R. v. Annett

Court File No.: London 15-13105 Date: 2016-11-04 Ontario Court of Justice

Between: Her Majesty the Queen — and — Alexander Annett

Before: Justice A. Thomas McKay

Heard: September 6, 2016

Reasons for Judgment Released: November 4, 2016

Counsel:

• Mr. Yih, for the Crown
• Mr. Toews, for the defendant Alexander Annett

MCKAY J.:

INTRODUCTION

[1] Mr. Annett was charged with drinking and driving offences under sections 253(1)(a) and 253(1)(b) of the Criminal Code. The offences are alleged to have occurred November 21, 2015. Mr. Annett was involved in a single motor vehicle accident in which his car left the roadway and entered the ditch. Police attended the scene, and spoke with civilian witnesses and Mr. Annett. Police then arrested Mr. Annett and demanded a breath sample. Mr. Annett eventually gave the breath samples; the truncated readings were 160 milligrams and 150 milligrams of alcohol in 100 millilitres of blood.

[2] The defence filed an application under the Charter which alleged that the police did not have the requisite reasonable and probable grounds to arrest and make the breath demand; therefore the actions of the police resulted in breaches of sections 8 and 9 of the Charter.

EVIDENCE

Cassandra Close

[3] Ms. Close was travelling as a passenger in a car operated by her friend Angela Ledger. They were driving to a theatre to attend a movie. It was dark and wet snow was falling. The snow was melting on the road, so there was no buildup in the travelled portion of the roadway. There was some snow buildup on the shoulders of the road. The roads were wet, but they were not having traction issues in their car. Ms. Ledger was driving the speed limit.

[4] Ms. Close was looking at the screen of her phone sending a text message when Ms. Ledger pointed out car tracks through the snow on the shoulder of the roadway leading into the ditch. She could see that a car had struck a wooden fence at the bush line next to the ditch. The door to the car was open. Ms. Ledger stopped her car and they got out. Mr. Annett was standing at the driver's door of the car. She listened as Ms. Ledger spoke with Mr. Annett. Ms. Ledger said she would call 911, and asked Mr. Annett if he wanted to call anyone. Mr. Annett said that there was no need to call 911, and that he was fine. Ms. Ledger would not accept that, and made the call to 911.

[5] Mr. Annett seemed shaken up. He seemed disoriented and his speech seemed slightly slurred. At the time she was uncertain of whether he was injured or whether he had been drinking. She was standing approximately five feet from him. The headlights from Ms. Ledger's car were illuminating the scene. She believed that she saw blood, but indicated that she was not certain, and that it was nothing serious in the way of injuries. The snow had begun to build up on the shoulder of the roadway. She was wearing flats and almost slipped on the shoulder of the road because of the snow on the bottom of her shoes.

[6] Emergency vehicles arrived on scene within a couple of minutes of the 911 call. There was a fire truck, and police cars. She gave a statement to a police officer 10 to 15 minutes after the police arrived. She did not see Mr. Annett drink or eat anything.

[7] In cross-examination, she indicated that they saw Mr. Annett's vehicle earlier at an intersection. Mr. Annett's vehicle was speeding, then slowing down, then speeding up. They lost sight of the vehicle when it went up the hill. When they crested the hill, they saw the car in the ditch. Mr. Annett's car had passed them earlier going pretty fast. When they interacted with Mr. Annett, he walked out of the ditch to stand on the shoulder of the roadway with them. He was slightly wobbly, but she acknowledged that it was snowing. Her recollection is that Mr. Annett's airbag had deployed. Road conditions were slick. When she almost slipped she was on the shoulder of the roadway, and snow had built up on the bottom of her flats like a snowball. After that happened, she moved onto the roadway, where it was not slippery.

[8] She agreed that in her statement to the police that evening, she indicated that the roads were very slick, snowing like sleet, and the road was covered. The statement also said that she almost fell when standing on the road. She indicated that occurred after her involvement at the scene had ended and she was walking back to Ms. Ledger's vehicle. She explained that it happened because the snow had escalated quickly while they were on scene.

Constable Brian Armstrong

[9] Constable Armstrong was the investigating officer. At 8:05 p.m. he was dispatched to a motor vehicle accident. He described the weather as snowy, with a fair bit of snow on the roads. The road where the accident occurred had not been plowed, and he had to go slow on that road. When he arrived at the accident scene, he observed Mr. Annett's car in the ditch. EMS and fire personnel were already on scene. They pointed out civilian witnesses. Mr. Annett was already in an ambulance. At 8:22 p.m., he entered the ambulance to speak with Mr. Annett. Mr. Annett had an injury to his lip, with some blood visible on the lip. Mr. Annett made a number of utterances, the voluntariness of which is not in dispute. Mr. Annett indicated that he was coming from London, going to St. Thomas when he lost control of his car. As Mr. Annett spoke, the odour of alcohol got stronger.

[10] Mr. Annett's responses to his questions were a little delayed, taking longer than normal to provide. There was some slurring of speech and words blending in together. He asked Mr. Annett what his phone number was and Mr. Annett had difficulty recalling the last four digits of the phone number. After a couple of minutes, Mr. Annett was able to recall the telephone number. He asked Mr. Annett how long it had been his number and Mr. Annett confirmed that he had the same telephone number for two years. He asked Mr. Annett if he had had anything to drink that evening, and Mr. Annett responded by saying one beer.

[11] Constable Armstrong spoke to a civilian witness and asked her to remain on scene to provide a statement. He spoke with the other civilian witness who had been driving the vehicle the two women were travelling in.

[12] Constable Armstrong described the conditions as heavy snow falling, with slippery, slushy roads which required him to reduce his speed. He testified that there was some snow build up on the road, but he could not recall how much. He was unsure of the speed limit on that section of the roadway, but thought that it might be 50 kilometres per hour. He could not recall whether there was artificial lighting in the area. He did not recall having any difficulty walking on the roadway. Constable Armstrong examined Mr. Annett's vehicle. He noted that the airbag had deployed.

[13] At 8:34 p.m., Constable Armstrong decided that he had reasonable and probable grounds to believe that Mr. Annett had committed an impaired driving offence under section 253 of the Criminal Code. His grounds included the unexplained accident, the odour of alcohol emanating from Mr. Annett, slow responses by Mr. Annett to his questions, slurred speech and the admission that there had been some alcohol consumed. He arrested Mr. Annett, and read the right to counsel from his duty book. Mr. Annett indicated that he understood the right. Constable Armstrong read the caution from his duty book and Mr. Annett indicated that he understood that. Mr. Annett indicated that he did not wish to speak to a lawyer. At 8:35 p.m., he read the demand for a breath sample to Mr. Annett.

[14] A few minutes later, EMS personnel advised him that Mr. Annett was being taken to University Hospital. At 8:44 p.m., the ambulance left the scene with Mr. Annett. Constable Armstrong accompanied them in the ambulance. While en route from 8:44 p.m. to 9:02 p.m. he had a conversation with Mr. Annett. Mr. Annett advised that he last had an alcoholic beverage at 8:15 p.m., and indicated that he had a total of four drinks. Mr. Annett confirmed that he was driving the vehicle, he was alone in the vehicle and he did not drink alcohol while in the car, in the ditch or after the accident. Mr. Annett further advised that he consumed the four drinks between 4 p.m. and 8 p.m. and that he was drinking beer. At 9:10 p.m., the ambulance arrived at University Hospital.

[15] Constable Campbell indicated that Mr. Annett was in the hospital hallway for a short period of time. At 9:22 p.m., he asked one of the EMS attendants whether Mr. Annett was capable of providing a breath sample. He asked that question because he was aware that Mr. Annett had suffered a cut lip during the accident. The EMS attendant indicated that there would be no issue with Mr. Annett's ability to provide a breath sample. Other police officers arrived at the hospital. At 9:30 p.m. he took a statement from EMS attendant Tim Nielsen. Mr. Annett was taken to a hospital room. He followed Mr. Annett there. Constable Budzyn arrived at the hospital with a mobile Intoxilyzer. At 9:39 p.m. he provided his grounds for arrest to Constable Budzyn. The grounds relayed to Constable Budzyn were identical to his evidence today. Constable Budzyn took the breath samples.

[16] At 10:45 p.m., Dr. Sheppard entered the room to treat Mr. Annett. At 10:58 p.m, he heard Constable Budzyn review the results of the breath tests with Mr. Annett. At 11:05 p.m. he advised Mr. Annett that he would also be charged with an offence under section 253(1)(b) of the Criminal Code. His notebook entries at 12 o'clock indicated that he gave Mr. Annett the right to counsel. He believed that was a late entry to his notebook.

[17] In cross-examination, Constable Campbell confirmed that the road conditions were poor. He agreed that the accident alone did not necessarily have to be an indication of impairment. He agreed that the odour of alcohol emitting from Mr. Annett was not an indicator of how much alcohol he consumed nor did the odour of alcohol alone necessarily mean that Mr. Annett was impaired. He testified that there was no one specific thing which led to his grounds for arrest, but that it was the totality of circumstances which led to his conclusion. He confirmed that he had observed blood on the airbag of the car, and that he had considered whether the injury to Mr. Annett's lip could have been the reason for the slurred speech.

[18] Constable Campbell also confirmed that his police training covered note taking. He confirmed that his notebook entries made no reference to his smelling alcohol upon entry to the ambulance, nor did they make any reference to the smell of alcohol getting stronger during his conversation with Mr. Annett. Constable Campbell confirmed that those observations were included in his typed statement which he prepared that shift. He also confirmed that his notebook entries regarding delayed speech on the part of Mr. Annett was a late entry which he made at 10:01 p.m. He indicated that his failure to immediately make the note regarding delayed speech was a brief oversight due to the fact that he was talking to Mr. Annett, and trying to take notes at the same time. He confirmed that he did not have an approved screening device with him at the roadside, but that he could have called for one if he thought it was necessary.

Constable Michael Budzyn

[19] At 8:43 p.m., Constable Budzyn was notified by the police communication centre to attend at University Hospital to conduct a breath test with an approved instrument. He has been a qualified breath technician since October 2011, and has conducted more than 70 breath tests, approximately 10 of them with the mobile Intoxilyzer. He travelled directly to police headquarters to obtain the kit containing the mobile version of the Intoxilyzer 8000C in order to attend at the hospital to conduct the breath test. After checking the contents of the kit, he loaded it in his car at 8:56 p.m., and traveled directly to University Hospital, arriving there at 9:09 p.m. About one minute later, Mr. Annett arrived at the hospital.

[20] Constable Budzyn waited for Mr. Annett to be placed in a specific location in the hospital. After a few minutes Mr. Annett was assigned a bed in the emergency department. Constable Budzyn went to that area and set up the approved instrument. He made the instrument ready in accordance with his training and did the required quality assurance checks. All of them showed that the instrument was in proper working order. While the instrument was warming up, he obtained Mr. Annett's driver's license and the grounds for arrest from Constable Armstrong. He spoke with Mr. Annett and provided him with the cautions, and made the breath demand. While taking those steps, he noted that Mr. Annett had noticeably slurred speech, the odour of alcohol on his breath, and glassy eyes.

[21] Constable Budzyn began the testing sequence at 10:14 p.m., running calibration checks and self-checks. At 10:16 p.m. he confirmed that Mr. Annett did not wish to speak to a lawyer. At 10:18 p.m., the instrument aborted the test and registered a diagnostic fail. At 10:19 p.m., he did a standalone diagnostic check on the instrument, which passed. At 10:21 p.m., he restarted the diagnostic sequence. From 10:21 p.m. to 10:24 p.m., Mr. Annett spoke with his sister in privacy on a telephone provided by hospital staff. At 10:24 p.m., the instrument registered radio frequency interference and aborted the testing sequence. His belief was that there was another device in the area, perhaps a cordless phone. He also had Constable Armstrong turn off his police radio.

[22] At 10:25 p.m., he restarted the diagnostic sequence. At 10:31 p.m., he received a suitable sample from Mr. Annett, which resulted in a reading of 169 milligrams of alcohol per 100 millilitres of blood. That result was truncated to 160 milligrams. He completed a required police form, asking some questions of Mr. Annett. He also made duty book notes. Mr. Annett indicated that he had consumed four beers between 4:30 p.m. at 5:45 p.m. At 10:43 p.m., Dr. Sheppard entered the room to examine Mr. Annett. Constable Budzyn gave them privacy. At 10:49 p.m., he had a conversation with Dr. Sheppard regarding Mr. Annett's injuries. He then resumed the breath testing sequence.

[23] At 10:54 p.m., Mr. Annett provided a sample which was not a suitable sample. He indicated that Mr. Annett would start and stop blowing air in the instrument, resulting in the unsuitable sample. At 10:56 p.m., he obtained a second suitable sample, which resulted in a reading of 151 milligrams of alcohol per 100 millilitres of blood, which was truncated to 150 milligrams. He showed the test results to Mr. Annett and advised him that he would also be charged with driving with more than the allowable limit of alcohol in his bloodstream. He then provided the results of the testing to Constable Armstrong. He packed the instrument and departed the hospital at 11:36 p.m.. He submitted a request for an expert opinion by toxicologist, given that the sample had been taken more than two hours after the assumed time of driving. He did not print the certificate of analysis, because an expert opinion would be required in any event. He ultimately received a letter of opinion from the Centre for Forensic Sciences.

[24] In cross-examination, he confirmed that Mr. Annett was coherent, and that he did not make any notes of Mr. Annett being slow to respond to questions. When questioned about the grounds relayed by Constable Armstrong, he testified that Constable Armstrong indicated that the grounds included Mr. Annett's driving pattern including the accident, the odour of alcohol from Mr. Annett's breath, slow speech, delayed responses and difficulty recalling a phone number which he had for a period of two years.

Daryl Mayers

[25] Mr. Mayers is an expert in toxicology and is employed as a toxicologist with the Centre for Forensic Sciences. He was provided with information regarding this case which assumed a time of the accident involving the motor vehicle approximately between 8 p.m. and 8:03 p.m. Using the information provided, he extrapolated the blood alcohol content of Mr. Annett to be within a range of 155 to 205 milligrams of alcohol in 100 millilitres blood. That opinion was based on the assumptions detailed in the letter of opinion. He was of the opinion that if the driving took place anytime between 7 p.m. and 8:30 p.m., the projected range for blood alcohol content would be 155 to 230 milligrams of alcohol in 100 millilitres of blood.

[26] Mr. Mayers was of the opinion that impairment with respect to the ability to operate a motor vehicle becomes significant at a blood-alcohol content of 50 milligrams in 100 millilitres of blood. Mr. Mayers also gave evidence explaining the diagnostic tests performed automatically by the Intoxilyzer 8000 C. He explained the nature of the radio frequency interference detect message and its effect on the accuracy of the testing. He was of the opinion after reviewing the records that the approved instrument was in proper working order.

POSITIONS OF THE PARTIES

The Crown

[27] The Crown position is that Constable Armstrong, given the totality of circumstances, had reasonable and probable grounds to arrest Mr. Annett and to make the breath demand. The warrantless seizure of Mr. Annett's breath samples was conducted in compliance with the statutory prerequisites contained in section 254(3) of the Criminal Code. Evidence of slight impairment is sufficient to give grounds for a breath demand. Consideration of the totality of the circumstances included the existence of an accident. The fact that the results of the accident could have caused some of the indicia relied upon by the officer when the indicia could also have been caused by the consumption of alcohol does not mean that the officer had to eliminate those indicia from consideration, nor did it render those indicia unreliable.

The Defence

[28] The defence takes the position that, while Constable Armstrong may have had a reasonable suspicion that Mr. Annett had alcohol in his body, justifying a demand for a sample into an approved screening device, he did not have reasonable and probable grounds to arrest for an offence under section 253 and demand a breath sample. The car accident that evening was not an unexplained car accident. The evidence before the Court is that snow was falling and the roadway had not been plowed. The odour of alcohol indicated consumption, but not necessarily impairment. Other symptoms interpreted by the officer as indicia of impairment could be attributed to disorientation following the car accident. Slurred speech might be attributable to the cut on the inside of Mr. Annett's lip.

APPLICABLE LEGAL PRINCIPLES

Reasonable Grounds

[29] The issue of whether reasonable and probable grounds exist involves both an objective and a subjective component. The police officer must subjectively have an honest belief that the suspect has committed an offence, and objectively reasonable grounds for the police officer's belief must exist. The test is not an overly onerous one. A prima facie case need not be established. Appellate courts have cautioned that the test must not be inflated to the context of testing trial evidence. Reasonable grounds are credibly based probability. The subjective component amounts to an honest belief. The objective component then requires that the police officer's opinion was supported by objective facts. What must be assessed are the facts as understood by the police officer when belief was formed.

[30] Reasonable grounds are credibly based probability - reasonable probability. Judicial scrutiny of reasonable grounds for a breath demand must recognize the context within which the police officer's obligation operates. Police must make quick but informed decisions in impaired driving investigations. The officer must make the decision based upon available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. The officer is not required to establish a prima facie case for conviction before making an arrest, or to consider all of the alternative explanations for the observed conduct. There is no onus on an investigating officer to enquire as to possible causes of any indicia observed. The officer is not required to resolve possible alternate explanations for indicia before considering the circumstances as a whole. The fact that some of the traditional indicators of impairment, for example slurred speech or bloodshot eyes, are not present does not render the officer's subjective belief, based on the signs he did observe, objectively unreasonable. It is an error to test individual pieces of evidence which are offered to establish the existence of reasonable and probable grounds. The question is whether the total of the evidence offered provided reasonable and probable grounds, on an objective standard.

[31] An accident can be taken into account, along with other evidence, in determining whether an officer had reasonable and probable grounds to arrest an individual for impaired driving.

Impairment

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

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

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

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

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

[37] The results of breath, urine or blood tests may corroborate evidence attributing observed indicia of impairment to the consumption of alcohol or drugs. However, these results do not permit an inference as to the amount of alcohol consumed and its effect on the driver, unless an expert toxicologist establishes a correlation between the result and a level of impairment.

[38] An unexplained accident can be an indication of impairment of the ability to drive. However, it is simply one circumstance which must be weighed along with all of the other evidence at trial to determine whether the Crown has proven its case.

Over 80

[39] It is an offence to operate a motor vehicle with a blood-alcohol content in excess of 80 milligrams of alcohol in 100 millilitres of blood. Section 258 of the Criminal Code contains a series of separate presumptions which constitute evidentiary shortcuts available to the Crown in proving this offence.

[40] The first presumption is known as the presumptions of identity. Section 258(1)(c) of the Criminal Code presumes that the blood alcohol content of an accused at the time when the offence was alleged to have been committed is the same as the level at the time of the breath test. Section 258(1)(d.1) provides that if the blood alcohol level exceeds 80 milligrams at the time of the test, there is a presumption that it also exceeded 80 milligrams at the time when the offence was alleged to have been committed.

[41] The presumption of accuracy is contained in section 258(1)(g) of the Criminal Code. It provides that the technician's reading provides an accurate determination of the blood alcohol level at the time of the test. The section makes the certificate of analysis admissible as evidence of the facts stated in it without the need to call the qualified breathalyzer technician. The certificate of the qualified breathalyzer technician becomes admissible as proof that the samples were taken at the specified times and place; that the samples were analysed by an approved instrument; that the technician had ascertained the instrument to be in proper working order; and what the results of the two breath tests were.

[42] Both the presumption of identity and the presumption of accuracy can be rebutted by evidence to the contrary.

[43] One of the preconditions required for the Crown to rely upon the presumption of identity is the condition that the first breath sample shall have been taken not later than two hours after the offence was alleged to have been committed. Therefore, the Crown cannot rely upon the presumption as an evidentiary shortcut in this case. However, the Crown may prove those facts in another manner. The Crown may call the breath technician to establish the results of the tests and then call expert toxicology evidence to extrapolate the test results back to the time of driving. The Crown did that in this case.

ANALYSIS

[44] I begin with consideration of the Charter issue which relates to the officer's grounds for the demand and the arrest. The Crown must prove, on a balance of probabilities, that the warrantless seizure of breath was conducted in compliance with requirements of section 254(3) of the Criminal Code.

[45] Mr. Annett was involved in a single vehicle accident. While there is evidence that the roads were slippery and slushy, other drivers negotiated the roads without issue. The fact of the accident was a legitimate consideration when the officer considered his grounds. When Constable Armstrong entered the ambulance, he noted the smell of an alcoholic beverage, which became stronger when Mr. Annett spoke. Mr. Annett confirmed that he was the driver of the motor vehicle. Mr. Annett's speech was delayed and slurred, and he had difficulty recalling his own telephone number. Mr. Annett admitted to alcohol consumption, although he maintained that he had only consumed one beer. Constable Armstrong was not obligated to accept Mr. Annett's assertion that he only consumed one beer.

[46] I find that Constable Armstrong had an honest subjective belief that Mr. Annett had committed an offence under section 253 of the Criminal Code. Given the totality of the circumstances known to Constable Armstrong, and acknowledging the need for Constable Armstrong to make a quick but informed decision, I find that there was an objective basis to support his subjective belief related to the commission of an offence. Therefore, Constable Armstrong did have reasonable and probable grounds to demand a breath sample, and to arrest Mr. Annett.

[47] I note that Constable Armstrong was cross-examined on why some of the indicia which he described in his testimony was not recorded in his notebook entries. However, the notebook entries are simply a memory aid. They were made during the course of the events while Constable Armstrong was busy with other activities. He did record the indicia in his typed statement which he prepared a short while later during that shift. In my view, the omission of some of the indicia from the notebook entries and their inclusion in typed statement does not detract from the reliability of Constable Armstrong's evidence.

[48] I accept the evidence of Constable Budzyn that the approved instrument was in proper working order. I accept his evidence with respect to the breath tests and the resulting blood-alcohol readings.

[49] I accept the evidence of Ms. Close that they had seen Mr. Annett's vehicle just prior to the accident at the intersection and that they lost sight of it moments before the accident when they crested the hill. I accept her evidence that upon coming into contact with Mr. Annett, Ms. Ledger quickly telephoned 911. I accept her evidence that emergency personnel, including police, arrived on scene within a couple of minutes of the 911 call. I accept the evidence of Constable Armstrong that he was dispatched to the motor vehicle accident at 8:05 p.m. Therefore, I conclude that the accident occurred at approximately 8 p.m.

[50] I accept the expert testimony of Mr. Mayers that the blood alcohol content at the assumed time of the accident would have been between 155 milligrams and 205 milligrams of alcohol in 100 millilitres of blood. I accept his evidence that if the driving took place anytime between 7 p.m. and 8:30 p.m., the projected range for blood alcohol content would be 155 to 230 milligrams of alcohol in 100 millilitres of blood. I accept the evidence of Mr. Mayers that the range of blood alcohol content which he extrapolated resulted in impairment at the time of driving, and that impairment of the ability to operate a motor vehicle becomes significant at a blood-alcohol content of 50 milligrams in 100 millilitres of blood. The Crown has proven the charge under section 253(1)(b) beyond a reasonable doubt.

[51] With respect to the impaired driving charge, I note that the evidence of Constable Armstrong related to physical symptoms of impairment were limited to slurred speech and delayed responses. Given that when Constable Armstrong came into contact with Mr. Annett, he was already in the ambulance, there was no opportunity to observe Mr. Annett's symptoms as they related to symptoms such as balance and coordination. The observations of Ms. Close at the scene are also far from conclusive with respect to impairment. Similarly, Constable Budzyn's ability to observe Mr. Annett for physical symptoms of impairment was limited given that Mr. Annett was in a hospital bed. The fact of the vehicle accident could be an indication of impairment, but could also be attributable to road conditions. In all of the circumstances, I am left with a reasonable doubt as to the evidence of impairment of the ability to operate the motor vehicle.

CONCLUSIONS

[52] There will be a finding of not guilty with respect to the charge under section 253(1)(a). There will be a finding of guilt with respect to the charge under section 253(1)(b).

Released: November 4, 2016

Signed: "Justice A. Thomas McKay"