel:

• V. Aujla, counsel for the Crown
• G. Dorsz, counsel for the defendant Nirvair Padda

Reasons for Judgment

COPELAND J.:

[1] Nirvair Padda is charged with impaired operation of a motor vehicle and failing or refusing to provide a breath sample, on or about the 25th day of January, 2014.

[2] Mr. Padda was pulled over by Constable Shaidle shortly after 7:30 p.m. on the evening of January 25, 2014. At the time the vehicle was stopped, the only occupants were Mr. Padda and his son Harjot Padda. Harjot was 16 years old at the time he testified. Constable Shaidle's interaction with Mr. Padda at the roadside led her to make a breath demand to Mr. Padda. Constable Shaidle's evidence regarding the observations that led to the vehicle stop and the breath demand is discussed further below. Ultimately, when Mr. Padda was transported to 21 Division, he did not provide a breath sample suitable for analysis. The reasons this occurred are in dispute.

[3] There is no issue that Mr. Padda was the driver of the motor vehicle and that he operated it. It is also common ground that no breath sample suitable for analysis was provided by Mr. Padda. No Charter issues were raised; however, the issue of reasonable and probable grounds to make the breath demand is in issue as an element of the offence of refusing or failing to provide a breath sample. There are three points in issue between the Crown and defence. The first two relate to the refuse breath sample charge, the third issue relates to the impaired operation charge:

1. Did Constable Shaidle possess a subjective belief that Mr. Padda operated a motor vehicle while his ability to do so was impaired by alcohol, and if so, were there objectively reasonable and probable grounds to make the breath demand?

2. If the breath demand was valid, did Mr. Padda intend to refuse to provide a sample? This case does not involve an outright refusal. The breath video shows Mr. Padda making numerous attempts to provide a sample, but none are sufficiently long or strong to provide a valid sample. The Crown argues that Mr. Padda was feigning inability to provide the sample. The defence argues that Mr. Padda tried his best but was unable to provide the sample due to language difficulties, and Constable Nicholson's aggressive manner and failure to provide full instructions and ensure those instructions were translated.

3. Has the Crown proven beyond a reasonable doubt that Mr. Padda's ability to operate a motor vehicle was impaired by alcohol at the time he was driving?

1: Were there subjective and objective reasonable and probable grounds for the breath demand?

[4] The elements of the offence of refusing or failing to provide a breath sample are as follows: (i) a valid demand; (ii) failure or refusal of the detainee to provide a suitable breath sample; and (iii) that the detainee intended to refuse to provide a suitable breath sample: R. v. Grant, 2014 ONSC 1479 at paras. 81-82. The Crown is required to prove each of these elements beyond a reasonable doubt.

[5] The first issue in this case is whether Constable Shaidle, who made the breath demand, had reasonable and probable grounds to make the demand, both subjectively and objectively.

[6] The legal test for reasonable and probable grounds is well-established and is not in dispute. Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires that the officer honestly believe that the person under investigation is committing or has committed the offence. The objective component requires that a reasonable person in the position of the officer would conclude that there were reasonable and probable grounds for arrest (to make the breath demand): R. v. Bernshaw, [1995] 1 S.C.R. 254 at paras. 48, 50; R. v. Shepherd, 2009 SCC 35 at paras. 13, 16, 17; R. v. Bush, 2010 ONCA 554 at para. 38; R. v. Censoni, [2001] O.J. No. 5189 at paras. 30-35 (S.C.J.).

[7] Crown counsel argues that both subjective and objective reasonable and probable grounds were present. He argues that Constable Shaidle's use and acceptance of the word "suspicion" was just mis-speaking, and her evidence as a whole shows she used right standard. Crown counsel argues that there is enough for objective reasonable and probable grounds, and points in particular to case law holding that there need only be evidence of a slight level of impairment by alcohol to support reasonable grounds: R. v. Bush, supra at para. 47.

[8] Counsel for Mr. Padda argues that there were neither subjective nor objective reasonable and probable grounds to make the breath demand. He argues that Constable Shaidle applied the wrong standard based on her repeated use or acceptance of word "suspicion" in her evidence in describing her reasons for the breath demand. Defence counsel also argues that the evidence she gave did not objectively support a finding of reasonable and probable grounds. He relies in particular on the very short period of observation of the driving and minimal issues with the driving, the lack of observations such as swaying or dilated pupils, and the approximately 12 minute period between the beginning of Constable Shaidle's interaction with Mr. Padda, when she did not smell alcohol, to when Constable Skwarek arrived at the car, when Constable Shaidle says she first smelled alcohol. Defence counsel also argues that some of Constable Shaidle's testimony regarding her observations is not reliable, in particular regarding the smell of alcohol, her evidence that that Mr. Padda was slurring his words, and her conclusion that it took Mr. Padda a long time to stop once she activated her lights. Defence counsel argues that considering the whole of the circumstances, objective reasonable and probable grounds were not present.

1.1: Subjective Belief

[9] I am left with a reasonable doubt as to whether Constable Shaidle had a subjective belief that Mr. Padda's ability to operate a motor vehicle was impaired by alcohol at the time she made the arrest and the breath demand. I find that based on her evidence, and in light of her limited experience conducting impaired driving investigations on her own, she likely confused the reasonable suspicion standard for an ASD demand with the reasonable and probable grounds to believe standard required for a breath demand. Thus, I have a reasonable doubt that she had the required subjective belief in impairment, as opposed to merely having a suspicion.

[10] In considering this issue, it is necessary to review in some detail Constable Shaidle's evidence regarding the basis for the stop of Mr. Padda and the breath demand.

[11] Constable Shaidle testified that she initially saw Mr. Padda's vehicle heading southbound on Goreway. The rear lights were out, but the brake lights were working properly. The vehicle turned right on Morning Star Drive. That turn was normal and had no issues. On Morning Star the vehicle then made three small swerves or jerks. The first was to the left, and the vehicle went over the centre line by the width of the driver side wheels. The vehicle then corrected itself to the centre of its lane, and then jerked towards the curb, but did not hit the curb. Constable Shaidle agreed in cross-examination that the movement could have been to avoid hitting something. The vehicle then corrected to the centre of the lane. It then made a smaller swerve to the middle, but stayed in the lane, and then corrected to the centre. She then pulled the vehicle over. Her reason for pulling the vehicle over was the rear lights not being on, but the swerves caused her some concern. She made these observations over approximately one minute, and over approximately 50 yards distance.

[12] Constable Shaidle then had an initial conversation with Mr. Padda where she stood by the driver window and asked about the lights, and obtained a verbal identification from him. Constable Shaidle was within three feet of Mr. Padda during this conversation. At Constable Shaidle's direction, Mr. Padda adjusted the lights in some fashion, and she checked and the front lights were working. She never checked the rear lights. Constable Shaidle did not smell any alcohol during this conversation. She noted that Mr. Padda's speech was slow and he had an accent, but that he seemed to understand their conversation in English. She noted that Mr. Padda's eyes were red-rimmed and watery, but that his pupils were normal. The colour of his face was normal. Constable Shaidle returned to her cruiser to run Mr. Padda's name and date of birth on her computer, which came up with no prior history. She returned to the vehicle with her flashlight to check if maybe there was evidence of open alcohol. She saw none, but did see Mr. Padda's wallet which he had been unable to find earlier. She asked for his driver's license, which he gave her without any problem. The driver's licence confirmed the verbal identification he had given earlier. At some point another officer, Constable Skwarek, arrived. Constable Skwarek went to the passenger side of the vehicle to speak to speak to Mr. Padda's son. At that time, the passenger window was rolled down, Constable Shaidle said she then smelled alcohol from Mr. Padda's breath, which she had not smelled before (I address the reliability of this observation further below). This was approximately 12 minutes after her initial conversation with Mr. Padda.

[13] The crux of my concerns about Constable Shaidle's subjective belief and the standard she applied in making the arrest and the breath demand arise out of the following exchanges, considered in the context of her evidence as a whole.

Examination in Chief

[14] The following exchange took place after Constable Shaidle testified to first smelling the odour of alcohol from Mr. Padda's breath when the passenger window was opened:

Q. What happened when you detected this odour?

A. So, I told the driver to turn the vehicle off, and at this point I told him to step out of the vehicle, and I told him that he was going to be under arrest for – I had formed my suspicion at that point that he was going to be under arrest for impaired driving

Q. Okay, so when you say – what is it that you arrested him for?

A. I arrested him for being impaired – impaired driving.

Q. For impaired driving, okay. And can you tell us what factors you took into consideration when you formed your grounds for arresting for the impaired operation itself?

A. I formed my opinion over the rear lights being off at night, the swaying in between the lanes, swerving, he was slow to come to a stop. As soon as I walked up to the driver he had red-rimmed eyes, watery, then after going back to my cruiser the window being put down, then I smelled alcohol. All of that combined, that's when I formed my opinion that he was driving a motor vehicle and was impaired by alcohol.

Cross-examination

[15] The following exchanges for the reasons for the arrest and the breath demand took place in cross-examination:

Q. So, just to go over the grounds then. You indicated you arrested him for impaired driving, is that what you said?

A. Correct.

Q. Okay. And I think you said in your evidence that's because you were suspicious that he was driving. I mean, the driving behaviour, the red-rimmed eyes, the watery eyes, the smell of alcohol in the breath eventually….

A. Correct.

Q. … caused you to be suspicious, correct?

A. Correct.

Q. Okay. And that's why you arrested him?

A. Yes.

[continuing an answer regarding when she first smelled alcohol]

A. Well, he's – so my partner is speaking to the passenger and so he distracts him and I'm distracting the driver. So, like I said, during that time – it wasn't like we were finished up, like we stopped talking and there was nothing else to talk about. We were more than likely speaking about his licence and why he didn't provide his licence right away to me, and why did he say it was at home. Has he been drinking, yadda – yadda – yadda, you know, like you know, have you been drinking tonight. It's making me obviously suspicious with all this other stuff, the driving.

Q. Okay, well, officer, you at the beginning of that, you mentioned that it's more than likely that this is what you would've been talking about. You can't tell us for certain what you were talking about?

A. No, I can't.

Q. Okay. In fact, you didn't even talk about alcohol consumption until after he had been arrested, correct?

A. In my notes, yeah, I stated that he admitted that he had one and a half beers.

Q. So, after you smelled the alcohol that's when you formed your suspicion that he may have been impaired and that's when you arrest him for impaired driving?

A. Well, all – everything leading up to that.

Q. Sure.

A. That was confirmation.

[16] From the exchanges above, it can be seen that when Constable Shaidle described in her evidence in chief what led her to make the arrest and the breath demand, she described it in terms of "suspicion". At no point did she expressly reference the correct standard of belief. And repeatedly in cross-examination she accepted the use of the words "suspicious" and "suspicion" in relation to the standard she applied to make the arrest and the breath demand. In the context of all of the evidence, I am left with a reasonable doubt that Constable Shaidle formed a belief that Mr. Padda's ability to operate a motor vehicle was impaired by alcohol, as opposed to merely having a suspicion. A suspicion would have been enough for an ASD demand, but not for an arrest and a breath demand.

[17] I acknowledge that the jurisprudence holds that an officer is not required to use particular words to describe their subjective belief: R. v. Hall, [1995] O.J. No. 544 at paras. 34-36 (ONCA); R. v. Clarke, [2000] O.J. No. 804 at para. 13 (S.C.J.). However, a trial judge must be able to find based on the evidence that the officer subjectively had a belief that that the accused had committed the offence (in this case that the accused was operating the motor vehicle while his ability to do so was impaired by alcohol, or had done so in the preceding three hours). I am unable to make that finding beyond a reasonable doubt in this case. As outlined above, to the extent Constable Shaidle referenced any standard in her evidence when referring to her belief, she used the standard of "suspicion", and accepted that standard in response to questions put to her in cross-examination. The evidence leaves me with a reasonable doubt as to whether Constable Shaidle believed Mr. Padda's ability to operate a motor vehicle was impaired by alcohol at the time she made the breath demand, as opposed to merely having a suspicion.

[18] In making the finding that I have a reasonable doubt as to whether Constable Shaidle subjectively believed that Mr. Padda's ability to operate a motor vehicle was impaired by alcohol at the time she made the breath demand, I note that I am not finding that Constable Shaidle misled the court or was untruthful in her evidence (although as I discuss below in relation to objective reasonable and probable grounds, I find some of her observations to be unreliable). Rather, I find that as a result of her inexperience, she did not properly distinguish between the reasonable suspicion which allows an ASD demand, and reasonable and probable grounds (based on belief, not suspicion) which is necessary for a breath demand. Constable Shaidle testified that her stop of Mr. Padda was only the second or third stop in relation to an impaired driving investigation that she had conducted on her own.

[19] Crown counsel made the submission that I could take notice that Constable Shaidle's use of the word "opinion" in her evidence meant "reasonable and probable grounds". I do not believe this is a matter of which I can take judicial notice. And as outlined above, Constable Shaidle's evidence taken as a whole does not support that conclusion.

1.2: Objective reasonable and probable grounds

[20] Although it is not, strictly speaking, necessary for me to decide if there were objectively reasonable and probable grounds to make a breath demand, I consider this issue as well, as it goes hand in hand with the subjective reasonable and probable grounds issue.

[21] On reviewing all of the evidence available at the time Constable Shaidle made the breath demand, I have a reasonable doubt as to whether there were objectively reasonable and probable grounds to believe that Mr. Padda was operating a motor vehicle while his ability to do so was impaired by alcohol (or that he had done so in the preceding three hours).

[22] I instruct myself that reasonable and probable grounds is not an onerous standard: R. v. Bush, supra at paras. 46-48; R. v. Censoni, supra at para. 43. But the case law is also clear that reasonable and probable grounds is more than reasonable suspicion. Both reasonable suspicion and reasonable and probable grounds must be based on objective facts. The difference between reasonable suspicion and reasonable and probable grounds is that reasonable suspicion is based on reasonable possibility, while reasonable and probable grounds is based on reasonable probability: R. v. Chehil, 2013 SCC 49 at para. 27; R. v. Bush, supra at paras. 36-37; R. v. Valere, 2013 ONCJ 594 at para. 12. In the words of Chief Justice Dickson, reasonable and probable grounds exist where "credibly based probability replaces suspicion": Hunter v. Southam, [1984] 2 S.C.R. 145.

[23] Further, I must assess whether objective reasonable and probable grounds exist by considering the totality of the circumstances. I must not proceed as if the finding of impairment is based on a check-list, and that particular indicia are necessary in all cases: R. v. Bush, supra at paras. 54-58.

[24] I find Constable Shaidle's evidence regarding roadside observations with respect smell of alcohol to be unreliable. She testified that she only smelled the alcohol after approximately 12 minutes, when Constable Skwarek arrived and the passenger window was opened, and did not smell it in her earlier discussion with Mr. Padda about the car lights. She testified that she smelled the alcohol when the passenger window was opened. On her evidence, this was some 12 minutes after her initial conversation with Mr. Padda. But in her earlier conversation with Mr. Padda about the lights, her evidence was that she was within three feet of his face. In cross-examination, she repeatedly accepted the description that she "put her head in the window" of Mr. Padda's car to speak to him in the initial conversation regarding the lights. In that short distance, one would expect that if Mr. Padda's breath smelled of alcohol, she would have smelled it at that time, yet she did not.

[25] Further, I find Constable Shaidle's evidence that Mr. Padda's speech was slurred to be unreliable. She did not make any reference to slurred speech in her examination in chief, but rather said it for the first time in cross-examination. She did not make any note regarding slurred speech. Her notes regarding his speech were that Mr. Padda's speech was "slow" at times, that he had an accent, and that he seemed to understand their conversation in English. Slurred speech is a common indicator of intoxication, which one would expect an officer to note if it was present, and to include it in their evidence in examination in chief, for example, as part of the grounds for the breath demand.

[26] Further, I find unreliable Constable Shaidle's observation that Mr. Padda took a long time to stop his vehicle when she pulled him over. Constable Shaidle testified that she found the time it took Mr. Padda to stop his vehicle was long. But when she was asked to describe how long it took him to stop the vehicle, she said he stopped the vehicle within 40 to 50 feet from when she put her lights on to pull him over. She also characterized or accepted the characterization of the stopping distance as three house widths, or 5 or 6 car lengths. Her evidence was that prior to pulling over Mr. Padda, her speed and his was approximately 40 kilometres per hour. I find that 40 to 50 feet is not an unusually long distance to come to a stop when pulled over by police from a speed of 40 kilometres an hour.

[27] As noted above, Constable Shaidle summarized the reasons she made the breath demand as: "the rear lights being off at night, the swaying in between the lanes, swerving, he was slow to come to a stop. As soon as I walked up to the driver he had red-rimmed eyes, watery, then after going back to my cruiser the window being put down, then I smelled alcohol."

[28] In light of my findings that Constable's Shaidle's evidence about smell of alcohol, the alleged slurred speech, and the long stopping distance are not reliable, the following evidence is left as possible evidence to support reasonable and probable grounds: the rear lights being out, the swerving and then correcting, and the red-rimmed watery eyes. This evidence must be taken in the context of Constable Shaidle's evidence that the initial right hand turn executed by the vehicle was normal and showed no issues, that the vehicle corrected to the centre of the lane each time, that the swerves could have been to avoid something, and that Mr. Padda seemed to have no issues conversing with Constable Shaidle and understanding her and following her directions.

[29] Accepting, as the case law instructs, that reasonable and probable grounds is not an unduly high standard, it is still a standard where credibly based probability must replace suspicion. On the evidence before me, I find that the Crown has not proven beyond a reasonable doubt that there were objective reasonable and probable grounds that Mr. Padda's ability to operate a motor vehicle was impaired by alcohol at the time he operated the motor vehicle. The observations about the driving and the rear lights out, particularly taking into account the earlier observation of the right turn with no issues, are not sufficient to objectively provide reasonable and probable grounds – particularly in the absence of reliable evidence about an odour of alcohol. Although each case turns on its particular facts, I note that I have considered the following cases which bear some similarity on the facts: R. v. Tosczak, 2014 ABQB 86; R. v. Auwai, 2010 BCPC 247. Neither of these cases is binding on me.

[30] I note that Constable Shaidle did not go the route of making an ASD demand to confirm her suspicions prior to making the breath sample demand. She was asked about this in cross-examination and testified that she did not have an ASD with her, and she was not aware of whether Constable Skwarek had one in his cruiser.

[31] I appreciate that officers are not required in every case to administer an ASD in order to provide the basis for reasonable and probable grounds. An ASD "fail" is not a necessary element of reasonable and probable grounds: R. v. Bush, supra at para. 60; R. v. Censoni, supra at para. 50. However, there is in law a distinction between the reasonable suspicion required for an ASD demand, and the reasonable and probable grounds required for a breath demand. If an officer's grounds asserted to be reasonable and probable grounds are close to the line, if the officer chooses not to make an ASD demand, he or she takes the risk that a reviewing court may later find that the facts the officer relied on did not rise to the level of reasonable and probable grounds.

[32] I find that the Crown has not proven that Constable Shaidle had either subjective or objective reasonable and probable grounds to make the breath demand. As the Crown has failed to prove that there was a valid breath demand, I find Mr. Padda not guilty of failing or refusing to provide a breath sample.

2: Did Mr. Padda intend to fail or refuse to provide a breath sample?

[33] In light of my finding that the breath demand was not valid, it is not necessary for me to decide the issue of whether Mr. Padda intended to refuse to provide the sample. I note that there is a split in the decisions of both this court and the Superior Court regarding the required intent for the offence of failing or refusing to provide a breath sample: see for example, R. v. Porter, 2012 ONSC 3504; R. v. Greenshields, 2014 ONCJ 35, and R. v. Soucy, 2014 ONCJ 497. Since it is not necessary to for me to rule on this issue to decide this case, it is preferable that I make no ruling regarding which line of authority I find persuasive.

3: Has the Crown proven beyond a reasonable doubt that Mr. Padda's ability to operate a motor vehicle was impaired by alcohol at the time he was driving?

[34] As noted above, there is no issue that Mr. Padda was operating a motor vehicle at the relevant time. The only issue is whether the Crown has proven beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol at the time he was driving. If I have a reasonable doubt that Mr. Padda's ability to operate a motor vehicle was impaired, I must acquit. If the evidence establishes beyond a reasonable doubt any degree of impairment of his ability to operate a motor vehicle, from slight to great, the offence is established and the Crown has met its burden: R. v. Stellato, [1994] 2 S.C.R. 478, affirming (1993), 12 O.R. (3d) 90 (ONCA).

[35] In assessing whether the Crown has proven beyond a reasonable doubt that Mr. Padda's ability to operate a motor vehicle was impaired by alcohol at the time that he was driving, I must consider all of the evidence, not just at the time he was driving, but also in the breath room. The officers who gave evidence in relation to the impairment issue were Constables Shaidle and Nicholson.

[36] I note that I have already found that Constable Shaidle's observations at the roadside prior to making the breath demand did not rise to the level of reasonable and probable grounds. In the context of deciding whether the Crown has proven beyond a reasonable doubt that Mr. Padda was impaired, I must still consider Constable Shaidle's evidence in the context of all of the evidence.

[37] I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Padda was impaired by alcohol at the time that he operated the motor vehicle.

[38] I have summarized Constable Shaidle's observations at the roadside above. I note that after she arrested Mr. Padda and made the breath demand, Constable Shaidle asked him if he had had any alcohol to drink. He said he had had one and a half beers. The Crown only sought to rely on this statement for reasonable and probable grounds, and not for the truth of its contents in relation to impairment, so I do not consider it here. Constable Shaidle also testified that when Mr. Padda walked to her cruiser following the arrest there were no issues with his walking. Constable Shaidle also testified that Mr. Padda did not appear to have any difficulties of understanding or communicating when she gave him his right to counsel and throughout the process of her putting him in contact with duty counsel.

[39] Constable Dhami assisted with Punjabi translation during the time in the breath room, and later for service of documents. He was present in the breath room throughout with Constable Nicholson and Mr. Padda. His evidence related to language issues, and was relevant to the fail or refuse to provide a breath sample charge. He was not asked any questions relevant to impairment either in examination if chief or cross-examination.

[40] Constable Nicholson testified that in the breath room there was a strong odour of alcohol from Mr. Padda's breath. He said although Mr. Padda's skin was dark, he felt his face was flushed. He said Mr. Padda's eyes were watery, bloodshot, and his pupils were dilated. Mr. Padda agreed to do voluntary field sobriety tests near the end of the breath room interview. These tests can be seen on the breath room video entered as evidence before me. Constable Nicholson testified that Mr. Padda swayed on the first balance test one or two inches. He testified that Mr. Padda missed his nose once on the fingertip to nose test; although he conceded in cross-examination that Mr. Padda had touched the side of his nose on that occasion. On the walking test, Constable Nicholson said Mr. Padda's regular walking was fine, but said he was unsteady when walking heel to toe.

[41] Constable Nicholson's evidence, taken together with Constable Shaidle's evidence, does not satisfy me beyond a reasonable doubt that Mr. Padda was impaired by alcohol at the time he was driving. There are three main reasons that lead me to this conclusion.

[42] On my review of the field sobriety tests performed by Mr. Padda on the video he appeared to perform well on the tests, and where there was concern, it appears to me to be due to language issues. Constable Nicholson agreed in cross-examination, and I can see on the video, that the instructions for the field sobriety tests were not translated into Punjabi for Mr. Padda. On the first test, where Mr. Padda was asked to stand with his eyes closed and head back for a period of time, on my review of the video Mr. Padda stayed balanced for the time when Constable Nicholson counted to 10. On the second test, where Mr. Padda was asked to put his finger to his nose repeatedly, alternating hands, he did so each time as requested (6 times); although on one occasion he touched the side of his nose, not the tip. It was notable that the first time, Mr. Padda put his finger to his nose and then to his forehead. In doing so, he was copying the action Constable Nicholson had done in explaining the test, of first touching his nose and saying that was correct, and then touching his forehead and saying that was wrong. In light of the fact that Constable Nicholson had just done that action and Mr. Padda appears to mimic it exactly, I attribute this to language difficulties, not impairment. On the third test, of walking, first normally and then heel to toe, Constable Nicholson conceded that Mr. Padda's regular walking was fine. This is consistent with what I observed on the video. While Constable Nicholson said Mr. Padda had difficulty with the heel to toe walking, on my review of the video, Mr. Padda also did fine with the heel to toe walking. He appeared to have some difficulty with the turn, but I note again that Constable Nicholson's directions were not translated into Punjabi. There was specific direction regarding how to conduct the turn, so in the absence of translation, I attribute any issue with the turn to the lack of translation.

[43] Second, I have reviewed the breath room video and made my own observations of Mr. Padda's demeanour. I did not observe indicia of impairment in the breath room video. I acknowledge that for some signs of impairment which are less obvious, my capacity to make such observations from the video is somewhat limited. However, I certainly did not observe any obvious signs of impairment. And the field sobriety tests, because they involve larger movements, were clearly visible to me on the video.

[44] Third, I have some concern about the inconsistency between Constable Shaidle and Constable Nicholson's evidence in two areas. Constable Shaidle testified that Mr. Padda's pupils were normal, but Constable Nicholson said they were dilated. Constable Shaidle said the colour of Mr. Padda's face was normal. Constable Nicholson said it was flushed.

[45] Having considered the evidence of all of the officers, I have a reasonable doubt as to whether Mr. Padda's ability to operate a motor vehicle was impaired by alcohol at the time he was driving. I am cognizant that even a small degree of impairment by alcohol of the ability to operate a motor vehicle is sufficient to prove the offence, but I do not find that the Crown has proven impairment by alcohol beyond a reasonable doubt.

[46] I note that I have considered evidence given for the defence by Mr. Padda's son Harjot. I did not find his evidence to be of much assistance on the issue of whether Mr. Padda's ability to operate a motor vehicle was impaired by alcohol at the time he was driving. Harjot testified that he had not seen his father drinking alcohol that day or evening. But he conceded in cross-examination that he had been in another part of the house than his father for most of the day. As a result, he could not definitively say that his father had not consumed alcohol. I do find credible and accept Harjot's evidence that the reason they were driving that evening was because Harjot had ordered pizza from the Pizzaville restaurant where his uncle worked. Because the restaurant was busy, his uncle had asked him to come and pick up the pizza. Harjot asked his father to drive him there to pick up the pizza. At the time, Mr. Padda was upstairs getting ready for bed. Harjot and his father had both been home for the day. This evidence explains the evidence of the police that Mr. Padda did not seem appropriately dressed for the weather.

[47] On all of the evidence, I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Padda's ability to operate a motor vehicle was impaired by alcohol at the time that he was driving. I find Mr. Padda not guilty of impaired operation of a motor vehicle.

Conclusion

[48] I find Mr. Padda not guilty of impaired operation of a motor vehicle and of failing or refusing to provide a breath sample. Both counts on the Information are dismissed.

[49] I thank both counsel for their helpful submissions.

Released: February 17, 2015

Justice J. Copeland

Footnote

[1] I note as well the different factual issue for an ASD demand based on reasonable grounds to suspect whether the person has alcohol in their body and has within the preceding three hours operated or had care or control of a motor vehicle, as compared to a breath demand which requires reasonable and probable grounds to believe that the person is committing or has committed within the preceding three hours the offence of impaired operation or over 80 (Criminal Code of Canada, ss. 254(2) and 254(3)). On the facts of this case the issue I am concerned about in Constable Shaidle's evidence is the standard of belief (suspicion of impairment vs. belief of a probable impairment), not the factual difference between that facts in issue for an ASD demand as compared to a breath demand.