Court File and Parties

Ontario Court of Justice

Date: 2016-11-25

Court File No.: Brampton 14-9021

Between:

Her Majesty the Queen

— and —

Mr. Terrence Thompson

Before: Justice Patrice F. Band

Heard: November 15, 2015, April 4, July 22 and October 5, 2016

Reasons for Judgment released on: November 25, 2016

Counsel:

• Ms. J. Vlacic, counsel for the Crown
• Mr. D. Zbarsky, counsel for the defendant Mr. T. Thompson

BAND, J.:

I. INTRODUCTION AND ALLEGATIONS

[1] Mr. Thompson stood trial on an Information alleging that he had committed the following offences:

• Dangerous Driving
• Flight from Police
• Driving with Excess Alcohol ("Over 80")

[2] In the early morning hours of July 21, 2014, Mr. Thompson was driving an SUV on Highway 410 when he came to the attention of PC Thomas Williams. According to the officer, Mr. Thompson was driving approximately 160 km/h and going back and forth between lanes. He pursued him and turned on his emergency equipment. It is alleged that rather than pull over, Mr. Thompson changed lanes again and passed another driver. Then, without slowing down, Mr. Thompson went from the left-most lane to the right most lane in one motion. He then appeared to attempt to pass a truck by moving onto the shoulder before ultimately coming to a stop. After a brief investigation, PC Williams detected an odour of an alcoholic beverage emanating from Mr. Thompson. He placed him under arrest and demanded that he provide breath samples into an approved screening device ("ASD"). Mr. Thompson's samples registered a "fail" on the device, and PC Williams demanded that he provide further samples into an approved instrument. Those samples yielded readings of 156 and 143 milligrams of alcohol in 100 millilitres of blood, respectively (the "BAC results").

II. THE ISSUES AT TRIAL

[3] Mr. Thompson challenged the Crown's case on the basis of the Charter and the merits, so the trial proceeded in a blended fashion.

[4] Mr. Thompson testified on the Charter application and the trial proper.

A. Charter issues: ss. 8 and 10(b)

[5] Mr. Thompson alleges that PC Williams did not have the requisite grounds to make the breath demand at the roadside. Whether or not Mr. Williams provided samples of his breath into an ASD is the principal matter of controversy. Mr. Thompson said no ASD was used that morning. PC Williams testified that after providing two insufficient samples, Mr. Thompson provided a sufficient sample that registered a "fail." It was on that basis that he made the breath demand.

[6] Mr. Thompson further alleges that his right to counsel of choice was breached in three ways. First, the police advised him, wrongly, that his options were counsel of choice or duty counsel; second, they failed to facilitate his access to counsel of choice; and third, when counsel of choice did not respond, they "diverted" him to duty counsel rather than give him the opportunity to identify and access another private counsel.

[7] Mr. Thompson seeks relief by way of exclusion of the BAC results pursuant to s. 24(2).

[8] An assessment of PC Williams' and Mr. Thompson's credibility and reliability is central to the Charter allegations.

B. Issues on the merits

[9] Mr. Thompson makes three arguments on the trial proper. The breath samples were not taken "as soon as practicable," therefore, the Crown has failed to prove the Over 80 count beyond a reasonable doubt. He also argues that the dangerous driving and flight from police counts have not been proven beyond a reasonable doubt.

III. SUMMARY OF EVIDENCE HEARD AT TRIAL

PC Williams – the investigation – in-chief

[10] PC Williams has been a police officer since 2008. In 2011, he became a qualified breath technician. He has investigated dozens of impaired driving cases.

[11] Because his note-taking became an issue in the trial, I must explain that PC Williams took notes in two different forms: on his dash-pad and on the alcohol influence report.

[12] PC Williams' account of the pertinent events of July 21, 2014 was as follows. He was driving in the centre lane on Highway 410 in a completely unmarked police cruiser. The emergency lights are LEDs that sit behind the windshield and possibly on the outside of the mirrors. It is also equipped with a siren.

[13] The road conditions were dry, visibility was good and traffic was light. At approximately 12:58 a.m., he saw Mr. Thompson's car approaching very quickly from behind and past him in the left lane. Mr. Thompson then moved into the centre lane to pass a car that was in the left lane. He did this at a high rate of speed. PC Williams then decided to follow and "pace" him by maintaining a steady speed and distance. He paced Mr. Thompson at 160 km/h over a kilometre. His speedometer was calibrated and in good working order.

[14] At that point, he turned on his emergency equipment. Mr. Thompson did not stop his car for at least 300 m. Rather, he moved to the left lane and passed another car. PC Williams believed that he notified dispatch about a "Fail to Stop".

[15] Then, he moved from the left lane across the centre lane and into the right lane in one motion. He was still traveling at a high rate of speed, but PC Williams could not say if it was 160 km/h. Mr. Williams then drove on the shoulder in an apparent attempt to pass a pick up truck. Mr. Williams did not do so. Instead, he returned to the right lane. Traffic then required him to slow down and he came to a stop on the right shoulder.

[16] The pursuit lasted a minute or less over a distance of ½ - ¾ of a kilometre.

[17] PC Williams could not recall whether Mr. Thompson had signalled any of his lane changes. He did not observe any other drivers have to take evasive action or blow their horns in response to Mr. Thompson's driving.

PC Williams – arrest and rights – in-chief

[18] When he approached Mr. Thompson's car, he heard very loud music. His intention at that time was to arrest Mr. Thompson for dangerous driving. He testified that he did so at 12:58 a.m., and that Mr. Thompson came out of the car. He searched Mr. Thompson and found his driver's license. He then placed him in the back seat of his cruiser.

[19] At 1:07 a.m., PC Williams read Mr. Thompson his right to counsel, which he appeared to understand. This included mention of "any lawyer you wish." When asked if he wanted to call a lawyer now, Mr. Thompson said "I can, ya I do." PC Williams asked him if he had his own lawyer and Mr. Thompson answered "I have my own lawyer." At 1:08 a.m., PC Williams cautioned Mr. Thompson.

[20] At 1:15 a.m., PC Williams and Mr. Thompson spoke again about counsel. Mr. Thompson told him he had counsel's card in his wallet. It was during this exchange that PC Williams first detected the odour of alcohol on Mr. Thompson's breath. They might have been a foot or two away from each other at this time. PC Williams also candidly volunteered that they had stood close to each other during the arrest as well.

[21] PC Williams testified that he formed the reasonable suspicion that Mr. Thompson had been driving with alcohol in his system. In response to a leading question by the Crown, PC Williams testified he also believed that Mr. Thompson's driving constituted a departure from the norm.

[22] At 1:17 a.m., PC Williams read the ASD demand to Mr. Thompson. He indicated that he did not understand it, so PC Williams read it three more times. When asked if he understood, Mr. Williams said "mmm hmmm." PC Williams asked him if that meant yes, and he said yes.

[23] At 1:19 a.m., PC Williams demonstrated the use of the ASD and Mr. Thompson told him he had had two Heinekens earlier.

[24] Mr. Thompson's first two samples were insufficient. The third, which was received at 1:21 a.m., registered a "fail."

[25] At 1:21 a.m., PC Williams re-arrested Mr. Williams for Over 80, and advised him of his right to counsel again at 1:22 a.m., the same way he had earlier. In response to the question whether he understood, Mr. Thompson said "I don't know, you tell me, I told you before I had 2 beers." So at 1:23 a.m., PC Williams re-read the right to counsel and Mr. Thompson told him he had his own lawyer.

[26] From 1:25 to 1:26 a.m., PC Williams cautioned Mr. Thompson and read him the breath demand. Mr. Thompson said "I know but I'm going to call my lawyer first." He also asked about the keys to his car. PC Williams went to Mr. Thompson's car to retrieve a set of keys. Mr. Thompson told him it was the wrong set, so he went back.

[27] At 1:33 a.m., PC Williams set off for the detachment and took the quickest route to get there. They arrived at 1:44 a.m. It was then that he realized that he had not advised Mr. Thompson that he was also under arrest for fail to stop or given him his right to counsel in relation that charge. He did so at 1:45 a.m. When asked if he wanted to call a lawyer, Mr. Thompson said "I told you, I gave you my lawyer."

[28] At 1:50 a.m., PC Williams called Mr. Zbarsky's cell phone and left a message. At 1:51 a.m., he called the other number for Mr. Zbarsky and believed he had left a message there as well.

[29] At 2:22 a.m., PC Williams told Mr. Thompson that Mr. Zbarsky had not called back and asked him if he wished to speak to duty counsel. He did so because it was Sunday morning, he had left a message on counsel's cell phone and a half hour had passed. Mr. Thompson said yes.

[30] At 2:23 a.m., PC Williams left a message for duty counsel, who called back at 2:35 a.m. Mr. Thompson spoke to duty counsel between 2:38 and 2:40 a.m.

[31] In the breath room, PC Williams went over Mr. Thompson's right to counsel again. Mr. Thompson told him he understood. The breath samples were obtained at 2:50 and 3:13 a.m.

[32] During that time, PC Williams could still smell the odour of alcohol on Mr. Thompson's breath, but did not observe any signs of impairment.

[33] Mr. Zbarsky never called back.

PC Williams – cross-examination

[34] PC Williams could not recall when he made his notations on his dash pad. It could have been partly while pursuing Mr. Thompson or at the roadside. Later, he testified that it had to have been after the stop. But later, he testified that he could have made some notes while pursuing Mr. Thompson. It is a practice he employs often, and he acknowledged that it could be distracting. He also agreed that it is possible that he could be in error as to his observations if he was making notes at the time.

[35] He agreed that it was possible that Mr. Thompson had signalled his lane changes. He did not agree that Mr. Thompson paused briefly in the centre lane during his lane change from left to right. Despite some traffic in front of him that hindered his observations, PC Williams was able to see Mr. Thompson's vehicle because it was an SUV.

[36] PC Williams agreed that his dash pad notes indicated that his first observations of Mr. Thompson took place at 12:58 a.m. The time of the stop was 12:58:33. When confronted with this, he indicated that he had made some observations prior to 12:58 a.m. He explained that he got the time of 12:58 a.m. from dispatch later. He only contacted dispatch after pacing Mr. Thompson for approximately a minute and believing that he was attempting to flee. However, he agreed that he first contacted dispatch at 12:58:02.

[37] PC Williams agreed with the suggestion that what he told dispatch about was dangerous driving, rather than fail to stop, as he had indicated in his evidence-in-chief. He explained that he was making observations on an on-going basis.

[38] PC Williams disagreed that the truck in the right lane was a tractor-trailer. He maintained that it was a pick up truck. He believed that Mr. Thompson tried to pass it on the shoulder.

[39] The pursuit lasted less than a minute.

[40] The arrest for fail to stop was not an afterthought. It had been on his mind earlier, but it was an error not to arrest Mr. Thompson for it at the scene. When he stopped Mr. Thompson, the dangerous driving offence was top of mind. At first, he was concerned about speeding but things changed.

[41] PC Williams agreed that Mr. Thompson appeared to be reluctant to get out of his SUV, and that he took control of him. In his notes, he had written:

I ask him to get out; he does not get out; I open door; advise arrest dang drive; driver exits motor vehicle and handcuffed.

[42] He agreed that taking control of someone is different from them simply exiting their car.

[43] PC Williams agreed that he read Mr. Thompson his right to counsel four times. He also agreed that he asked him if he had his own lawyer or wished to call duty counsel. By then, Mr. Thompson had made it clear that he had his own lawyer. So, he agreed, there was no reason to ask him that question repeatedly.

[44] PC Williams also agreed that that question could give the impression that Mr. Thompson had only two choices.

[45] PC Williams disagreed with the suggestion that no ASD had been used.

[46] PC Williams also explained that he had gone to look for documents in Mr. Thompson's SUV. He did not recall how the conversation went, or make note of it or the time it took. He denied looking for drugs or anything other than documentation. This process could have taken 4-5 minutes.

[47] He recalled that other officers attended the scene, but he could not recall whether he called for a tow or whether it had arrived before he took Mr. Thompson to the detachment. He could not recall if he had sent any other officers away in the meantime. He could not recall whether there were officers left on scene at the time he left. It is possible that he and Mr. Thompson remained on the scene until the tow truck arrived. He had no specific recollection of issues surrounding the tow truck.

Mr. Thompson – in-chief

[48] Mr. Thompson is a 47 year old married man. He has two adult children and a niece and nephew. At the time of the incident, he worked at a number of locations, including a restaurant.

[49] On the night in question, he brought food to his niece and nephew on his way home from the restaurant. They watched TV and he had a beer. He then left for home. It was a nice July night so he was playing loud music. When he got onto Highway 410, he immediately saw the police car. He recognized it from its antennas and lights.

[50] He was behind it for a time, and then traffic in its lane slowed down. As he passed it, he made eye contact with PC Williams. He continued driving. He could see the police car in his rear view mirror for 1-1.5 km. He only made two lane changes. Both times he signalled. He thought he was going 110-120 km/h. Later, he testified it could have been slower than that. Or possibly faster. He was just guessing.

[51] Then he saw its lights flash. He did not think it was for him. He pulled into the centre lane but could not immediately go to the right lane because a tractor trailer was in the way. When the police car changed lanes to get behind him, he understood it was about him. He pulled over as soon as he could. He did not try to pass the tractor trailer from the shoulder. It took him a minute or less to pull over after he saw the lights flashing.

[52] The police officer did not appear to see him and pulled up in front of his car.

[53] PC Williams came up to his vehicle and told him to "turn the f'in music off and get out of the car." PC Williams used more profanity and yanked his hand. Mr. Thompson had to struggle to undo his seatbelt. PC Williams talked about dangerous driving and also asked him why he was running.

[54] PC Williams then placed him in the police car. Another officer attended but PC Williams sent him on his way. PC Williams then told Mr. Thompson he had to get his documents from his vehicle. According to Mr. Thompson, PC Williams returned with only keys. His documents were still in his vehicle when he retrieved it the following week. PC Williams asked if he had another set of keys, and Mr. Thompson told him about his house keys. PC Williams went to retrieve those for him.

[55] The tow truck driver arrived, and PC Williams told him to "hook" the car up. They left and the tow truck followed them.

[56] At no time did PC Williams present an ASD to Mr. Thompson. He only made one breath demand. He did so at the detachment.

[57] Mr. Thompson testified that he told PC Williams at the roadside that he had had two beers with his kids.

[58] At first, Mr. Thompson testified that he had received his rights to counsel at the station. He then corrected himself and acknowledged that he had received them at the scene. He indicated that PC Williams asked if he had a lawyer. He told him that he did, and told him he had counsel's card in his wallet. He then testified that PC Williams did not ask him if he had a lawyer at the scene. But he told PC Williams about his lawyer's card at the scene. He also testified that PC Williams did not mention duty counsel until arriving at the detachment.

[59] Once at the station, PC Williams did not advise Mr. Thompson of his right to counsel until after the breath samples were obtained. He also testified that he was not given the opportunity to speak to duty counsel until after the tests were obtained. At that time, duty counsel told him "not to do anything until you speak to your lawyer." Counsel asked him again, twice, about the timing of that discussion with duty counsel. Both times, he gave the same response: it took place after the breath testing. This was just prior to the lunch break.

[60] When PC Williams told him that Mr. Zbarsky had not called back, he asked him only if he wanted to speak to duty counsel. His understanding was that he only had two options: Mr. Zbarsky or duty counsel.

[61] When asked what he would have done if PC Williams had offered him a third option – that is, private counsel other than Mr. Zbarsky – Mr. Thompson's response was "private would always be the better one."

[62] After lunch, and toward the end of his examination in chief, Mr. Thompson testified that he was told that Mr. Zbarsky had not called back and that duty counsel was on the phone. He spoke to duty counsel. This took place before he provided his breath samples.

Mr. Thompson – cross-examination

[63] In cross-examination, Mr. Thompson added that duty counsel told him to provide samples and then talk to a lawyer as soon as possible. He agreed with Crown counsel that there was a big difference between this evidence and his earlier testimony about the timing of that call. He characterized it as a "simple misunderstanding."

[64] Mr. Thompson said PC Williams only talked about counsel once at the roadside. He only asked him if he had a lawyer. When Crown counsel asked whether the officer told him anything else in relation to the right to counsel, he said "no, they do their, their cop stuff that they read your rights or you do whatever." He then agreed that it is possible that PC Williams said more about the right to counsel. However, he denied that PC Williams told him he had the right to contact any lawyer he wished. He also denied that PC Williams provided a phone number for duty counsel.

[65] He could not recall having his rights read again in the context of being advised of additional charges, but acknowledged that it was possible. He also testified that he was not arrested for the offence of Over 80 until after he provided his breath samples at the detachment. He was contradicted by the breath room video, where he was advised of the reasons for arrest.

[66] On that video, in response to the allegation of flight from police, Mr. Thompson told the officer that he had not seen him. Crown counsel suggested to him that this was contrary to his evidence-in-chief, and asked if had lied on the video. His answer was that it was not a lie, but just something he said. "Everyone makes mistakes."

[67] The following exchange took place on the issue of counsel of choice:

Q. Well, what I suggest to you, sir, and again, you can disagree, is that you knew that if you didn't get a hold of your lawyer, you knew that you could call another lawyer.

A. Yeah, but how am I going to get in touch with another lawyer?

[68] Mr. Thompson then confirmed that he never inquired about another lawyer or told the police that he wanted to speak to another lawyer. Nor did he tell police that he was dissatisfied with duty counsel or their advice.

[69] Mr. Thompson also confirmed that his breath would have smelled of alcohol because he had consumed two beers.

IV. CREDIBILITY & RELIABILITY

Mr. Thompson

[70] I did not believe Mr. Thompson's testimony and am unable to rely on it where it is not corroborated by other evidence. On its own, it is incapable of meeting his burden of proof concerning the right to counsel issue or of raising a reasonable doubt on the merits. The reasons for this are as follows.

[71] Mr. Thompson contradicted himself, was inconsistent, was forgetful and displayed a certain carelessness with the truth. He contradicted himself as to whether he was given his rights before or after providing his breath samples at the station. This was a significant contradiction, especially when viewed in context. The question was asked by his counsel several times before lunch. At the end of his examination in chief, it was corrected by a leading question "and then you took the test." No explanation was offered at the time. In cross-examination, his explanation that it was a simple misunderstanding struck me as incredible.

[72] Mr. Thompson was inconsistent as to the advice he received from duty counsel. He was also inconsistent about how many beers he had consumed. He first testified that he had one beer while watching TV. He later testified to drinking two. (This, incidentally, was consistent with what he had told PC Williams).

[73] Mr. Thompson was very hazy about the content of the rights that were read to him at the roadside, and how many times they were read. Ultimately, he agreed that it was possible that PC Williams had told him more about the right to counsel, and that this had taken place several times. At best, Mr. Thompson was forgetful.

[74] Finally, about telling PC Williams that he had not seen him, Mr. Thompson's response – "it's just something I said" – shows a certain carelessness with the truth.

PC Williams

[75] I found PC Williams to be a credible witness. He dealt fairly with the gaps in his notes and in his observations, and did not appear to me to be exaggerating the seriousness of Mr. Thompson's driving or its effect on other drivers. He also readily acknowledged that by repeating questions about a lawyer or duty counsel, he could have left Mr. Thompson with the impression that he only had two options.

[76] The issues raised in cross-examination, by and large, were peripheral. For example, the call for a tow and the time of its arrival, the discussion surrounding Mr. Thompson's documents and whether PC Williams had sent any other officers away. These had no impact on my assessment of his credibility or reliability.

[77] His failure to testify that he pulled Mr. Thompson from the car until cross-examination requires a bit more consideration. Given the pursuit and the driving, I believe PC Williams that he approached the car with the intention of arresting Mr. Thompson. As a result, one can expect that he took control of him. His description – in-chief and in his notes – is an understatement to be sure. But in the circumstances, I do not find that it affected his credibility.

[78] Likewise, it must be noted that his evidence changed as to the reason he gave to dispatch for stopping Mr. Thompson. In the circumstances of a pursuit at highway speeds (or above), where the situation is fluid and changing, this did not trouble me. Explaining one's grounds in such a dynamic situation can be difficult.

[79] For the same reason, I was not troubled by the fact that PC Williams forgot to arrest Mr. Thompson for fleeing from police until they arrived at the detachment.

[80] The issues surrounding PC Williams' note-taking and the times at play are important, and will be discussed below, in relation to the dangerous driving count.

V. RESOLUTION OF THE ISSUES

A. Reasonable and probable grounds

[81] For the reasons described above, I reject Mr. Thompson's testimony that an ASD was not used at the roadside. Moreover, I believe PC Thompson's evidence that it was. His evidence was detailed as to content and chronology. Since Mr. Thompson's sample registered a fail, the ensuing breath demand was valid and based on reasonable and probable grounds.

[82] I would add that I have no doubt that PC Williams had a number of objectively valid reasons for stopping Mr. Thompson. I also believe that he detected an odour of an alcoholic beverage coming from Mr. Thompson's breath. Therefore, the ASD demand was also valid and based upon the required grounds.

B. The right to counsel

[83] I believed PC Williams that he read to Mr. Thompson his right to counsel from the card several times and that this included reference to "any lawyer you wish." I did not believe Mr. Thompson's evidence to the contrary.

[84] However, PC Williams' repeatedly following up with the question "do you want to speak to your lawyer or duty counsel"

[85] had the potential to mislead someone in Mr. Thompson's position into believing they only had those two options.

[86] If that is his practice, it should stop.

[87] But in this case, I do not believe that Mr. Thompson was misled.

[88] First, Mr. Thompson's responses at the scene demonstrate that he was focused on contacting Mr. Zbarsky. He gave that response several times, including once when the breath demand was read to him.

[89] What is more, the rest did not matter to him. He made this clear in cross-examination, when he characterized the reading of the right to counsel as "their cop stuff that they read your rights or you do whatever."

[90] Second, based on his evidence in cross-examination, I find that Mr. Thompson understood, at the time, that his options included calling private counsel other than Mr. Zbarsky.

[91] I also find that PC Williams diligently performed his duty to facilitate Mr. Thompson's access to counsel of choice. He obtained Mr. Zbarsky's card from Mr. Thompson. He left a message on Mr. Zbarsky's cell phone and waited a half hour. At that time of the morning on a Sunday, that was a reasonable period. Whether or not he had also left a message at counsel's office is immaterial in this case.

[92] Even if I am wrong about that, and PC Williams' efforts are seen to be wanting, I would turn to Mr. Thompson's actions. See R. v. Blackest, [2006] O.J. No. 2999 (S.C.J.), cited in R. v. Carter, 2008 ONCJ 165, a case submitted by Mr. Zbarsky in this trial, at para. 22.

[93] Mr. Thompson understood his rights, yet asked no further questions about accessing private counsel. He agreed to speak to duty counsel and expressed no dissatisfaction after doing so. I would find that Mr. Thompson did not act diligently if his desire was to speak to private counsel other than Mr. Zbarsky.

[94] For the same reasons, I find that duty counsel was not foist upon Mr. Thompson.

[95] As a result, I find that Mr. Thompson's right to counsel was not breached.

C. As soon as practicable

[96] The Crown must prove beyond a reasonable doubt that Mr. Thompson's breath samples were taken as soon as practicable.

[97] The test to be applied is the one set out by the Court of Appeal in R. v. Vanderbruggen [2006] O.J. No. 3474. That is, whether the breath tests were administered "within a reasonably prompt time in the overall circumstances."

[98] The touchstone of this analysis is whether the police acted reasonably, bearing in mind that the Code permits an outside limit of two hours from the time of the offence to the taking of the first test.

[99] In this case, the first test took place approximately 1 hour and 52 minutes after Mr. Thompson was stopped. This period included the half hour during which PC Williams waited for Mr. Zbarsky to call back. The only real question surrounds the time PC Williams took to locate documents or keys in Mr. Thompson's SUV, and the arrival of the tow truck. True, PC Williams was unable to give a full accounting of these times. But the law does not require a minute-by-minute account. Also, I was not left with the impression that the passage of time was of no concern to PC Williams.

[100] For these reasons, I find that the breath tests were administered reasonably promptly in all the circumstances.

D. Dangerous driving

[101] For the following reasons, I have a reasonable doubt that Mr. Thompson drove dangerously.

[102] In cross-examination, PC Williams' account of the times when he first observed Mr. Thompson and when he notified dispatch was, frankly, confusing. As a result, I cannot find that PC Williams observed Mr. Thompson driving for more than approximately 30 seconds.

[103] Nor do I find that Mr. Thompson failed to signal. PC Williams said it was possible that he had. Mr. Thompson is entitled to the benefit of the doubt about that.

[104] PC Williams' testimony that Mr. Thompson appeared to attempt to pass the pick-up truck from the shoulder was skeletal and conclusory. I do not rely on it.

[105] Keeping in mind the road and traffic conditions, this evidence does not convince me beyond a reasonable doubt that Mr. Thompson's driving constituted a danger to the public.

[106] The Crown also urged me to rely on Mr. Thompson's consumption of alcohol in the mens rea analysis. She relies on R. v. Settle [2010] B.C.J. No. 1918 (C.A.) and R. v. Kraus, [2015] O.J. No. 5639 (S.C.J.). She further urged me to consider Mr. Thompson's BAC results.

[107] Even if I am wrong about the actus reus, I would have a reasonable doubt as to the mens rea. Even with the consumption of alcohol, the Crown's evidence falls short of establishing a pattern of disregard for the safety of other users of the road.

[108] I do not rely on Mr. Thompson's BAC results in this analysis. In my view, absent expert evidence as to a level of impairment, it would be an error to do so: see R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.).

E. Flight from Police

[109] Mr. Thompson came to a stop approximately 30 seconds after PC Williams turned on his emergency equipment. To do so, he had to cross two lanes of live traffic. Also, his music was very loud and could have blocked out PC Williams' sirens. In these circumstances, I am left with a reasonable doubt that Mr. Thompson failed to stop in order to evade PC Williams.

VI. CONCLUSION

[110] The breath samples were taken in compliance with the Charter and the requirements of the Criminal Code. I am satisfied beyond a reasonable doubt that Mr. Thompson was operating a motor vehicle while his BAC was above the legal limit. A finding of guilt will be entered on Count 3 ("Over 80").

[111] Count 1 (dangerous driving) and Count 2 (flight from police) will be marked as dismissed.

Released: November 25, 2016

Justice Patrice F. Band